Florida Senate - 2023                                     SB 830
       
       
        
       By Senator Hooper
       
       
       
       
       
       21-01660-23                                            2023830__
    1                        A bill to be entitled                      
    2         An act relating to competitive award of public
    3         construction works contracts; amending s. 255.20,
    4         F.S.; revising the applicability of a requirement that
    5         certain governmental entities must competitively award
    6         certain public construction works contracts; making
    7         technical changes; providing an effective date.
    8          
    9  Be It Enacted by the Legislature of the State of Florida:
   10  
   11         Section 1. Paragraph (c) of subsection (1) of section
   12  255.20, Florida Statutes, is amended to read:
   13         255.20 Local bids and contracts for public construction
   14  works; specification of state-produced lumber.—
   15         (1) A county, municipality, special district as defined in
   16  chapter 189, or other political subdivision of the state seeking
   17  to construct or improve a public building, structure, or other
   18  public construction works must competitively award to an
   19  appropriately licensed contractor each project that is estimated
   20  to cost more than $300,000. For electrical work, the local
   21  government must competitively award to an appropriately licensed
   22  contractor each project that is estimated to cost more than
   23  $75,000. As used in this section, the term “competitively award”
   24  means to award contracts based on the submission of sealed bids,
   25  proposals submitted in response to a request for proposal,
   26  proposals submitted in response to a request for qualifications,
   27  or proposals submitted for competitive negotiation. This
   28  subsection expressly allows contracts for construction
   29  management services, design/build contracts, continuation
   30  contracts based on unit prices, and any other contract
   31  arrangement with a private sector contractor permitted by any
   32  applicable municipal or county ordinance, by district
   33  resolution, or by state law. For purposes of this section, cost
   34  includes employee compensation and benefits, except inmate
   35  labor, the cost of equipment and maintenance, insurance costs,
   36  and the cost of direct materials to be used in the construction
   37  of the project, including materials purchased by the local
   38  government, and other direct costs, plus a factor of 20 percent
   39  for management, overhead, and other indirect costs. Subject to
   40  the provisions of subsection (3), the county, municipality,
   41  special district, or other political subdivision may establish,
   42  by municipal or county ordinance or special district resolution,
   43  procedures for conducting the bidding process.
   44         (c) The provisions of This subsection does do not apply:
   45         1. If the project is undertaken to replace, reconstruct, or
   46  repair an existing public building, structure, or other public
   47  construction works damaged or destroyed by a sudden unexpected
   48  turn of events such as an act of God, riot, fire, flood,
   49  accident, or other urgent circumstances, and such damage or
   50  destruction creates:
   51         a. An immediate danger to the public health or safety;
   52         b. Other loss to public or private property which requires
   53  emergency government action; or
   54         c. An interruption of an essential governmental service.
   55         2. If, after notice by publication in accordance with the
   56  applicable ordinance or resolution, the governmental entity does
   57  not receive any responsive bids or proposals.
   58         3. To construction, remodeling, repair, or improvement to a
   59  public electric or gas utility system if such work on the public
   60  utility system is performed by personnel of the system.
   61         4. To construction, remodeling, repair, or improvement by a
   62  utility commission whose major contracts are to construct and
   63  operate a public electric utility system.
   64         5. If the project is undertaken as repair or maintenance of
   65  an existing public facility. For the purposes of this paragraph,
   66  the term “repair” means a corrective action to restore an
   67  existing public facility to a safe and functional condition and
   68  the term “maintenance” means a preventive or corrective action
   69  to maintain an existing public facility in an operational state
   70  or to preserve the facility from failure or decline. Repair or
   71  maintenance includes activities that are necessarily incidental
   72  to repairing or maintaining the facility. Repair or maintenance
   73  does not include the construction of any new building,
   74  structure, or other public construction works or any substantial
   75  addition, extension, or upgrade to an existing public facility.
   76  Such additions, extensions, or upgrades shall be considered
   77  substantial if the estimated cost of the additions, extensions,
   78  or upgrades included as part of the repair or maintenance
   79  project exceeds the threshold amount in subsection (1) and
   80  exceeds 20 percent of the estimated total cost of the repair or
   81  maintenance project fully accounting for all costs associated
   82  with performing and completing the work, including employee
   83  compensation and benefits, equipment cost and maintenance,
   84  insurance costs, and the cost of direct materials to be used in
   85  the construction of the project, including materials purchased
   86  by the local government, and other direct costs, plus a factor
   87  of 20 percent for management, overhead, and other indirect
   88  costs. An addition, extension, or upgrade may shall not be
   89  considered substantial if it is undertaken pursuant to the
   90  conditions specified in subparagraph 1., or if a consortium or
   91  cooperative purchasing agreement is utilized. Repair and
   92  maintenance projects and any related additions, extensions, or
   93  upgrades may not be divided into multiple projects for the
   94  purpose of evading the requirements of this subparagraph.
   95         6. If the project is undertaken exclusively as part of a
   96  public educational program.
   97         7. If the funding source of the project will be diminished
   98  or lost because the time required to competitively award the
   99  project after the funds become available exceeds the time within
  100  which the funding source must be spent.
  101         8. If the local government competitively awarded a project
  102  to a private sector contractor and the contractor abandoned the
  103  project before completion or the local government terminated the
  104  contract.
  105         9. If the governing board of the local government complies
  106  with all of the requirements of this subparagraph, conducts a
  107  public meeting under s. 286.011 after public notice, and finds
  108  by majority vote of the governing board that it is in the
  109  public’s best interest to perform the project using its own
  110  services, employees, and equipment. The public notice must be
  111  published at least 21 days before the date of the public meeting
  112  at which the governing board takes final action. The notice must
  113  identify the project, the components and scope of the work, and
  114  the estimated cost of the project fully accounting for all costs
  115  associated with performing and completing the work, including
  116  employee compensation and benefits, equipment cost and
  117  maintenance, insurance costs, and the cost of direct materials
  118  to be used in the construction of the project, including
  119  materials purchased by the local government, and other direct
  120  costs, plus a factor of 20 percent for management, overhead, and
  121  other indirect costs. The notice must specify that the purpose
  122  for the public meeting is to consider whether it is in the
  123  public’s best interest to perform the project using the local
  124  government’s own services, employees, and equipment. Upon
  125  publication of the public notice and for 21 days thereafter, the
  126  local government shall make available for public inspection,
  127  during normal business hours and at a location specified in the
  128  public notice, a detailed itemization of each component of the
  129  estimated cost of the project and documentation explaining the
  130  methodology used to arrive at the estimated cost. At the public
  131  meeting, any qualified contractor or vendor who could have been
  132  awarded the project had the project been competitively bid shall
  133  be provided with a reasonable opportunity to present evidence to
  134  the governing board regarding the project and the accuracy of
  135  the local government’s estimated cost of the project. In
  136  deciding whether it is in the public’s best interest for the
  137  local government to perform a project using its own services,
  138  employees, and equipment, the governing board must consider the
  139  estimated cost of the project fully accounting for all costs
  140  associated with performing and completing the work, including
  141  employee compensation and benefits, equipment cost and
  142  maintenance, insurance costs, and the cost of direct materials
  143  to be used in the construction of the project, including
  144  materials purchased by the local government, and other direct
  145  costs, plus a factor of 20 percent for management, overhead, and
  146  other indirect costs, and the accuracy of the estimated cost in
  147  light of any other information that may be presented at the
  148  public meeting and whether the project requires an increase in
  149  the number of government employees or an increase in capital
  150  expenditures for public facilities, equipment, or other capital
  151  assets. The local government may further consider the impact on
  152  local economic development, the impact on small and minority
  153  business owners, the impact on state and local tax revenues,
  154  whether the private sector contractors provide health insurance
  155  and other benefits equivalent to those provided by the local
  156  government, and any other factor relevant to what is in the
  157  public’s best interest. A report summarizing completed projects
  158  constructed by the local government pursuant to this subsection
  159  must shall be publicly reviewed each year by the governing body
  160  of the local government. The report must shall detail the
  161  estimated costs and the actual costs of the projects constructed
  162  by the local government pursuant to this subsection. The report
  163  must shall be made available for review by the public. The
  164  Auditor General shall review the report as part of his or her
  165  audits of local governments.
  166         10. If the governing board of the local government
  167  determines upon consideration of specific substantive criteria
  168  that it is in the best interest of the local government to award
  169  the project to an appropriately licensed private sector
  170  contractor pursuant to administrative procedures established by
  171  and expressly set forth in a charter, ordinance, or resolution
  172  of the local government adopted before July 1, 1994. The
  173  criteria and procedures must be set out in the charter,
  174  ordinance, or resolution and must be applied uniformly by the
  175  local government to avoid awarding a project in an arbitrary or
  176  capricious manner. This exception applies only if all of the
  177  following occur:
  178         a. The governing board of the local government, after
  179  public notice, conducts a public meeting under s. 286.011 and
  180  finds by a two-thirds vote of the governing board that it is in
  181  the public’s best interest to award the project according to the
  182  criteria and procedures established by charter, ordinance, or
  183  resolution. The public notice must be published at least 14 days
  184  before the date of the public meeting at which the governing
  185  board takes final action. The notice must identify the project,
  186  the estimated cost of the project, and specify that the purpose
  187  for the public meeting is to consider whether it is in the
  188  public’s best interest to award the project using the criteria
  189  and procedures permitted by the preexisting charter, ordinance,
  190  or resolution.
  191         b. The project is to be awarded by any method other than a
  192  competitive selection process, and the governing board finds
  193  evidence that:
  194         (I) There is one appropriately licensed contractor who is
  195  uniquely qualified to undertake the project because that
  196  contractor is currently under contract to perform work that is
  197  affiliated with the project; or
  198         (II) The time to competitively award the project will
  199  jeopardize the funding for the project, materially increase the
  200  cost of the project, or create an undue hardship on the public
  201  health, safety, or welfare.
  202         c. The project is to be awarded by any method other than a
  203  competitive selection process, and the published notice clearly
  204  specifies the ordinance or resolution by which the private
  205  sector contractor will be selected and the criteria to be
  206  considered.
  207         d. The project is to be awarded by a method other than a
  208  competitive selection process, and the architect or engineer of
  209  record has provided a written recommendation that the project be
  210  awarded to the private sector contractor without competitive
  211  selection, and the consideration by, and the justification of,
  212  the government body are documented, in writing, in the project
  213  file and are presented to the governing board before prior to
  214  the approval required in this paragraph.
  215         11. To projects subject to chapter 336.
  216         Section 2. This act shall take effect July 1, 2023.