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.
   47  Be It Enacted by the Legislature of the State of Florida:
   49         Section 1. Section 287.05705, Florida Statutes, is created
   50  to read:
   51         287.05705Procurements 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         337.0262Purchase 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         337.185State 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.
  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.