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.