Florida Senate - 2021 CS for SB 1194
By the Committee on Transportation; and Senator Hooper
596-03295-21 20211194c1
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 and equipment to show or display
9 flashing lights; amending s. 337.025, F.S.; revising
10 the type of transportation project contracts that are
11 subject to an annual cap; revising application of such
12 cap; creating s. 337.0262, F.S.; prohibiting the
13 Department of Transportation and contractors and
14 subcontractors of the department from purchasing
15 specified substances from a borrow pit unless
16 specified conditions are satisfied; requiring certain
17 contracts, subcontracts, and purchase orders to
18 require compliance with the prohibition; requiring the
19 department to cease acceptance of substances from a
20 borrow pit under certain conditions; authorizing the
21 department to resume acceptance of such substances
22 under certain conditions; amending s. 337.14, F.S.;
23 requiring contractors wishing to bid on certain
24 contracts to first be certified by the Department of
25 Transportation as qualified; revising requirements for
26 applying for and issuing a certificate of
27 qualification; providing construction with respect to
28 submission and approval of an application for such
29 certificate; exempting airports from certain
30 restrictions regarding entities performing engineering
31 and inspection services; amending s. 337.185, F.S.;
32 revising and providing definitions; revising
33 requirements for arbitration of certain contracts by
34 the State Arbitration Board; revising requirements
35 regarding arbitration requests, hearings, procedures,
36 and awards; revising membership and meeting
37 requirements; revising compensation of board members;
38 amending s. 378.403, F.S.; defining the term “borrow
39 pit”; amending s. 378.801, F.S.; prohibiting operation
40 of a borrow pit at a new location without notifying
41 the Secretary of Environmental Protection of the
42 intent to extract; conforming provisions to changes
43 made by the act; amending s. 378.802, F.S.; revising
44 application of provisions to exclude existing
45 locations; providing an effective date.
46
47 Be It Enacted by the Legislature of the State of Florida:
48
49 Section 1. Section 287.05705, Florida Statutes, is created
50 to read:
51 287.05705 Procurements of road, bridge, and other specified
52 public construction services.—
53 (1) With respect to competitive solicitations for the
54 procurement of contractual services that are limited to the
55 classes of work for which the Department of Transportation
56 issues certificates of qualification pursuant to s. 337.14, and
57 which services do not involve the construction, remodeling,
58 repair, or improvement of any building, a governmental entity
59 procuring such services may not prohibit a response from a
60 vendor possessing a valid certificate of qualification under s.
61 337.14 or license under chapter 489 corresponding to the
62 contractual services being procured.
63 (2) This section applies to all competitive solicitations
64 issued by a governmental entity on or after October 1, 2021.
65 Section 2. Subsections (5) and (7) of section 316.2397,
66 Florida Statutes, are amended to read:
67 316.2397 Certain lights prohibited; exceptions.—
68 (5) Road maintenance and construction equipment and
69 vehicles may display flashing white lights or flashing white
70 strobe lights when in operation and where a hazard exists.
71 Construction equipment in a work zone on roadways with a posted
72 speed limit of 55 miles per hour or higher may show or display a
73 combination of flashing green, amber, and red lights in
74 conjunction with periods when workers are present. Additionally,
75 school buses and vehicles that are used to transport farm
76 workers may display flashing white strobe lights.
77 (7) Flashing lights are prohibited on vehicles except:
78 (a) As a means of indicating a right or left turn, to
79 change lanes, or to indicate that the vehicle is lawfully
80 stopped or disabled upon the highway;
81 (b) When a motorist intermittently flashes his or her
82 vehicle’s headlamps at an oncoming vehicle notwithstanding the
83 motorist’s intent for doing so;
84 (c) During periods of extremely low visibility on roadways
85 with a posted speed limit of 55 miles per hour or higher; and
86 (d)(c) For the lamps authorized under subsections (1), (2),
87 (3), (4), and (9), s. 316.2065, or s. 316.235(6) which may
88 flash.
89 Section 3. Section 337.025, Florida Statutes, is amended to
90 read:
91 337.025 Innovative transportation projects; department to
92 establish program.—
93 (1) The department may establish a program for
94 transportation projects demonstrating innovative techniques of
95 highway and bridge design, construction, maintenance, and
96 finance which have the intended effect of measuring resiliency
97 and structural integrity and controlling time and cost increases
98 on construction projects. Such techniques may include, but are
99 not limited to, state-of-the-art technology for pavement,
100 safety, and other aspects of highway and bridge design,
101 construction, and maintenance; innovative bidding and financing
102 techniques; accelerated construction procedures; and those
103 techniques that have the potential to reduce project life cycle
104 costs. To the maximum extent practical, the department must use
105 the existing process to award and administer construction and
106 maintenance contracts. When specific innovative techniques are
107 to be used, the department is not required to adhere to those
108 provisions of law that would prevent, preclude, or in any way
109 prohibit the department from using the innovative technique.
110 However, before using an innovative technique that is
111 inconsistent with another provision of law, the department must
112 document in writing the need for the exception and identify what
113 benefits the traveling public and the affected community are
114 anticipated to receive. The department may enter into no more
115 than $120 million in contracts awarded annually for the purposes
116 authorized by this section.
117 (2) The annual cap on contracts provided in subsection (1)
118 does shall not apply to:
119 (a) Turnpike enterprise projects, and turnpike enterprise
120 projects shall not be counted toward the department’s annual
121 cap.
122 (b) Low-bid design-build milling and resurfacing contracts
123 Transportation projects funded by the American Recovery and
124 Reinvestment Act of 2009.
125 Section 4. Section 337.0262, Florida Statutes, is created
126 to read:
127 337.0262 Purchase and use of clay, peat, gravel, sand, or
128 any other solid substance extracted from borrow pits.—
129 (1) The department, and any contractor or subcontractor of
130 the department, may not purchase or use any clay, peat, gravel,
131 sand, or other solid substance extracted from a borrow pit as
132 defined in s. 378.403 unless:
133 (a) Certification is provided to the department,
134 contractor, or subcontractor by the operator of the borrow pit
135 that it is in compliance with the notice requirements and
136 substantive requirements of s. 378.801; and
137 (b) The operator of the borrow pit is in compliance with
138 the performance standards in s. 378.803, including, but not
139 limited to, providing proof of currently valid permits required
140 by the Department of Environmental Protection and the
141 appropriate water management district.
142 (2) All contracts and purchase orders executed by the
143 department, and all subcontracts and purchase orders executed by
144 contractors or subcontractors after July 1, 2021, must include
145 specific requirements for compliance with this section.
146 (3) In the event that the department determines that
147 substances are being obtained and used from a borrow pit that is
148 not in compliance with this section, the department must cease
149 to accept any substances from that borrow pit within 48 hours
150 after such determination. The department may resume acceptance
151 of substances from the borrow pit once the borrow pit is in
152 compliance with this section.
153 Section 5. Subsections (1), (4), and (7) of section 337.14,
154 Florida Statutes, are amended to read:
155 337.14 Application for qualification; certificate of
156 qualification; restrictions; request for hearing.—
157 (1) Any contractor desiring to bid for the performance of
158 any construction contract in excess of $250,000 which the
159 department proposes to let must first be certified by the
160 department as qualified pursuant to this section and rules of
161 the department. The rules of the department must address the
162 qualification of contractors to bid on construction contracts in
163 excess of $250,000 and must include requirements with respect to
164 the equipment, past record, experience, financial resources, and
165 organizational personnel of the applying contractor which are
166 necessary to perform the specific class of work for which the
167 contractor seeks certification. Any contractor who desires to
168 bid on contracts in excess of $50 million and who is not
169 qualified and in good standing with the department as of January
170 1, 2019, must first be certified by the department as qualified
171 and desires to bid on contracts in excess of $50 million must
172 have satisfactorily completed two projects, each in excess of
173 $15 million, for the department or for any other state
174 department of transportation. The department may limit the
175 dollar amount of any contract upon which a contractor is
176 qualified to bid or the aggregate total dollar volume of
177 contracts such contractor is allowed to have under contract at
178 any one time. Each applying contractor seeking qualification to
179 bid on construction contracts in excess of $250,000 shall
180 furnish the department a statement under oath, on such forms as
181 the department may prescribe, setting forth detailed information
182 as required on the application. Each application for
183 certification must be accompanied by audited, certified
184 financial statements prepared in accordance with generally
185 accepted accounting principles and auditing standards by a
186 certified public accountant licensed in this state or another
187 state. The audited, certified financial statements must be for
188 the applying contractor and must have been prepared the latest
189 annual financial statement of the applying contractor completed
190 within the immediately preceding last 12 months. The department
191 may not consider any financial information of the parent entity
192 of the applying contractor, if any. The department may not
193 certify as qualified any applying contractor who fails to submit
194 the audited, certified financial statements required by this
195 subsection. If the application or the annual financial statement
196 shows the financial condition of the applying contractor more
197 than 4 months before prior to the date on which the application
198 is received by the department, the applicant must also submit an
199 interim audited, certified financial statements prepared in
200 accordance with generally accepted accounting principles and
201 auditing standards by a certified public accountant licensed in
202 this state or another state statement and an updated application
203 must be submitted. The interim financial statements statement
204 must cover the period from the end date of the annual statement
205 and must show the financial condition of the applying contractor
206 no more than 4 months before prior to the date that the interim
207 financial statements are statement is received by the
208 department. However, upon the request of the applying
209 contractor, an application and accompanying annual or interim
210 financial statement received by the department within 15 days
211 after either 4-month period under this subsection shall be
212 considered timely. Each required annual or interim financial
213 statement must be audited and accompanied by the opinion of a
214 certified public accountant. An applying contractor desiring to
215 bid exclusively for the performance of construction contracts
216 with proposed budget estimates of less than $1 million may
217 submit reviewed annual or reviewed interim financial statements
218 prepared by a certified public accountant. The information
219 required by this subsection is confidential and exempt from s.
220 119.07(1). The department shall act upon the application for
221 qualification within 30 days after the department determines
222 that the application is complete. The department may waive the
223 requirements of this subsection for projects having a contract
224 price of $500,000 or less if the department determines that the
225 project is of a noncritical nature and the waiver will not
226 endanger public health, safety, or property.
227 (4) If the applicant is found to possess the prescribed
228 qualifications, the department shall issue to him or her a
229 certificate of qualification that, unless thereafter revoked by
230 the department for good cause, will be valid for a period of 18
231 months after the date of the applicant’s financial statement or
232 such shorter period as the department prescribes. Submission of
233 an application and subsequent approval do shall not affect
234 expiration of the certificate of qualification, the ability
235 factor of the applicant, or the maximum capacity rating of the
236 applicant. If the department finds that an application is
237 incomplete or contains inadequate information or information
238 that cannot be verified, the department may request in writing
239 that the applicant provide the necessary information to complete
240 the application or provide the source from which any information
241 in the application may be verified. If the applicant fails to
242 comply with the initial written request within a reasonable
243 period of time as specified therein, the department shall
244 request the information a second time. If the applicant fails to
245 comply with the second request within a reasonable period of
246 time as specified therein, the application shall be denied.
247 (7) A “contractor” as defined in s. 337.165(1)(d) or his or
248 her “affiliate” as defined in s. 337.165(1)(a) qualified with
249 the department under this section may not also qualify under s.
250 287.055 or s. 337.105 to provide testing services, construction,
251 engineering, and inspection services to the department. This
252 limitation does not apply to any design-build prequalification
253 under s. 337.11(7) and does not apply when the department
254 otherwise determines by written order entered at least 30 days
255 before advertisement that the limitation is not in the best
256 interests of the public with respect to a particular contract
257 for testing services, construction, engineering, and inspection
258 services. This subsection does not authorize a contractor to
259 provide testing services, or provide construction, engineering,
260 and inspection services, to the department in connection with a
261 construction contract under which the contractor is performing
262 any work. Notwithstanding any other provision of law to the
263 contrary, for a project that is wholly or partially funded by
264 the department and administered by a local governmental entity,
265 except for a seaport listed in s. 311.09 or an airport as
266 defined in s. 332.004, the entity performing design and
267 construction engineering and inspection services may not be the
268 same entity.
269 Section 6. Section 337.185, Florida Statutes, is amended to
270 read:
271 (Substantial rewording of section. See
272 s. 337.185, F.S., for present text.)
273 337.185 State Arbitration Board.—
274 (1) To facilitate the prompt resolution of claims arising
275 out of or in connection with a construction or maintenance
276 contract with the department, the Legislature establishes the
277 State Arbitration Board, referred to in this section as the
278 “board.”
279 (2) As used in this section, the term:
280 (a) “Claim” means the aggregate of all outstanding written
281 requests for additional monetary compensation, time, or other
282 adjustments to the contract, the entitlement or impact of which
283 is disputed by the department and could not be resolved by
284 negotiation between the department and the contractor.
285 (b) “Contractor” means a person or firm having a contract
286 for rendering services to the department relating to the
287 construction or maintenance of a transportation facility.
288 (c) “Final acceptance” means that the contractor has
289 completely performed the work provided for under the contract,
290 the department or its agent has determined that the contractor
291 has satisfactorily completed the work provided for under the
292 contract, and the department or its agent has submitted written
293 notice of final acceptance to the contractor.
294 (3) Every claim in an amount of up to $250,000 per contract
295 that could not be resolved by negotiation between the department
296 and the contractor must be arbitrated by the board. An award
297 issued by the board pursuant to this section is final and
298 enforceable by a court of law.
299 (4) The contractor may submit a claim greater than $250,000
300 up to $1 million per contract or, upon agreement of the parties,
301 up to $2 million per contract to be arbitrated by the board. An
302 award issued by the board pursuant to this subsection is final
303 if a request for a trial de novo is not filed within the time
304 provided by Rule 1.830, Florida Rules of Civil Procedure. At the
305 trial de novo, the court may not admit evidence that there has
306 been an arbitration proceeding, the nature or amount of the
307 award, or any other matter concerning the conduct of the
308 arbitration proceeding, except that testimony given at an
309 arbitration hearing may be used for any purpose otherwise
310 permitted by the Florida Evidence Code. If a request for trial
311 de novo is not filed within the time provided, the award issued
312 by the board is final and enforceable by a court of law.
313 (5) An arbitration request may not be made to the board
314 before final acceptance but must be made to the board within 820
315 days after final acceptance.
316 (6) The board shall schedule a hearing within 45 days after
317 an arbitration request and, if possible, shall conduct the
318 hearing within 90 days after the request. The board may
319 administer oaths and conduct the proceedings as provided by the
320 rules of the court. The hearing shall be conducted informally.
321 Presentation of testimony and evidence shall be kept to a
322 minimum, and matters shall be presented to the arbitrators
323 primarily through the statements and arguments of counsel. The
324 board shall address the scope of discovery, presentation of
325 testimony, and evidence at a preliminary hearing by considering
326 the size, subject matter, and complexity of the dispute. Any
327 party to the arbitration may petition the board, for good cause
328 shown, to issue subpoenas for the attendance of witnesses and
329 the production of books, records, documents, and other evidence
330 at the arbitration and may petition the board for orders
331 compelling such attendance and production at the arbitration.
332 Subpoenas shall be served and are enforceable in the manner
333 provided by law.
334 (7) The board must issue an award within 45 days after the
335 conclusion of the arbitration hearing. If all three members of
336 the board do not agree, the award agreed to by the majority
337 shall constitute the award of the board.
338 (8) The board shall be composed of three members. The first
339 member shall be appointed by the Secretary of Transportation,
340 and the second member shall be elected by those construction or
341 maintenance companies that are under contract with the
342 department. The third member shall be chosen by agreement of the
343 first and second members. If the first or second member has a
344 conflict of interest regarding affiliation with one of the
345 parties to an arbitration hearing, the appointing entity shall
346 appoint an alternate member for that hearing. If the third
347 member has such a conflict of interest, the first and second
348 members shall select an alternate member. Each member shall
349 serve a 4-year term. The board shall elect a chair for each
350 term, who shall be the administrator of the board and custodian
351 of its records.
352 (9) The presence of all board members is required to
353 conduct a meeting in person or via videoconferencing.
354 (10) The members of the board shall receive compensation
355 for the performance of their duties from deposits made by the
356 parties based on an estimate of compensation by the board,
357 except that an employee of the department may not receive
358 compensation from the board. All deposits will be held in escrow
359 by the chair in advance of the hearing. Each member eligible for
360 compensation shall be compensated at $200 per hour, up to a
361 maximum of $1,500 per day. A member shall be reimbursed for the
362 actual cost of his or her travel expenses. The board may
363 allocate funds annually for clerical and other administrative
364 services.
365 (11) To cover the cost of administration and initial
366 compensation of the board, the party requesting arbitration
367 shall pay a filing fee to the board, according to a schedule
368 established by the board, of:
369 (a) Up to $500 for a claim that is $25,000 or less.
370 (b) Up to $1,000 for a claim that is more than $25,000 but
371 is $50,000 or less.
372 (c) Up to $1,500 for a claim that is more than $50,000 but
373 is $100,000 or less.
374 (d) Up to $2,000 for a claim that is more than $100,000 but
375 is $200,000 or less.
376 (e) Up to $3,000 for a claim that is more than $200,000 but
377 is $300,000 or less.
378 (f) Up to $4,000 for a claim that is more than $300,000 but
379 is $400,000 or less.
380 (g) Up to $5,000 for a claim that is more than $400,000.
381
382 The board may apportion the filing fees and the cost of
383 recording and preparing a transcript of the hearing among the
384 parties in its award.
385 Section 7. Present subsections (3) through (19) of section
386 378.403, Florida Statutes, are redesignated as subsections (4)
387 through (20), respectively, and a new subsection (3) is added to
388 that section, to read:
389 378.403 Definitions.—As used in this part, the term:
390 (3) “Borrow pit” means an area of land upon which
391 excavation of surface resources has been conducted, is being
392 conducted, or is planned to be conducted, as the term is
393 commonly used in the mining trade, and is not considered a mine.
394 Such resources are limited to soil, organic soil, sand, or clay
395 that can be removed with construction excavating equipment and
396 loaded on a haul truck with no additional processing.
397 Section 8. Section 378.801, Florida Statutes, is amended to
398 read:
399 378.801 Other resources; notice of intent to extract mine
400 required.—
401 (1) An No operator may not begin the operation of a borrow
402 pit, or the process of extracting clay, peat, gravel, sand, or
403 any other solid substance of commercial value found in natural
404 deposits or in the earth, except fuller’s earth clay, heavy
405 minerals, limestone, or phosphate, which are regulated elsewhere
406 in this chapter, at a new location mine without notifying the
407 secretary of the intention to extract mine.
408 (2) The operator’s notice of intent to extract mine shall
409 consist of the operator’s estimated life of the extraction
410 location mine and the operator’s signed acknowledgment of the
411 performance standards provided by s. 378.803.
412 Section 9. Section 378.802, Florida Statutes, is amended to
413 read:
414 378.802 Existing extraction locations mines.—After January
415 1, 1989, all operators of existing locations mines for the
416 extraction of resources as described in s. 378.801 shall meet
417 the performance standards provided by s. 378.803 for any new
418 surface area disturbed at such locations mines.
419 Section 10. This act shall take effect July 1, 2021.