Florida Senate - 2021                                    SB 1194
       By Senator Hooper
       16-00746B-21                                          20211194__
    1                        A bill to be entitled                      
    2         An act relating to transportation; creating s.
    3         287.05705, F.S.; providing that certain governmental
    4         entities may not prohibit certain vendors from
    5         responding to competitive solicitations of certain
    6         contractual services; providing applicability;
    7         amending s. 316.2397, F.S.; revising provisions
    8         authorizing vehicles to show or display flashing
    9         lights; amending s. 337.025, F.S.; revising the type
   10         of transportation project contracts that are subject
   11         to an annual cap; revising application of such cap;
   12         amending s. 337.14, F.S.; requiring contractors
   13         wishing to bid on certain contracts to first be
   14         certified by the Department of Transportation as
   15         qualified; revising requirements for applying for and
   16         issuing a certificate of qualification; providing
   17         construction with respect to submission and approval
   18         of an application for such certificate; exempting
   19         airports from certain restrictions regarding entities
   20         performing engineering and inspection services;
   21         amending s. 337.185, F.S.; revising and providing
   22         definitions; revising requirements for arbitration of
   23         certain contracts by the State Arbitration Board;
   24         revising requirements regarding arbitration requests,
   25         hearings, procedures, and awards; revising membership
   26         and meeting requirements; revising compensation of
   27         board members; amending s. 378.403, F.S.; defining the
   28         term “borrow pit”; amending s. 378.801, F.S.;
   29         prohibiting operation of a borrow pit at a new
   30         location without notifying the Secretary of
   31         Environmental Protection of the intent to extract;
   32         conforming provisions to changes made by the act;
   33         amending s. 378.802, F.S.; revising application of
   34         provisions to exclude existing locations; providing an
   35         effective date.
   37  Be It Enacted by the Legislature of the State of Florida:
   39         Section 1. Section 287.05705, Florida Statutes, is created
   40  to read:
   41         287.05705Procurements of road, bridge, and other specified
   42  public construction services.—
   43         (1)With respect to competitive solicitations for the
   44  procurement of contractual services that are limited to the
   45  classes of work for which the Department of Transportation
   46  issues certificates of qualification pursuant to s. 337.14, and
   47  which services do not involve the construction, remodeling,
   48  repair, or improvement of any building, a governmental entity
   49  procuring such services may not prohibit a response from a
   50  vendor possessing a valid certificate of qualification under s.
   51  337.14 or license under chapter 489 corresponding to the
   52  contractual services being procured.
   53         (2)This section applies to all competitive solicitations
   54  issued by a governmental entity on or after October 1, 2021.
   55         Section 2. Present subsection (10) of section 316.2397,
   56  Florida Statutes, is redesignated as subsection (12), new
   57  subsections (10) and (11) are added to that section, and
   58  subsections (2) and (7) of that section are amended, to read:
   59         316.2397 Certain lights prohibited; exceptions.—
   60         (2) It is expressly prohibited for any vehicle or
   61  equipment, except police vehicles and vehicles and equipment
   62  specified in subsections (10) and (11), to show or display blue
   63  lights. However, vehicles owned, operated, or leased by the
   64  Department of Corrections or any county correctional agency may
   65  show or display blue lights when responding to emergencies.
   66         (7) Flashing lights are prohibited on vehicles except:
   67         (a) As a means of indicating a right or left turn, to
   68  change lanes, or to indicate that the vehicle is lawfully
   69  stopped or disabled upon the highway;
   70         (b) When a motorist intermittently flashes his or her
   71  vehicle’s headlamps at an oncoming vehicle notwithstanding the
   72  motorist’s intent for doing so;
   73         (c)During periods of extremely low visibility on roadways
   74  with a posted speed limit of 55 miles per hour or higher; and
   75         (d)(c) For the lamps authorized under subsections (1), (2),
   76  (3), (4), and (9), s. 316.2065, or s. 316.235(6) which may
   77  flash.
   78         (10)Construction vehicles within a work zone on roadways
   79  with a posted speed limit of 55 miles per hour or higher may
   80  show or display flashing blue lights while performing paving
   81  operations or where a hazard exists.
   82         (11)Under the direction of a law enforcement officer,
   83  portable radar speed display units in advance of a work zone on
   84  roadways with a posted speed limit of 55 miles per hour or
   85  higher may show or display flashing red and blue lights when
   86  workers are present.
   87         Section 3. Section 337.025, Florida Statutes, is amended to
   88  read:
   89         337.025 Innovative transportation projects; department to
   90  establish program.—
   91         (1) The department may establish a program for
   92  transportation projects demonstrating innovative techniques of
   93  highway and bridge design, construction, maintenance, and
   94  finance which have the intended effect of measuring resiliency
   95  and structural integrity and controlling time and cost increases
   96  on construction projects. Such techniques may include, but are
   97  not limited to, state-of-the-art technology for pavement,
   98  safety, and other aspects of highway and bridge design,
   99  construction, and maintenance; innovative bidding and financing
  100  techniques; accelerated construction procedures; and those
  101  techniques that have the potential to reduce project life cycle
  102  costs. To the maximum extent practical, the department must use
  103  the existing process to award and administer construction and
  104  maintenance contracts. When specific innovative techniques are
  105  to be used, the department is not required to adhere to those
  106  provisions of law that would prevent, preclude, or in any way
  107  prohibit the department from using the innovative technique.
  108  However, before using an innovative technique that is
  109  inconsistent with another provision of law, the department must
  110  document in writing the need for the exception and identify what
  111  benefits the traveling public and the affected community are
  112  anticipated to receive. The department may enter into no more
  113  than $120 million in contracts awarded annually for the purposes
  114  authorized by this section.
  115         (2) The annual cap on contracts provided in subsection (1)
  116  does shall not apply to:
  117         (a) Turnpike enterprise projects, and turnpike enterprise
  118  projects shall not be counted toward the department’s annual
  119  cap.
  120         (b) Low-bid design-build milling and resurfacing contracts
  121  Transportation projects funded by the American Recovery and
  122  Reinvestment Act of 2009.
  123         Section 4. Subsections (1), (4), and (7) of section 337.14,
  124  Florida Statutes, are amended to read:
  125         337.14 Application for qualification; certificate of
  126  qualification; restrictions; request for hearing.—
  127         (1) Any contractor desiring to bid for the performance of
  128  any construction contract in excess of $250,000 which the
  129  department proposes to let must first be certified by the
  130  department as qualified pursuant to this section and rules of
  131  the department. The rules of the department must address the
  132  qualification of contractors to bid on construction contracts in
  133  excess of $250,000 and must include requirements with respect to
  134  the equipment, past record, experience, financial resources, and
  135  organizational personnel of the applying contractor which are
  136  necessary to perform the specific class of work for which the
  137  contractor seeks certification. Any contractor who desires to
  138  bid on contracts in excess of $50 million and who is not
  139  qualified and in good standing with the department as of January
  140  1, 2019, must first be certified by the department as qualified
  141  and desires to bid on contracts in excess of $50 million must
  142  have satisfactorily completed two projects, each in excess of
  143  $15 million, for the department or for any other state
  144  department of transportation. The department may limit the
  145  dollar amount of any contract upon which a contractor is
  146  qualified to bid or the aggregate total dollar volume of
  147  contracts such contractor is allowed to have under contract at
  148  any one time. Each applying contractor seeking qualification to
  149  bid on construction contracts in excess of $250,000 shall
  150  furnish the department a statement under oath, on such forms as
  151  the department may prescribe, setting forth detailed information
  152  as required on the application. Each application for
  153  certification must be accompanied by audited, certified
  154  financial statements prepared in accordance with generally
  155  accepted accounting principles and auditing standards by a
  156  certified public accountant licensed in this state or another
  157  state. The audited, certified financial statements must be for
  158  the applying contractor and must have been prepared the latest
  159  annual financial statement of the applying contractor completed
  160  within the immediately preceding last 12 months. The department
  161  may not consider any financial information of the parent entity
  162  of the applying contractor, if any. The department may not
  163  certify as qualified any applying contractor who fails to submit
  164  the audited, certified financial statements required by this
  165  subsection. If the application or the annual financial statement
  166  shows the financial condition of the applying contractor more
  167  than 4 months before prior to the date on which the application
  168  is received by the department, the applicant must also submit an
  169  interim audited, certified financial statements prepared in
  170  accordance with generally accepted accounting principles and
  171  auditing standards by a certified public accountant licensed in
  172  this state or another state statement and an updated application
  173  must be submitted. The interim financial statements statement
  174  must cover the period from the end date of the annual statement
  175  and must show the financial condition of the applying contractor
  176  no more than 4 months before prior to the date that the interim
  177  financial statements are statement is received by the
  178  department. However, upon the request of the applying
  179  contractor, an application and accompanying annual or interim
  180  financial statement received by the department within 15 days
  181  after either 4-month period under this subsection shall be
  182  considered timely. Each required annual or interim financial
  183  statement must be audited and accompanied by the opinion of a
  184  certified public accountant. An applying contractor desiring to
  185  bid exclusively for the performance of construction contracts
  186  with proposed budget estimates of less than $1 million may
  187  submit reviewed annual or reviewed interim financial statements
  188  prepared by a certified public accountant. The information
  189  required by this subsection is confidential and exempt from s.
  190  119.07(1). The department shall act upon the application for
  191  qualification within 30 days after the department determines
  192  that the application is complete. The department may waive the
  193  requirements of this subsection for projects having a contract
  194  price of $500,000 or less if the department determines that the
  195  project is of a noncritical nature and the waiver will not
  196  endanger public health, safety, or property.
  197         (4) If the applicant is found to possess the prescribed
  198  qualifications, the department shall issue to him or her a
  199  certificate of qualification that, unless thereafter revoked by
  200  the department for good cause, will be valid for a period of 18
  201  months after the date of the applicant’s financial statement or
  202  such shorter period as the department prescribes. Submission of
  203  an application and subsequent approval do shall not affect
  204  expiration of the certificate of qualification, the ability
  205  factor of the applicant, or the maximum capacity rating of the
  206  applicant. If the department finds that an application is
  207  incomplete or contains inadequate information or information
  208  that cannot be verified, the department may request in writing
  209  that the applicant provide the necessary information to complete
  210  the application or provide the source from which any information
  211  in the application may be verified. If the applicant fails to
  212  comply with the initial written request within a reasonable
  213  period of time as specified therein, the department shall
  214  request the information a second time. If the applicant fails to
  215  comply with the second request within a reasonable period of
  216  time as specified therein, the application shall be denied.
  217         (7) A “contractor” as defined in s. 337.165(1)(d) or his or
  218  her “affiliate” as defined in s. 337.165(1)(a) qualified with
  219  the department under this section may not also qualify under s.
  220  287.055 or s. 337.105 to provide testing services, construction,
  221  engineering, and inspection services to the department. This
  222  limitation does not apply to any design-build prequalification
  223  under s. 337.11(7) and does not apply when the department
  224  otherwise determines by written order entered at least 30 days
  225  before advertisement that the limitation is not in the best
  226  interests of the public with respect to a particular contract
  227  for testing services, construction, engineering, and inspection
  228  services. This subsection does not authorize a contractor to
  229  provide testing services, or provide construction, engineering,
  230  and inspection services, to the department in connection with a
  231  construction contract under which the contractor is performing
  232  any work. Notwithstanding any other provision of law to the
  233  contrary, for a project that is wholly or partially funded by
  234  the department and administered by a local governmental entity,
  235  except for a seaport listed in s. 311.09 or an airport as
  236  defined in s. 332.004, the entity performing design and
  237  construction engineering and inspection services may not be the
  238  same entity.
  239         Section 5. Section 337.185, Florida Statutes, is amended to
  240  read:
  241         (Substantial rewording of section. See
  242         s. 337.185, F.S., for present text.)
  243         337.185State Arbitration Board.—
  244         (1)To facilitate the prompt resolution of claims arising
  245  out of or in connection with a construction or maintenance
  246  contract with the department, the Legislature establishes the
  247  State Arbitration Board, referred to in this section as the
  248  “board.”
  249         (2)As used in this section, the term:
  250         (a)“Claim” means the aggregate of all outstanding written
  251  requests for additional monetary compensation, time, or other
  252  adjustments to the contract, the entitlement or impact of which
  253  is disputed by the department and could not be resolved by
  254  negotiation between the department and the contractor.
  255         (b)“Contractor” means a person or firm having a contract
  256  for rendering services to the department relating to the
  257  construction or maintenance of a transportation facility.
  258         (c)“Final acceptance” means that the contractor has
  259  completely performed the work provided for under the contract,
  260  the department or its agent has determined that the contractor
  261  has satisfactorily completed the work provided for under the
  262  contract, and the department or its agent has submitted written
  263  notice of final acceptance to the contractor.
  264         (3)Every claim in an amount of up to $250,000 per contract
  265  that could not be resolved by negotiation between the department
  266  and the contractor must be arbitrated by the board. An award
  267  issued by the board pursuant to this section is final and
  268  enforceable by a court of law.
  269         (4)The contractor may submit a claim greater than $250,000
  270  up to $1 million per contract or, upon agreement of the parties,
  271  up to $2 million per contract to be arbitrated by the board. An
  272  award issued by the board pursuant to this subsection is final
  273  if a request for a trial de novo is not filed within the time
  274  provided by Rule 1.830, Florida Rules of Civil Procedure. At the
  275  trial de novo, the court may not admit evidence that there has
  276  been an arbitration proceeding, the nature or amount of the
  277  award, or any other matter concerning the conduct of the
  278  arbitration proceeding, except that testimony given at an
  279  arbitration hearing may be used for any purpose otherwise
  280  permitted by the Florida Evidence Code. If a request for trial
  281  de novo is not filed within the time provided, the award issued
  282  by the board is final and enforceable by a court of law.
  283         (5)An arbitration request may not be made to the board
  284  before final acceptance but must be made to the board within 820
  285  days after final acceptance.
  286         (6)The board shall schedule a hearing within 45 days after
  287  an arbitration request and, if possible, shall conduct the
  288  hearing within 90 days after the request. The board may
  289  administer oaths and conduct the proceedings as provided by the
  290  rules of the court. The hearing shall be conducted informally.
  291  Presentation of testimony and evidence shall be kept to a
  292  minimum, and matters shall be presented to the arbitrators
  293  primarily through the statements and arguments of counsel. The
  294  board shall address the scope of discovery, presentation of
  295  testimony, and evidence at a preliminary hearing by considering
  296  the size, subject matter, and complexity of the dispute. Any
  297  party to the arbitration may petition the board, for good cause
  298  shown, to issue subpoenas for the attendance of witnesses and
  299  the production of books, records, documents, and other evidence
  300  at the arbitration and may petition the board for orders
  301  compelling such attendance and production at the arbitration.
  302  Subpoenas shall be served and are enforceable in the manner
  303  provided by law.
  304         (7)The board must issue an award within 45 days after the
  305  conclusion of the arbitration hearing. If all three members of
  306  the board do not agree, the award agreed to by the majority
  307  shall constitute the award of the board.
  308         (8)The board shall be composed of three members. The first
  309  member shall be appointed by the Secretary of Transportation,
  310  and the second member shall be elected by those construction or
  311  maintenance companies that are under contract with the
  312  department. The third member shall be chosen by agreement of the
  313  first and second members. If the first or second member has a
  314  conflict of interest regarding affiliation with one of the
  315  parties to an arbitration hearing, the appointing entity shall
  316  appoint an alternate member for that hearing. If the third
  317  member has such a conflict of interest, the first and second
  318  members shall select an alternate member. Each member shall
  319  serve a 4-year term. The board shall elect a chair for each
  320  term, who shall be the administrator of the board and custodian
  321  of its records.
  322         (9)The presence of all board members is required to
  323  conduct a meeting in person or via videoconferencing.
  324         (10)The members of the board shall receive compensation
  325  for the performance of their duties from deposits made by the
  326  parties based on an estimate of compensation by the board,
  327  except that an employee of the department may not receive
  328  compensation from the board. All deposits will be held in escrow
  329  by the chair in advance of the hearing. Each member eligible for
  330  compensation shall be compensated at $200 per hour, up to a
  331  maximum of $1,500 per day. A member shall be reimbursed for the
  332  actual cost of his or her travel expenses. The board may
  333  allocate funds annually for clerical and other administrative
  334  services.
  335         (11)To cover the cost of administration and initial
  336  compensation of the board, the party requesting arbitration
  337  shall pay a filing fee to the board, according to a schedule
  338  established by the board, of:
  339         (a)Up to $500 for a claim that is $25,000 or less.
  340         (b)Up to $1,000 for a claim that is more than $25,000 but
  341  is $50,000 or less.
  342         (c)Up to $1,500 for a claim that is more than $50,000 but
  343  is $100,000 or less.
  344         (d)Up to $2,000 for a claim that is more than $100,000 but
  345  is $200,000 or less.
  346         (e)Up to $3,000 for a claim that is more than $200,000 but
  347  is $300,000 or less.
  348         (f)Up to $4,000 for a claim that is more than $300,000 but
  349  is $400,000 or less.
  350         (g)Up to $5,000 for a claim that is more than $400,000.
  352  The board may apportion the filing fees and the cost of
  353  recording and preparing a transcript of the hearing among the
  354  parties in its award.
  355         Section 6. Present subsections (3) through (19) of section
  356  378.403, Florida Statutes, are redesignated as subsections (4)
  357  through (20), respectively, and a new subsection (3) is added to
  358  that section, to read:
  359         378.403 Definitions.—As used in this part, the term:
  360         (3)“Borrow pit” means an area of land upon which
  361  excavation of surface resources has been conducted, is being
  362  conducted, or is planned to be conducted, as the term is
  363  commonly used in the mining trade, and is not considered a mine.
  364  Such resources are limited to soil, organic soil, sand, or clay
  365  that can be removed with construction excavating equipment and
  366  loaded on a haul truck with no additional processing.
  367         Section 7. Section 378.801, Florida Statutes, is amended to
  368  read:
  369         378.801 Other resources; notice of intent to extract mine
  370  required.—
  371         (1) An No operator may not begin the operation of a borrow
  372  pit, or the process of extracting clay, peat, gravel, sand, or
  373  any other solid substance of commercial value found in natural
  374  deposits or in the earth, except fuller’s earth clay, heavy
  375  minerals, limestone, or phosphate, which are regulated elsewhere
  376  in this chapter, at a new location mine without notifying the
  377  secretary of the intention to extract mine.
  378         (2) The operator’s notice of intent to extract mine shall
  379  consist of the operator’s estimated life of the extraction
  380  location mine and the operator’s signed acknowledgment of the
  381  performance standards provided by s. 378.803.
  382         Section 8. Section 378.802, Florida Statutes, is amended to
  383  read:
  384         378.802 Existing extraction locations mines.—After January
  385  1, 1989, all operators of existing locations mines for the
  386  extraction of resources as described in s. 378.801 shall meet
  387  the performance standards provided by s. 378.803 for any new
  388  surface area disturbed at such locations mines.
  389         Section 9. This act shall take effect July 1, 2021.