HB 611

1	A bill to be entitled
2	An act relating to public construction projects; amending
3	s. 255.20, F.S.; revising exceptions to the requirement
4	that certain public projects be competitively awarded;
5	defining the term "maintenance"; prohibiting an exception
6	if the local government contributed to a delay in funding
7	or awarding a project; requiring a local government to
8	support a decision to perform a project with its own
9	employees and to make a factual finding that the project
10	cost will be the same or less than the lowest bid;
11	providing additional exceptions for projects related to
12	public-use airports, certain ports, and certain public
13	transit systems; authorizing a project to be awarded to a
14	contractor that maintains a local presence under certain
15	circumstances; providing an effective date.
16
17	Be It Enacted by the Legislature of the State of Florida:
18
19	Section 1.  Section 255.20, Florida Statutes, is amended to
20	read:
21	255.20  Local bids and contracts for public construction
22	works; specification of state-produced lumber.--
23	(1)  A county, municipality, special district as defined in
24	chapter 189, or other political subdivision of the state seeking
25	to construct, or improve, or repair a public building,
26	structure, or other public construction works must competitively
27	award to an appropriately licensed contractor each project that
28	is estimated in accordance with generally accepted cost-
29	accounting principles to cost have total construction project
30	costs of more than $200,000. For electrical work, the local
31	government must competitively award to an appropriately licensed
32	contractor each project that is estimated in accordance with
33	generally accepted cost-accounting principles to have a cost of
34	more than $50,000. As used in this section, the term
35	"competitively award" means to award contracts based on the
36	submission of sealed bids, proposals submitted in response to a
37	request for proposal, proposals submitted in response to a
38	request for qualifications, or proposals submitted for
39	competitive negotiation. This subsection expressly allows
40	contracts for construction management services, design/build
41	contracts, continuation contracts based on unit prices, and any
42	other contract arrangement with a private sector contractor
43	permitted by any applicable municipal or county ordinance, by
44	district resolution, or by state law. For purposes of this
45	section, cost includes construction costs include the cost of
46	all labor, except inmate labor, and include the cost of
47	equipment and materials to be used in the construction of the
48	project. Subject to the provisions of subsection (3), the
49	county, municipality, special district, or other political
50	subdivision may establish, by municipal or county ordinance or
51	special district resolution, procedures for conducting the
52	bidding process.
53	(a)  Notwithstanding any other law to the contrary, a
54	governmental entity a county, municipality, special district as
55	defined in chapter 189, or other political subdivision of the
56	state seeking to construct or improve bridges, roads, streets,
57	highways, or railroads, and services incidental thereto, at a
58	cost costs in excess of $250,000 may require that persons
59	interested in performing work under contract first be certified
60	or qualified to perform such work. A Any contractor may be
61	considered ineligible to bid by the governmental entity if the
62	contractor is behind by 10 percent or more on completing an
63	approved progress schedule for the governmental entity by 10
64	percent or more at the time of advertising advertisement of the
65	work. A prequalified Any contractor prequalified and considered
66	eligible by the Department of Transportation to bid to perform
67	the type of work described under the contract is shall be
68	presumed to be qualified to perform the work described. The
69	governmental entity may provide an appeal process to overcome
70	that presumption with de novo review based on the record below
71	to the circuit court.
72	(b)  For With respect to contractors who are not
73	prequalified by with the Department of Transportation, the
74	governmental entity shall publish prequalification criteria and
75	procedures prior to advertisement or notice of solicitation.
76	Such publications must shall include notice of a public hearing
77	for comment on such criteria and procedures prior to adoption.
78	The procedures must shall provide for an appeal process within
79	the authority for making objections to the prequalification
80	process with de novo review based on the record below to the
81	circuit court within 30 days.
82	(c)  The provisions of this subsection do not apply:
83	1.  If When the project is undertaken to replace,
84	reconstruct, or repair an existing public building, structure,
85	or other public construction works facility damaged or destroyed
86	by a sudden unexpected turn of events, such as an act of God,
87	riot, fire, flood, accident, or other urgent circumstances, and
88	such damage or destruction creates:
89	a.  An immediate danger to the public health or safety;
90	b.  Other loss to public or private property which requires
91	emergency government action; or
92	c.  An interruption of an essential governmental service.
93	2.  If When, after notice by publication in accordance with
94	the applicable ordinance or resolution, the governmental entity
95	does not receive any responsive bids or proposals responses.
96	3.  To construction, remodeling, repair, or improvement to
97	a public electric or gas utility system if when such work on the
98	public utility system is performed by personnel of the system.
99	4.  To construction, remodeling, repair, or improvement by
100	a utility commission whose major contracts are to construct and
101	operate a public electric utility system.
102	5.  If When the project consists exclusively of is
103	undertaken as repair or maintenance to a public building,
104	structure, or other public construction works of an existing
105	public facility. For the purposes of this section, the term
106	"maintenance" means those minor repairs and associated tasks
107	necessary to prevent the failure or decline of such facility
108	without having to undertake any new construction, additions, or
109	extensions.
110	6.  If When the project is undertaken exclusively as part
111	of a public educational program.
112	7.  If When the funding source of the project will be
113	diminished or lost because the time required to competitively
114	award the project after the funds become available exceeds the
115	time within which the funding source must be spent, and the
116	governmental entity undertaking the project has not materially
117	contributed to a delay in funding or in competitively awarding
118	the project.
119	8.  If When the local government has competitively awarded
120	a project to a private sector contractor and the contractor has
121	abandoned the project before completion or the local government
122	has terminated the contract.
123	9.  If the local government, after receiving competitive
124	bids or proposals, decides to perform the project using its own
125	services, employees, and equipment and complies with the
126	provisions of this subparagraph. If the local government
127	receives bids or proposals that are responsive but are all at
128	least 10 percent greater than the local government's estimated
129	cost of the project, When the governing board of the local
130	government, after public notice, shall conduct conducts a public
131	meeting under s. 286.011 and may decide finds by a majority vote
132	of the governing board that it is in the public's best interest
133	to perform the project using its own services, employees, and
134	equipment. The public notice must be published at least 14 days
135	before prior to the date of the public meeting at which the
136	governing board takes final action to apply this subparagraph.
137	The notice must identify the project and, the estimated cost of
138	the project, and specify that the purpose for the public meeting
139	is to consider whether it is in the public's best interest to
140	perform the project using the local government's own services,
141	employees, and equipment. The local government's decision In
142	deciding whether it is in the public's best interest for local
143	government to perform a project using its own services,
144	employees, and equipment must be supported by a factual finding,
145	subject to challenge under subsection (5), that the local
146	government can perform the project at a cost equal to or less
147	than the lowest cost-responsive bid or proposal received, using
148	generally accepted cost-accounting principles that fully account
149	for all local government costs associated with performing the
150	project, including employee compensation and benefits,
151	equipment, and materials, the governing board may consider the
152	cost of the project, whether the project requires an increase in
153	the number of government employees, an increase in capital
154	expenditures for public facilities, equipment or other capital
155	assets, the impact on local economic development, the impact on
156	small and minority business owners, the impact on state and
157	local tax revenues, whether the private sector contractors
158	provide health insurance and other benefits equivalent to those
159	provided by the local government, and any other factor relevant
160	to what is in the public's best interest.
161	10.  If When the governing board of the local government
162	determines upon consideration of specific substantive criteria
163	and administrative procedures that it is in the best interest of
164	the local government to award the project to an appropriately
165	licensed private sector contractor pursuant according to
166	administrative procedures established by and expressly set forth
167	in a charter, ordinance, or resolution of the local government
168	adopted before prior to July 1, 1994. The criteria and
169	procedures must be set out in the charter, ordinance, or
170	resolution and must be applied uniformly by the local government
171	to avoid awarding a award of any project in an arbitrary or
172	capricious manner. This exception applies only if shall apply
173	when all of the following occur:
174	a.  When The governing board of the local government, after
175	public notice, conducts a public meeting under s. 286.011 and
176	finds by a two-thirds vote of the governing board that it is in
177	the public's best interest to award the project according to the
178	criteria and procedures established by charter, ordinance, or
179	resolution. The public notice must be published at least 14 days
180	before prior to the date of the public meeting at which the
181	governing board takes final action to apply this subparagraph.
182	The notice must identify the project, the estimated cost of the
183	project, and specify that the purpose for the public meeting is
184	to consider whether it is in the public's best interest to award
185	the project using the criteria and procedures permitted by the
186	preexisting charter, ordinance, or resolution.
187	b.  In the event The project is to be awarded by any method
188	other than a competitive selection process, and the governing
189	board finds must find evidence that:
190	(I)  There is one appropriately licensed contractor who is
191	uniquely qualified to undertake the project because that
192	contractor is currently under contract to perform work that is
193	affiliated with the project; or
194	(II)  The time to competitively award the project will
195	jeopardize the funding for the project, or will materially
196	increase the cost of the project, or will create an undue
197	hardship on the public health, safety, or welfare.
198	c.  In the event The project is to be awarded by any method
199	other than a competitive selection process, and the published
200	notice must clearly specifies specify the ordinance or
201	resolution by which the private sector contractor will be
202	selected and the criteria to be considered.
203	d.  In the event The project is to be awarded by a method
204	other than a competitive selection process, and the architect or
205	engineer of record has provided a written recommendation that
206	the project be awarded to the private sector contractor without
207	competitive selection,; and the consideration by, and the
208	justification of, the government body are documented, in
209	writing, in the project file and are presented to the governing
210	board prior to the approval required in this paragraph.
211	11.  To projects subject to chapter 336.
212	(d)1.  If the project:
213	1.  Is to be awarded based on price, the contract must be
214	awarded to the lowest qualified and responsive bidder in
215	accordance with the applicable county or municipal ordinance or
216	district resolution and in accordance with the applicable
217	contract documents. The county, municipality, or special
218	district may reserve the right to reject all bids and to rebid
219	the project, or elect not to proceed with the project. This
220	subsection is not intended to restrict the rights of any local
221	government to reject the low bid of a nonqualified or
222	nonresponsive bidder and to award the contract to any other
223	qualified and responsive bidder in accordance with the standards
224	and procedures of any applicable county or municipal ordinance
225	or any resolution of a special district.
226	2.  If the project Uses a request for proposal or a request
227	for qualifications, the request must be publicly advertised and
228	the contract must be awarded in accordance with the applicable
229	local ordinances.
230	3.  If the project Is subject to competitive negotiations,
231	the contract must be awarded in accordance with s. 287.055.
232	(e)  If a construction project greater than $200,000, or
233	$50,000 for electrical work, is started after October 1, 1999,
234	and is to be performed by a local government using its own
235	employees in a county or municipality that issues registered
236	contractor licenses, and requires a the project would require a
237	licensed contractor licensed under chapter 489 if performed by a
238	private sector contractor, the local government must use a
239	person appropriately registered or certified under chapter 489
240	to supervise the work.
241	(f)  If a construction project greater than $200,000, or
242	$50,000 for electrical work, is started after October 1, 1999,
243	and is to be performed by a local government using its own
244	employees in a county that does not issue registered contractor
245	licenses, and requires a the project would require a licensed
246	contractor licensed under chapter 489 if performed by a private
247	sector contractor, the local government must use a person
248	appropriately registered or certified under chapter 489 or a
249	person appropriately licensed under chapter 471 to supervise the
250	work.
251	(g)  Projects performed by a local government using its own
252	services and employees must be inspected in the same manner as
253	inspections required for work performed by private sector
254	contractors.
255	(h)  A construction project provided for in this subsection
256	may not be divided into more than one project for the purpose of
257	evading this subsection.
258	(i)  This subsection does not preempt the requirements of
259	any small-business or disadvantaged-business enterprise program
260	or any local-preference ordinance.
261	(j)  A local government that owns or operates a public-use
262	airport as defined in s. 332.004 is exempt from this section
263	when performing repairs or maintenance on the airport's
264	buildings, structures, or public construction works using the
265	local government's own services, employees, and equipment.
266	(k)  A local government that owns or operates a port
267	identified in s. 403.021(9)(b) is exempt from this section when
268	performing repairs or maintenance on the port's buildings,
269	structures, or public construction works using the local
270	government's own services, employees, and equipment.
271	(l)  A local government that owns or operates a public
272	transit system as defined in s. 343.52, a public transportation
273	system as defined in s. 343.62, or a mass transit system
274	described in s. 349.04(1)(b), is exempt from this section when
275	performing repairs or maintenance on the buildings, structures,
276	or public construction works of the public transit system,
277	public transportation system, or mass transit system using the
278	local government's own services, employees, and equipment.
279	(2)  The threshold amount of $200,000 for construction or
280	$50,000 for electrical work must be adjusted by the percentage
281	change in the Consumer Price Index from January 1, 1994, to
282	January 1 of the year in which the project is scheduled to
283	begin.
284	(3)  All county officials, boards of county commissioners,
285	school boards, city councils, city commissioners, and all other
286	public officers of state boards or commissions that are charged
287	with the letting of contracts for public work, for the
288	construction of public bridges, buildings, and other structures
289	must always specify lumber, timber, and other forest products
290	produced and manufactured in this state if whenever such
291	products are available and their price, fitness, and quality are
292	equal. This subsection does not apply to when plywood specified
293	for monolithic concrete forms, if when the structural or service
294	requirements for timber for a particular job cannot be supplied
295	by native species, or if when the construction is financed in
296	whole or in part from federal funds with the requirement
297	requirements that there be no restrictions as to species or
298	place of manufacture.
299	(4)  If two or more responsive bids or proposals for a
300	project to be competitively awarded under this section are
301	otherwise equal with respect to price, quality, and service, the
302	local government may give preference to the contractor who
303	maintains the greatest local presence within the local
304	government's jurisdiction when awarding the project. For
305	purposes of this subsection, "local presence" includes
306	maintaining an office within the jurisdiction and employing
307	individuals or hiring subcontractors within the jurisdiction.
308	Except as provided in this subsection, a local government may
309	not give any consideration to a contractor's local presence or
310	similar criteria when evaluating bids or proposals or awarding a
311	project.
312	(5)(4)  Any qualified contractor or vendor who could have
313	been awarded the project had the project been competitively bid
314	has shall have standing to challenge the propriety of a the
315	local government's actions taken pursuant to when the local
316	government seeks to invoke the provisions of this section. The
317	prevailing party in such action is shall be entitled to recover
318	its reasonable attorney's fees.
319	Section 2.  This act shall take effect July 1, 2009.

CODING: Words stricken are deletions; words underlined are additions.