Florida Senate - 2020                                     SB 504
       
       
        
       By Senator Perry
       
       
       
       
       
       8-00728-20                                             2020504__
    1                        A bill to be entitled                      
    2         An act relating to local government public
    3         construction works; amending s. 255.20, F.S.;
    4         requiring the governing board of a local government to
    5         consider estimated costs of certain projects using
    6         generally accepted cost-accounting principles that
    7         account for specified costs when the board is making a
    8         specified determination; prohibiting a local
    9         government from performing a project using its own
   10         services, employees, and equipment if the project
   11         requires an increase in the number of government
   12         employees or an increase in certain capital
   13         expenditures; requiring that a local government that
   14         performs projects using its own services, employees,
   15         and equipment disclose the actual costs of the project
   16         after completion to the Auditor General; requiring
   17         that the Auditor General review such disclosures as
   18         part of his or her routine audits of local
   19         governments; amending s. 336.41, F.S.; requiring
   20         estimated total construction project costs for certain
   21         projects to include specified costs; providing an
   22         effective date.
   23          
   24  Be It Enacted by the Legislature of the State of Florida:
   25  
   26         Section 1. Paragraph (c) of subsection (1) of section
   27  255.20, Florida Statutes, is amended to read:
   28         255.20 Local bids and contracts for public construction
   29  works; specification of state-produced lumber.—
   30         (1) A county, municipality, special district as defined in
   31  chapter 189, or other political subdivision of the state seeking
   32  to construct or improve a public building, structure, or other
   33  public construction works must competitively award to an
   34  appropriately licensed contractor each project that is estimated
   35  in accordance with generally accepted cost-accounting principles
   36  to cost more than $300,000. For electrical work, the local
   37  government must competitively award to an appropriately licensed
   38  contractor each project that is estimated in accordance with
   39  generally accepted cost-accounting principles to cost more than
   40  $75,000. As used in this section, the term “competitively award”
   41  means to award contracts based on the submission of sealed bids,
   42  proposals submitted in response to a request for proposal,
   43  proposals submitted in response to a request for qualifications,
   44  or proposals submitted for competitive negotiation. This
   45  subsection expressly allows contracts for construction
   46  management services, design/build contracts, continuation
   47  contracts based on unit prices, and any other contract
   48  arrangement with a private sector contractor permitted by any
   49  applicable municipal or county ordinance, by district
   50  resolution, or by state law. For purposes of this section, cost
   51  includes the cost of all labor, except inmate labor, and the
   52  cost of equipment and materials to be used in the construction
   53  of the project. Subject to the provisions of subsection (3), the
   54  county, municipality, special district, or other political
   55  subdivision may establish, by municipal or county ordinance or
   56  special district resolution, procedures for conducting the
   57  bidding process.
   58         (c) The provisions of this subsection do not apply:
   59         1. If the project is undertaken to replace, reconstruct, or
   60  repair an existing public building, structure, or other public
   61  construction works damaged or destroyed by a sudden unexpected
   62  turn of events such as an act of God, riot, fire, flood,
   63  accident, or other urgent circumstances, and such damage or
   64  destruction creates:
   65         a. An immediate danger to the public health or safety;
   66         b. Other loss to public or private property which requires
   67  emergency government action; or
   68         c. An interruption of an essential governmental service.
   69         2. If, after notice by publication in accordance with the
   70  applicable ordinance or resolution, the governmental entity does
   71  not receive any responsive bids or proposals.
   72         3. To construction, remodeling, repair, or improvement to a
   73  public electric or gas utility system if such work on the public
   74  utility system is performed by personnel of the system.
   75         4. To construction, remodeling, repair, or improvement by a
   76  utility commission whose major contracts are to construct and
   77  operate a public electric utility system.
   78         5. If the project is undertaken as repair or maintenance of
   79  an existing public facility. For the purposes of this paragraph,
   80  the term “repair” means a corrective action to restore an
   81  existing public facility to a safe and functional condition and
   82  the term “maintenance” means a preventive or corrective action
   83  to maintain an existing public facility in an operational state
   84  or to preserve the facility from failure or decline. Repair or
   85  maintenance includes activities that are necessarily incidental
   86  to repairing or maintaining the facility. Repair or maintenance
   87  does not include the construction of any new building,
   88  structure, or other public construction works or any substantial
   89  addition, extension, or upgrade to an existing public facility.
   90  Such additions, extensions, or upgrades shall be considered
   91  substantial if the estimated cost of the additions, extensions,
   92  or upgrades included as part of the repair or maintenance
   93  project exceeds the threshold amount in subsection (1) and
   94  exceeds 20 percent of the estimated total cost of the repair or
   95  maintenance project using generally accepted cost-accounting
   96  principles that fully account for all costs associated with
   97  performing and completing the work, including employee
   98  compensation and benefits, equipment cost and maintenance,
   99  insurance costs, and materials. An addition, extension, or
  100  upgrade shall not be considered substantial if it is undertaken
  101  pursuant to the conditions specified in subparagraph 1. Repair
  102  and maintenance projects and any related additions, extensions,
  103  or upgrades may not be divided into multiple projects for the
  104  purpose of evading the requirements of this subparagraph.
  105         6. If the project is undertaken exclusively as part of a
  106  public educational program.
  107         7. If the funding source of the project will be diminished
  108  or lost because the time required to competitively award the
  109  project after the funds become available exceeds the time within
  110  which the funding source must be spent.
  111         8. If the local government competitively awarded a project
  112  to a private sector contractor and the contractor abandoned the
  113  project before completion or the local government terminated the
  114  contract.
  115         9. If the governing board of the local government complies
  116  with all of the requirements of this subparagraph, conducts a
  117  public meeting under s. 286.011 after public notice, and finds
  118  by majority vote of the governing board that it is in the
  119  public’s best interest to perform the project using its own
  120  services, employees, and equipment. The public notice must be
  121  published at least 21 days before the date of the public meeting
  122  at which the governing board takes final action. The notice must
  123  identify the project, the components and scope of the work, and
  124  the estimated cost of the project using generally accepted cost
  125  accounting principles that fully account for all costs
  126  associated with performing and completing the work, including
  127  employee compensation and benefits, equipment cost and
  128  maintenance, insurance costs, and materials. The notice must
  129  specify that the purpose for the public meeting is to consider
  130  whether it is in the public’s best interest to perform the
  131  project using the local government’s own services, employees,
  132  and equipment. Upon publication of the public notice and for 21
  133  days thereafter, the local government shall make available for
  134  public inspection, during normal business hours and at a
  135  location specified in the public notice, a detailed itemization
  136  of each component of the estimated cost of the project and
  137  documentation explaining the methodology used to arrive at the
  138  estimated cost. At the public meeting, any qualified contractor
  139  or vendor who could have been awarded the project had the
  140  project been competitively bid shall be provided with a
  141  reasonable opportunity to present evidence to the governing
  142  board regarding the project and the accuracy of the local
  143  government’s estimated cost of the project. In deciding whether
  144  it is in the public’s best interest for the local government to
  145  perform a project using its own services, employees, and
  146  equipment, the governing board must consider the estimated cost
  147  of the project using generally accepted cost-accounting
  148  principles that fully account for all costs associated with
  149  performing and completing the work, including employee
  150  compensation and benefits, equipment costs and maintenance,
  151  insurance costs, and the cost of materials, and the accuracy of
  152  the estimated cost in light of any other information that may be
  153  presented at the public meeting and whether the project requires
  154  an increase in the number of government employees or an increase
  155  in capital expenditures for public facilities, equipment, or
  156  other capital assets. If the project requires an increase in the
  157  number of government employees or an increase in such capital
  158  expenditures, the local government may not perform the project
  159  using its own services, employees, and equipment. The local
  160  government may further consider the impact on local economic
  161  development, the impact on small and minority business owners,
  162  the impact on state and local tax revenues, whether the private
  163  sector contractors provide health insurance and other benefits
  164  equivalent to those provided by the local government, and any
  165  other factor relevant to what is in the public’s best interest.
  166  A local government that performs projects using its own
  167  services, employees, and equipment must disclose the actual
  168  costs of the project after completion to the Auditor General.
  169  The Auditor General shall review such disclosures as part of his
  170  or her routine audits of local governments.
  171         10. If the governing board of the local government
  172  determines upon consideration of specific substantive criteria
  173  that it is in the best interest of the local government to award
  174  the project to an appropriately licensed private sector
  175  contractor pursuant to administrative procedures established by
  176  and expressly set forth in a charter, ordinance, or resolution
  177  of the local government adopted before July 1, 1994. The
  178  criteria and procedures must be set out in the charter,
  179  ordinance, or resolution and must be applied uniformly by the
  180  local government to avoid awarding a project in an arbitrary or
  181  capricious manner. This exception applies only if all of the
  182  following occur:
  183         a. The governing board of the local government, after
  184  public notice, conducts a public meeting under s. 286.011 and
  185  finds by a two-thirds vote of the governing board that it is in
  186  the public’s best interest to award the project according to the
  187  criteria and procedures established by charter, ordinance, or
  188  resolution. The public notice must be published at least 14 days
  189  before the date of the public meeting at which the governing
  190  board takes final action. The notice must identify the project,
  191  the estimated cost of the project, and specify that the purpose
  192  for the public meeting is to consider whether it is in the
  193  public’s best interest to award the project using the criteria
  194  and procedures permitted by the preexisting charter, ordinance,
  195  or resolution.
  196         b. The project is to be awarded by any method other than a
  197  competitive selection process, and the governing board finds
  198  evidence that:
  199         (I) There is one appropriately licensed contractor who is
  200  uniquely qualified to undertake the project because that
  201  contractor is currently under contract to perform work that is
  202  affiliated with the project; or
  203         (II) The time to competitively award the project will
  204  jeopardize the funding for the project, materially increase the
  205  cost of the project, or create an undue hardship on the public
  206  health, safety, or welfare.
  207         c. The project is to be awarded by any method other than a
  208  competitive selection process, and the published notice clearly
  209  specifies the ordinance or resolution by which the private
  210  sector contractor will be selected and the criteria to be
  211  considered.
  212         d. The project is to be awarded by a method other than a
  213  competitive selection process, and the architect or engineer of
  214  record has provided a written recommendation that the project be
  215  awarded to the private sector contractor without competitive
  216  selection, and the consideration by, and the justification of,
  217  the government body are documented, in writing, in the project
  218  file and are presented to the governing board prior to the
  219  approval required in this paragraph.
  220         11. To projects subject to chapter 336.
  221         Section 2. Subsection (4) of section 336.41, Florida
  222  Statutes, is amended to read:
  223         336.41 Counties; employing labor and providing road
  224  equipment; accounting; when competitive bidding required.—
  225         (4) All construction and reconstruction of roads and
  226  bridges, including resurfacing, full scale mineral seal coating,
  227  and major bridge and bridge system repairs, to be performed
  228  utilizing the proceeds of the 80-percent portion of the surplus
  229  of the constitutional gas tax shall be let to contract to the
  230  lowest responsible bidder by competitive bid, except for:
  231         (a) Construction and maintenance in emergency situations;,
  232  and
  233         (b) In addition to emergency work, construction and
  234  reconstruction, including resurfacing, mineral seal coating, and
  235  bridge repairs, having a total cumulative annual value not to
  236  exceed 5 percent of its 80-percent portion of the constitutional
  237  gas tax or $400,000, whichever is greater;, and
  238         (c) Construction of sidewalks, curbing, accessibility
  239  ramps, or appurtenances incidental to roads and bridges if each
  240  project is estimated in accordance with generally accepted cost
  241  accounting principles to have total construction project costs
  242  of less than $400,000 or as adjusted by the percentage change in
  243  the Construction Cost Index from January 1, 2008,
  244  
  245  for which the county may utilize its own forces. Estimated total
  246  construction project costs must include all costs associated
  247  with performing and completing the work, including employee
  248  compensation and benefits, equipment costs and maintenance,
  249  insurance costs, and the cost of materials. However, if, after
  250  proper advertising, no bids are received by a county for a
  251  specific project, the county may use its own forces to construct
  252  the project, notwithstanding the limitation of this subsection.
  253  Nothing in this section shall prevent the county from performing
  254  routine maintenance as authorized by law.
  255         Section 3. This act shall take effect July 1, 2020.