| 1 | A bill to be entitled | 
| 2 | An act relating to public construction works; amending s.  | 
| 3 | 255.20, F.S.; revising requirements for a county,  | 
| 4 | municipality, special district, or other political  | 
| 5 | subdivision of the state to competitively award contracts  | 
| 6 | for certain construction projects; revising exceptions to  | 
| 7 | those requirements; providing procedures for an exception  | 
| 8 | to those requirements when all bids or proposals are  | 
| 9 | greater than a threshold amount; providing that certain  | 
| 10 | construction contract terms limiting the right of a  | 
| 11 | contractor to recover certain costs or damages are void;  | 
| 12 | providing that certain decisions by the local governmental  | 
| 13 | entity concerning additional compensation or time to which  | 
| 14 | a contractor is entitled are subject to de novo review in  | 
| 15 | state court; amending s. 336.41, F.S.; revising provisions  | 
| 16 | authorizing a county to employ labor and provide equipment  | 
| 17 | for road and bridge projects; removing authorization for a  | 
| 18 | county to use its own resources for constructing and  | 
| 19 | opening new roads and bridges; revising requirements for  | 
| 20 | certain county road and bridge projects to be let to  | 
| 21 | contract; authorizing the governing body of a municipality  | 
| 22 | to employ labor and provide equipment for repair and  | 
| 23 | maintenance of roads and bridges; requiring county and  | 
| 24 | municipal construction and reconstruction projects using  | 
| 25 | certain tax revenues to be let to contract; providing  | 
| 26 | exceptions; authorizing a municipality to require that  | 
| 27 | persons interested in performing work under the contract  | 
| 28 | first be certified or qualified to do the work when the  | 
| 29 | contract amount exceeds a certain threshold; providing for  | 
| 30 | qualification of a contractor by the Department of  | 
| 31 | Transportation; providing that a contractor may be  | 
| 32 | considered ineligible to bid by the municipality if the  | 
| 33 | contractor is behind an approved progress schedule by more  | 
| 34 | than a certain amount on another project for that  | 
| 35 | municipality at the time of the advertisement of the work  | 
| 36 | requiring prequalification; authorizing an appeal process;  | 
| 37 | requiring prequalification criteria and procedures to be  | 
| 38 | published prior to advertisement or notice of  | 
| 39 | solicitation; requiring notice of a public hearing for  | 
| 40 | comment on such criteria and procedures prior to adoption;  | 
| 41 | requiring the procedures to provide for an appeal process  | 
| 42 | for objections to the prequalification process; requiring  | 
| 43 | the municipality to publish for comment, prior to  | 
| 44 | adoption, the selection criteria and procedures to be used  | 
| 45 | if such procedures would allow selection of other than the  | 
| 46 | lowest responsible bidder; requiring the selection  | 
| 47 | criteria to include an appeal process; providing an  | 
| 48 | effective date. | 
| 49 | 
  | 
| 50 | Be It Enacted by the Legislature of the State of Florida: | 
| 51 | 
  | 
| 52 |      Section 1.  Subsection (1) of section 255.20, Florida  | 
| 53 | Statutes, is amended to read: | 
| 54 |      255.20  Local bids and contracts for public construction  | 
| 55 | works; specification of state-produced lumber.-- | 
| 56 |      (1)  A county, municipality, special district as defined in  | 
| 57 | chapter 189, or other political subdivision of the state seeking  | 
| 58 | to construct, or improve, repair, or perform maintenance on a  | 
| 59 | public building, structure, facility, or other public  | 
| 60 | construction works must competitively award to an appropriately  | 
| 61 | licensed contractor each project that is estimated in accordance  | 
| 62 | with generally accepted cost-accounting principles to have total  | 
| 63 | construction project costs of more than $200,000. For electrical  | 
| 64 | work, local government must competitively award to an  | 
| 65 | appropriately licensed contractor each project that is estimated  | 
| 66 | in accordance with generally accepted cost-accounting principles  | 
| 67 | to have a cost of more than $50,000. As used in this section,  | 
| 68 | the term "competitively award" means to award contracts based on  | 
| 69 | the submission of sealed bids, proposals submitted in response  | 
| 70 | to a request for proposal, proposals submitted in response to a  | 
| 71 | request for qualifications, or proposals submitted for  | 
| 72 | competitive negotiation. This subsection expressly allows  | 
| 73 | contracts for construction management services, design/build  | 
| 74 | contracts, continuation contracts based on unit prices, and any  | 
| 75 | other contract arrangement with a private sector contractor  | 
| 76 | permitted by any applicable municipal or county ordinance, by  | 
| 77 | district resolution, or by state law. For purposes of this  | 
| 78 | section, construction costs include the cost of all labor,  | 
| 79 | except inmate labor, and include the cost of equipment and  | 
| 80 | materials to be used in the construction of the project. Subject  | 
| 81 | to the provisions of subsection (3), the county, municipality,  | 
| 82 | special district, or other political subdivision may establish,  | 
| 83 | by municipal or county ordinance or special district resolution,  | 
| 84 | procedures for conducting the bidding process. | 
| 85 |      (a)  Notwithstanding any other law to the contrary, a  | 
| 86 | county, municipality, special district as defined in chapter  | 
| 87 | 189, or other political subdivision of the state seeking to  | 
| 88 | construct or improve bridges, roads, streets, highways, or  | 
| 89 | railroads, and services incidental thereto, at costs in excess  | 
| 90 | of $250,000 may require that persons interested in performing  | 
| 91 | work under contract first be certified or qualified to perform  | 
| 92 | such work. Any contractor may be considered ineligible to bid by  | 
| 93 | the governmental entity if the contractor is behind on  | 
| 94 | completing an approved progress schedule for the governmental  | 
| 95 | entity by 10 percent or more at the time of advertisement of the  | 
| 96 | work. Any contractor prequalified and considered eligible by the  | 
| 97 | Department of Transportation to bid to perform the type of work  | 
| 98 | described under the contract shall be presumed to be qualified  | 
| 99 | to perform the work described. The governmental entity may  | 
| 100 | provide an appeal process to overcome that presumption with de  | 
| 101 | novo review based on the record below to the circuit court. | 
| 102 |      (b)  With respect to contractors not prequalified with the  | 
| 103 | Department of Transportation, the governmental entity shall  | 
| 104 | publish prequalification criteria and procedures prior to  | 
| 105 | advertisement or notice of solicitation. Such publications shall  | 
| 106 | include notice of a public hearing for comment on such criteria  | 
| 107 | and procedures prior to adoption. The procedures shall provide  | 
| 108 | for an appeal process within the authority for objections to the  | 
| 109 | prequalification process with de novo review based on the record  | 
| 110 | below to the circuit court within 30 days. | 
| 111 |      (c)  The provisions of this subsection do not apply: | 
| 112 |      1.  When the project is undertaken to replace, reconstruct,  | 
| 113 | or repair an existing facility damaged or destroyed by a sudden  | 
| 114 | unexpected turn of events, such as an act of God, riot, fire,  | 
| 115 | flood, accident, or other urgent circumstances, and such damage  | 
| 116 | or destruction creates: | 
| 117 |      a.  An immediate danger to the public health or safety; | 
| 118 |      b.  Other loss to public or private property which requires  | 
| 119 | emergency government action; or | 
| 120 |      c.  An interruption of an essential governmental service. | 
| 121 |      2.  When, after notice by publication in accordance with  | 
| 122 | the applicable ordinance or resolution, the governmental entity  | 
| 123 | does not receive any responsive bids or proposals responses. | 
| 124 |      3.  To construction, remodeling, repair, or improvement to  | 
| 125 | a public electric or gas utility system when such work on the  | 
| 126 | public utility system is performed by personnel of the system. | 
| 127 |      4.  To construction, remodeling, repair, or improvement by  | 
| 128 | a utility commission whose major contracts are to construct and  | 
| 129 | operate a public electric utility system. | 
| 130 |      5.  When the project is undertaken as repair or maintenance  | 
| 131 | of an existing public facility. | 
| 132 |      5.6.  When the project is undertaken exclusively as part of  | 
| 133 | a public educational program. | 
| 134 |      6.7.  When the funding source of the project will be  | 
| 135 | diminished or lost because, through no fault of the governmental  | 
| 136 | entity, the time required to competitively award the project  | 
| 137 | after the funds become available exceeds the time within which  | 
| 138 | the funding source must be spent. | 
| 139 |      7.8.  When the local government has competitively awarded a  | 
| 140 | project to a private sector contractor and the contractor has  | 
| 141 | abandoned the project before completion or the local government  | 
| 142 | has terminated the contract. | 
| 143 |      8.9.  When, after receipt of bids or proposals, all  | 
| 144 | responsive bids or proposals are at least 10 percent greater  | 
| 145 | than the local government's estimated cost of the project. In  | 
| 146 | this case, the local government may request that a professional  | 
| 147 | engineer not affiliated with the local government prepare an  | 
| 148 | independent estimate of the fair market cost of the project. If  | 
| 149 | the professional engineer's cost estimate is within 10 percent  | 
| 150 | of at least one of the responsive bids or proposals, the project  | 
| 151 | must be competitively awarded. If the professional engineer's  | 
| 152 | cost estimate is not within 10 percent of at least one of the  | 
| 153 | responsive bids or proposals, the local government may request  | 
| 154 | that a certified public accountant not affiliated with the local  | 
| 155 | government prepare, in conjunction with the professional  | 
| 156 | engineer, an estimate of the cost of the project if performed by  | 
| 157 | the local government using its own services, employees, and  | 
| 158 | equipment and using generally accepted accounting principles  | 
| 159 | that fully account for all employee compensation and benefits,  | 
| 160 | equipment and material costs, and any other associated costs and  | 
| 161 | expenses. Only if the accountant's estimate is less than the  | 
| 162 | lowest-priced responsive bid or proposal and the governing board  | 
| 163 | of the local government, after public notice, conducts a public  | 
| 164 | meeting under s. 286.011 and finds by a majority vote of the  | 
| 165 | governing board that it is in the public's best interest to  | 
| 166 | perform the project using its own services, employees, and  | 
| 167 | equipment may the local government perform the work using its  | 
| 168 | own services, employees, and equipment. The public notice must  | 
| 169 | be published at least 14 days prior to the date of the public  | 
| 170 | meeting at which the governing board takes final action to apply  | 
| 171 | this subparagraph. The notice must identify the project, the  | 
| 172 | estimated cost of the project, and specify that the purpose for  | 
| 173 | the public meeting is to consider whether it is in the public's  | 
| 174 | best interest to perform the project using the local  | 
| 175 | government's own services, employees, and equipment. In deciding  | 
| 176 | whether it is in the public's best interest for local government  | 
| 177 | to perform a project using its own services, employees, and  | 
| 178 | equipment, the governing board may consider the cost of the  | 
| 179 | project, whether the project requires an increase in the number  | 
| 180 | of government employees or, an increase in capital expenditures  | 
| 181 | for public facilities, equipment, or other capital assets, the  | 
| 182 | impact on local economic development, the impact on small and  | 
| 183 | minority business owners, the impact on state and local tax  | 
| 184 | revenues, whether the private sector contractors provide health  | 
| 185 | insurance and other benefits equivalent to those provided by the  | 
| 186 | local government, and any other factor relevant to what is in  | 
| 187 | the public's best interest. | 
| 188 |      9.10.  When the governing board of the local government  | 
| 189 | determines upon consideration of specific substantive criteria  | 
| 190 | and administrative procedures that it is in the best interest of  | 
| 191 | the local government to award the project to an appropriately  | 
| 192 | licensed private sector contractor according to procedures  | 
| 193 | established by and expressly set forth in a charter, ordinance,  | 
| 194 | or resolution of the local government adopted prior to July 1,  | 
| 195 | 1994. The criteria and procedures must be set out in the  | 
| 196 | charter, ordinance, or resolution and must be applied uniformly  | 
| 197 | by the local government to avoid award of any project in an  | 
| 198 | arbitrary or capricious manner. This exception shall apply when  | 
| 199 | all of the following occur: | 
| 200 |      a.  When the governing board of the local government, after  | 
| 201 | public notice, conducts a public meeting under s. 286.011 and  | 
| 202 | finds by a two-thirds vote of the governing board that it is in  | 
| 203 | the public's best interest to award the project according to the  | 
| 204 | criteria and procedures established by charter, ordinance, or  | 
| 205 | resolution. The public notice must be published at least 14 days  | 
| 206 | prior to the date of the public meeting at which the governing  | 
| 207 | board takes final action to apply this subparagraph. The notice  | 
| 208 | must identify the project, the estimated cost of the project,  | 
| 209 | and specify that the purpose for the public meeting is to  | 
| 210 | consider whether it is in the public's best interest to award  | 
| 211 | the project using the criteria and procedures permitted by the  | 
| 212 | preexisting ordinance. | 
| 213 |      b.  In the event the project is to be awarded by any method  | 
| 214 | other than a competitive selection process, the governing board  | 
| 215 | must find evidence that: | 
| 216 |      (I)  There is one appropriately licensed contractor who is  | 
| 217 | uniquely qualified to undertake the project because that  | 
| 218 | contractor is currently under contract to perform work that is  | 
| 219 | affiliated with the project; or | 
| 220 |      (II)  The time to competitively award the project will  | 
| 221 | jeopardize the funding for the project, or will materially  | 
| 222 | increase the cost of the project or will create an undue  | 
| 223 | hardship on the public health, safety, or welfare. | 
| 224 |      c.  In the event the project is to be awarded by any method  | 
| 225 | other than a competitive selection process, the published notice  | 
| 226 | must clearly specify the ordinance or resolution by which the  | 
| 227 | private sector contractor will be selected and the criteria to  | 
| 228 | be considered. | 
| 229 |      d.  In the event the project is to be awarded by a method  | 
| 230 | other than a competitive selection process, the architect or  | 
| 231 | engineer of record has provided a written recommendation that  | 
| 232 | the project be awarded to the private sector contractor without  | 
| 233 | competitive selection; and the consideration by, and the  | 
| 234 | justification of, the government body are documented, in  | 
| 235 | writing, in the project file and are presented to the governing  | 
| 236 | board prior to the approval required in this paragraph. | 
| 237 |      10.11.  To projects subject to chapter 336. | 
| 238 |      (d)1.  If the project is to be awarded based on price, the  | 
| 239 | contract must be awarded to the lowest qualified and responsive  | 
| 240 | bidder in accordance with the applicable county or municipal  | 
| 241 | ordinance or district resolution and in accordance with the  | 
| 242 | applicable contract documents. The county, municipality, or  | 
| 243 | special district may reserve the right to reject all bids and to  | 
| 244 | rebid the project or elect not to proceed with the project. This  | 
| 245 | subsection is not intended to restrict the rights of any local  | 
| 246 | government to reject the low bid of a nonqualified or  | 
| 247 | nonresponsive bidder and to award the contract to any other  | 
| 248 | qualified and responsive bidder in accordance with the standards  | 
| 249 | and procedures of any applicable county or municipal ordinance  | 
| 250 | or any resolution of a special district. | 
| 251 |      2.  If the project uses a request for proposal or a request  | 
| 252 | for qualifications, the request must be publicly advertised and  | 
| 253 | the contract must be awarded in accordance with the applicable  | 
| 254 | local ordinances. | 
| 255 |      3.  If the project is subject to competitive negotiations,  | 
| 256 | the contract must be awarded in accordance with s. 287.055. | 
| 257 |      (e)  If a construction project greater than $200,000, or  | 
| 258 | $50,000 for electrical work, is started after October 1, 1999,  | 
| 259 | and is to be performed by a local government using its own  | 
| 260 | employees in a county or municipality that issues registered  | 
| 261 | contractor licenses and the project would require a licensed  | 
| 262 | contractor under chapter 489 if performed by a private sector  | 
| 263 | contractor, the local government must use a person appropriately  | 
| 264 | registered or certified under chapter 489 to supervise the work. | 
| 265 |      (f)  If a construction project greater than $200,000, or  | 
| 266 | $50,000 for electrical work, is started after October 1, 1999,  | 
| 267 | and is to be performed by a local government using its own  | 
| 268 | employees in a county that does not issue registered contractor  | 
| 269 | licenses and the project would require a licensed contractor  | 
| 270 | under chapter 489 if performed by a private sector contractor,  | 
| 271 | the local government must use a person appropriately registered  | 
| 272 | or certified under chapter 489 or a person appropriately  | 
| 273 | licensed under chapter 471 to supervise the work. | 
| 274 |      (g)  Projects performed by a local government using its own  | 
| 275 | services and employees must be inspected in the same manner as  | 
| 276 | inspections required for work performed by private sector  | 
| 277 | contractors. | 
| 278 |      (h)  A construction project provided for in this subsection  | 
| 279 | may not be divided into more than one project for the purpose of  | 
| 280 | evading this subsection. | 
| 281 |      (i)  This subsection does not preempt the requirements of  | 
| 282 | any small-business or disadvantaged-business enterprise program  | 
| 283 | or any local-preference ordinance. | 
| 284 |      (j)  Notwithstanding any other law to the contrary, any  | 
| 285 | provision contained in any public construction contract for a  | 
| 286 | county, municipality, special district as defined in chapter  | 
| 287 | 189, or other political subdivision of the state which purports  | 
| 288 | to limit, waive, release, or extinguish the rights of a  | 
| 289 | contractor to recover costs or damages for delay in performing  | 
| 290 | such contract, either on its behalf or on behalf of its  | 
| 291 | subcontractors, if and to the extent the delay is caused by acts  | 
| 292 | or omissions of the county, municipality, special district, or  | 
| 293 | political subdivision, its agents or employees, or other  | 
| 294 | entities with which it is in privity and due to causes within  | 
| 295 | its control, shall be void and unenforceable as against public  | 
| 296 | policy. The decisions of a county, municipality, special  | 
| 297 | district, or other political subdivision concerning additional  | 
| 298 | compensation or time to which a contractor is entitled in  | 
| 299 | connection with any public construction contract shall be  | 
| 300 | subject to de novo review in a state court of appropriate  | 
| 301 | jurisdiction. | 
| 302 |      Section 2.  Section 336.41, Florida Statutes, is amended to  | 
| 303 | read: | 
| 304 |      336.41  Counties and municipalities; employing labor and  | 
| 305 | providing road equipment; accounting; when competitive bidding  | 
| 306 | required.-- | 
| 307 |      (1)  The governing body of a county or municipality  | 
| 308 | commissioners may employ labor and provide equipment as may be  | 
| 309 | necessary, except as provided in subsection (3), for  | 
| 310 | constructing and opening of new roads or bridges and repair and  | 
| 311 | maintenance of any existing roads and bridges. | 
| 312 |      (2)  It shall be the duty of all persons to whom the  | 
| 313 | governing body of a county or municipality delivers  | 
| 314 | commissioners deliver equipment and supplies for road and bridge  | 
| 315 | purposes to make a strict accounting of the same to the  | 
| 316 | governing body commissioners. | 
| 317 |      (3)(a)  All construction and reconstruction of roads and  | 
| 318 | bridges, including resurfacing, full scale mineral seal coating,  | 
| 319 | and major bridge and bridge system repairs, to be performed  | 
| 320 | utilizing the proceeds of the 80-percent portion of the surplus  | 
| 321 | of the constitutional fuel gas tax under s. 206.41(1)(a), the  | 
| 322 | county fuel tax under s. 206.41(1)(b) for county projects or the  | 
| 323 | municipal fuel tax under s. 206.41(1)(c) for municipal projects,  | 
| 324 | the ninth-cent fuel tax under s. 206.41(1)(d) when imposed by  | 
| 325 | the county, or the local option fuel tax under s. 206.41(1)(e)  | 
| 326 | when imposed by the county shall be let to contract to the  | 
| 327 | lowest responsible bidder by competitive bid. | 
| 328 |      (b)  Notwithstanding paragraph (a), the county or  | 
| 329 | municipality may use its own forces, except for: | 
| 330 |      1.(a)  Construction and maintenance in emergency  | 
| 331 | situations., and | 
| 332 |      2.(b)  In addition to emergency work, construction and  | 
| 333 | reconstruction, including resurfacing, mineral seal coating, and  | 
| 334 | bridge repairs, having a total cumulative annual value not to  | 
| 335 | exceed 5 percent of its proceeds listed in paragraph (a) 80- | 
| 336 | percent portion of the constitutional gas tax or $400,000,  | 
| 337 | whichever is greater., and | 
| 338 |      3.(c)  Construction of sidewalks, curbing, accessibility  | 
| 339 | ramps, or appurtenances incidental to roads and bridges if each  | 
| 340 | project is estimated in accordance with generally accepted cost- | 
| 341 | accounting principles to have total construction project costs  | 
| 342 | of less than $400,000 or as adjusted by the percentage change in  | 
| 343 | the Construction Cost Index from January 1, 2008, | 
| 344 | 
  | 
| 345 | for which the county may utilize its own forces. | 
| 346 |      (c)  However, if, after proper advertising, no bids are  | 
| 347 | received by a county or municipality for a specific project, the  | 
| 348 | county or municipality may use its own forces to construct the  | 
| 349 | project, notwithstanding the limitation of this subsection. | 
| 350 |      (d)  Nothing in this section shall prevent the county or  | 
| 351 | municipality from performing routine maintenance as authorized  | 
| 352 | by law. | 
| 353 |      (4)(a)  For contracts in excess of $250,000, any county or  | 
| 354 | municipality may require that persons interested in performing  | 
| 355 | work under the contract first be certified or qualified to do  | 
| 356 | the work. Any contractor prequalified and considered eligible to  | 
| 357 | bid by the department to perform the type of work described  | 
| 358 | under the contract shall be presumed to be qualified to perform  | 
| 359 | the work so described. Any contractor may be considered  | 
| 360 | ineligible to bid by the county or municipality if the  | 
| 361 | contractor is behind an approved progress schedule by 10 percent  | 
| 362 | or more on another project for that county or municipality at  | 
| 363 | the time of the advertisement of the work. The county or  | 
| 364 | municipality may provide an appeal process to overcome such  | 
| 365 | consideration with de novo review based on the record below to  | 
| 366 | the circuit court. | 
| 367 |      (b)  The county or municipality, as appropriate, shall  | 
| 368 | publish prequalification criteria and procedures prior to  | 
| 369 | advertisement or notice of solicitation. Such publications shall  | 
| 370 | include notice of a public hearing for comment on such criteria  | 
| 371 | and procedures prior to adoption. The procedures shall provide  | 
| 372 | for an appeal process within the county or municipality for  | 
| 373 | objections to the prequalification process with de novo review  | 
| 374 | based on the record below to the circuit court. | 
| 375 |      (c)  The county or municipality, as appropriate, shall also  | 
| 376 | publish for comment, prior to adoption, the selection criteria  | 
| 377 | and procedures to be used by the county or municipality if such  | 
| 378 | procedures would allow selection of other than the lowest  | 
| 379 | responsible bidder. The selection criteria shall include an  | 
| 380 | appeal process within the county or municipality with de novo  | 
| 381 | review based on the record below to the circuit court. | 
| 382 |      Section 3.  This act shall take effect July 1, 2008. |