Florida Senate - 2009                             CS for SB 2666
       
       
       
       By the Committee on General Government Appropriations; and
       Senators Haridopolos and Baker
       
       
       
       601-05241-09                                          20092666c1
    1                        A bill to be entitled                      
    2         An act relating to state construction management
    3         contracting; creating s. 255.32, F.S.; defining terms;
    4         authorizing the Department of Management Services to
    5         select and contract with construction management
    6         entities to assist in the management of state
    7         construction projects; providing criteria; authorizing
    8         the department to enter into continuing contracts
    9         under certain circumstances; providing that a
   10         construction management entity may be required to
   11         offer a guaranteed maximum price and a guaranteed
   12         completion date under specified circumstances and
   13         secure a surety bond; requiring the department to
   14         adopt rules; amending s. 255.103, F.S.; replacing the
   15         term “local government” with “governmental entity”;
   16         defining the term “governmental entity”; authorizing
   17         governmental entities to enter into continuing
   18         contracts under certain circumstances; defining the
   19         term “continuing contract”; amending s. 287.055, F.S.;
   20         clarifying the definition of “continuing contract”;
   21         amending s. 287.057, F.S.; providing that for the
   22         purpose of exempting certain specified contractual
   23         services and commodities from competitive-solicitation
   24         requirements, the listed exemption for artistic
   25         services does not include advertising; defining the
   26         term “advertising”; amending s. 1013.45, F.S.;
   27         revising provisions relating to contracting and
   28         construction for educational facilities; providing an
   29         effective date.
   30  
   31  Be It Enacted by the Legislature of the State of Florida:
   32  
   33         Section 1. Section 255.32, Florida Statutes, is created to
   34  read:
   35         255.32State construction management contracting.—
   36         (1)As used in this section, the term:
   37         (a)“Construction management entity” means a licensed
   38  general contractor or a licensed building contractor, as defined
   39  in s. 489.105, who coordinates and supervises a construction
   40  project from the conceptual development stage through final
   41  construction, including the scheduling, selection, contracting
   42  with, and directing of specialty trade contractors, and the
   43  value engineering of a project.
   44         (b)“Construction project” means any planned or unforeseen
   45  fixed capital outlay activity authorized under s. 255.31. A
   46  construction project may include:
   47         1.A grouping of minor construction, rehabilitation, or
   48  renovation activities.
   49         2.A grouping of substantially similar construction,
   50  rehabilitation, or renovation activities.
   51         (c)“Continuing contract” means a contract with a
   52  construction management entity for work during a defined time
   53  period on construction projects described by type, which may or
   54  may not be identified at the time of entering into the contract.
   55         (d)”Department” means the Department of Management
   56  Services.
   57         (2)To assist in the management of state construction
   58  projects, the department may select and contract with
   59  construction management entities that:
   60         (a)Are competitively selected by the department pursuant
   61  to s. 287.055;
   62         (b)Agree to follow the advertising and competitive bidding
   63  procedures that the department is required to follow if the
   64  department is managing the construction project directly; and
   65         (c)Are under a contract that is separate from the design
   66  criteria professional contract, if any, assigned to the
   67  construction project.
   68         (3)The department’s authority under subsection (2)
   69  includes entering into a continuing contract for construction
   70  projects for which the total estimated construction cost for
   71  each project under the contract does not exceed $1 million.
   72         (4)The department may require the construction management
   73  entity, after having been selected for a construction project
   74  and after competitive negotiations, to offer a guaranteed
   75  maximum price and a guaranteed completion date. If so required,
   76  the construction management entity must secure an appropriate
   77  surety bond pursuant to s. 255.05 and must hold construction
   78  subcontracts. If a project solicited by the department pursuant
   79  to s. 287.055 includes a grouping of construction,
   80  rehabilitation, or renovation activities or substantially
   81  similar construction, rehabilitation, or renovation activities
   82  costing up to $1 million, the department may require the
   83  construction management entity to provide a separate guaranteed
   84  maximum price and a separate guaranteed completion date for each
   85  grouping included in the project.
   86         (5)The department shall adopt rules for state agencies
   87  using the services of construction management entities under
   88  contract with the department.
   89         Section 2. Section 255.103, Florida Statues, is amended to
   90  read:
   91         255.103 Construction management or program management
   92  entities.—
   93         (1) As used in this section, the term “governmental entity”
   94  “local government” means a county, municipality, school
   95  district, special district as defined in chapter 189, or other
   96  political subdivision of the state.
   97         (2) A governmental entity local government may select a
   98  construction management entity, pursuant to the process provided
   99  by s. 287.055, which is to be responsible for construction
  100  project scheduling and coordination in both preconstruction and
  101  construction phases and generally responsible for the
  102  successful, timely, and economical completion of the
  103  construction project. The construction management entity must
  104  consist of or contract with licensed or registered professionals
  105  for the specific fields or areas of construction to be
  106  performed, as required by law. The construction management
  107  entity may retain necessary design professionals selected under
  108  the process provided in s. 287.055. At the option of the
  109  governmental entity local government, the construction
  110  management entity, after having been selected and after
  111  competitive negotiations, may be required to offer a guaranteed
  112  maximum price and a guaranteed completion date or a lump-sum
  113  price and a guaranteed completion date, in which case, the
  114  construction management entity must secure an appropriate surety
  115  bond pursuant to s. 255.05 and must hold construction
  116  subcontracts. If a project, as defined in s. 287.055(2)(f),
  117  solicited by a governmental entity local government under the
  118  process provided in s. 287.055 includes a grouping of
  119  substantially similar construction, rehabilitation, or
  120  renovation activities as permitted under s. 287.055(2)(f), the
  121  governmental entity local government, after competitive
  122  negotiations, may require the construction management entity to
  123  provide for a separate guaranteed maximum price or a separate
  124  lump-sum price and a separate guaranteed completion date for
  125  each grouping of substantially similar construction,
  126  rehabilitation, or renovation activities included within the
  127  project.
  128         (3) A governmental entity local government may select a
  129  program management entity, pursuant to the process provided by
  130  s. 287.055, which is to be responsible for schedule control,
  131  cost control, and coordination in providing or procuring
  132  planning, design, and construction services. The program
  133  management entity must consist of or contract with licensed or
  134  registered professionals for the specific areas of design or
  135  construction to be performed as required by law. The program
  136  management entity may retain necessary design professionals
  137  selected under the process provided in s. 287.055. At the option
  138  of the governmental entity local government, the program
  139  management entity, after having been selected and after
  140  competitive negotiations, may be required to offer a guaranteed
  141  maximum price and a guaranteed completion date or a lump-sum
  142  price and guaranteed completion date, in which case the program
  143  management entity must secure an appropriate surety bond
  144  pursuant to s. 255.05 and must hold design and construction
  145  subcontracts. If a project, as defined in s. 287.055(2)(f),
  146  solicited by a governmental entity local government under the
  147  process provided in s. 287.055 includes a grouping of
  148  substantially similar construction, rehabilitation, or
  149  renovation activities as permitted under s. 287.055(2)(f), the
  150  governmental entity local government, after competitive
  151  negotiations, may require the program management entity to
  152  provide for a separate guaranteed maximum price or a lump-sum
  153  price and a separate guaranteed completion date for each
  154  grouping of substantially similar construction, rehabilitation,
  155  or renovation activities included within the project.
  156         (4)A governmental entity’s authority under subsections (2)
  157  and (3) includes entering into a continuing contract for
  158  construction projects, pursuant to the process provided in s.
  159  287.055, for which the total estimated construction cost for
  160  each project under the contract does not exceed $1 million. For
  161  purposes of this subsection, the term “continuing contract”
  162  means a contract with a construction management or program
  163  management entity for work during a defined period on
  164  construction projects described by type which may or may not be
  165  identified at the time of entering into the contract.
  166         (5)(4) This section does not prohibit a local government
  167  from procuring construction management services, including the
  168  services of a program management entity, pursuant to the
  169  requirements of s. 255.20.
  170         Section 3. Paragraph (g) of subsection (2) of section
  171  287.055, Florida Statutes, is amended to read:
  172         287.055 Acquisition of professional architectural,
  173  engineering, landscape architectural, or surveying and mapping
  174  services; definitions; procedures; contingent fees prohibited;
  175  penalties.—
  176         (2) DEFINITIONS.—For purposes of this section:
  177         (g) A “continuing contract” is a contract for professional
  178  services entered into in accordance with all the procedures of
  179  this act between an agency and a firm whereby the firm provides
  180  professional services to the agency for projects in which
  181  construction costs for each project under the contract do not
  182  exceed $2 $1 million, for study activity if when the fee for
  183  such professional services for each study under the contract do
  184  service does not exceed $200,000 $50,000, or for work of a
  185  specified nature as outlined in the contract required by the
  186  agency, with no time limitation or limit on the aggregate values
  187  under the contract, except that the contract must provide a
  188  termination clause. Firms providing professional services under
  189  continuing contracts do not have shall not be required to bid
  190  against one another.
  191         Section 4. Paragraph (f) of subsection (5) of section
  192  287.057, Florida Statutes, is amended to read:
  193         287.057 Procurement of commodities or contractual
  194  services.—
  195         (5) When the purchase price of commodities or contractual
  196  services exceeds the threshold amount provided in s. 287.017 for
  197  CATEGORY TWO, no purchase of commodities or contractual services
  198  may be made without receiving competitive sealed bids,
  199  competitive sealed proposals, or competitive sealed replies
  200  unless:
  201         (f) The following contractual services and commodities are
  202  not subject to the competitive-solicitation requirements of this
  203  section:
  204         1. Artistic services. For the purposes of this subsection,
  205  the term “artistic services” does not include advertising. As
  206  used in this subparagraph, the term “advertising” means the
  207  making of a representation in any form in connection with a
  208  trade, business, craft or profession in order to promote the
  209  supply of commodities or services by the person promoting the
  210  commodities or contractual services.
  211         2. Academic program reviews.
  212         3. Lectures by individuals.
  213         4. Auditing services.
  214         5. Legal services, including attorney, paralegal, expert
  215  witness, appraisal, or mediator services.
  216         6. Health services involving examination, diagnosis,
  217  treatment, prevention, medical consultation, or administration.
  218         7. Services provided to persons with mental or physical
  219  disabilities by not-for-profit corporations which have obtained
  220  exemptions under the provisions of s. 501(c)(3) of the United
  221  States Internal Revenue Code or when such services are governed
  222  by the provisions of Office of Management and Budget Circular A
  223  122. However, in acquiring such services, the agency shall
  224  consider the ability of the vendor, past performance,
  225  willingness to meet time requirements, and price.
  226         8. Medicaid services delivered to an eligible Medicaid
  227  recipient by a health care provider who has not previously
  228  applied for and received a Medicaid provider number from the
  229  Agency for Health Care Administration. However, this exception
  230  shall be valid for a period not to exceed 90 days after the date
  231  of delivery to the Medicaid recipient and shall not be renewed
  232  by the agency.
  233         9. Family placement services.
  234         10. Prevention services related to mental health, including
  235  drug abuse prevention programs, child abuse prevention programs,
  236  and shelters for runaways, operated by not-for-profit
  237  corporations. However, in acquiring such services, the agency
  238  shall consider the ability of the vendor, past performance,
  239  willingness to meet time requirements, and price.
  240         11. Training and education services provided to injured
  241  employees pursuant to s. 440.491(6).
  242         12. Contracts entered into pursuant to s. 337.11.
  243         13. Services or commodities provided by governmental
  244  agencies.
  245         Section 5. Subsection (1) of section 1013.45, Florida
  246  Statutes, is amended to read:
  247         1013.45 Educational facilities contracting and construction
  248  techniques.—
  249         (1) Boards may employ procedures to contract for
  250  construction of new facilities, or for major additions,
  251  remodeling, renovation, maintenance, or repairs to existing
  252  facilities, that will include, but not be limited to:
  253         (a) Competitive bids.
  254         (b) Procuring professional services or design-build
  255  contracts Design-build pursuant to s. 287.055, including
  256  continuing contracts for professional services.
  257         (c) Selecting a construction management entity, pursuant to
  258  s. 255.103 the process provided by s. 287.055, that would be
  259  responsible for all scheduling and coordination in both design
  260  and construction phases and is generally responsible for the
  261  successful, timely, and economical completion of the
  262  construction project. The construction management entity must
  263  consist of or contract with licensed or registered professionals
  264  for the specific fields or areas of construction to be
  265  performed, as required by law. At the option of the board, the
  266  construction management entity, after having been selected, may
  267  be required to offer a guaranteed maximum price or a guaranteed
  268  completion date; in which case, the construction management
  269  entity must secure an appropriate surety bond pursuant to s.
  270  255.05 and must hold construction subcontracts. The criteria for
  271  selecting a construction management entity shall not unfairly
  272  penalize an entity that has relevant experience in the delivery
  273  of construction projects of similar size and complexity by
  274  methods of delivery other than construction management.
  275         (d) Selecting a program management entity, pursuant to s.
  276  255.103 the process provided by s. 287.055, that would act as
  277  the agent of the board and would be responsible for schedule
  278  control, cost control, and coordination in providing or
  279  procuring planning, design, and construction services. The
  280  program management entity must consist of or contract with
  281  licensed or registered professionals for the specific areas of
  282  design or construction to be performed as required by law. The
  283  program management entity may retain necessary design
  284  professionals selected under the process provided in s. 287.055.
  285  At the option of the board, the program management entity, after
  286  having been selected, may be required to offer a guaranteed
  287  maximum price or a guaranteed completion date, in which case the
  288  program management entity must secure an appropriate surety bond
  289  pursuant to s. 255.05 and must hold design and construction
  290  subcontracts. The criteria for selecting a program management
  291  entity shall not unfairly penalize an entity that has relevant
  292  experience in the delivery of construction programs of similar
  293  size and complexity by methods of delivery other than program
  294  management.
  295         Section 6. This act shall take effect July 1, 2009.