Florida Senate - 2022 CS for CS for SB 398 By the Committees on Appropriations; and Transportation; and Senator Hooper 576-03554-22 2022398c2 1 A bill to be entitled 2 An act relating to transportation projects; amending 3 s. 206.46, F.S.; revising the requirement for the 4 annual commitment of State Transportation Trust Fund 5 revenues for public transportation projects by the 6 Department of Transportation; amending s. 337.025, 7 F.S.; providing that the departments program for 8 innovative transportation projects may include 9 progressive design-build contracts; authorizing the 10 department to enter into a progressive design-build 11 contract if it makes a certain determination; 12 providing procedures and requirements for progressive 13 design-build contracts; revising contracts exempt from 14 a specified annual monetary cap on contracts; amending 15 s. 337.11, F.S.; revising the departments authority 16 relating to design-build contracts; amending s. 17 337.1101, F.S.; revising the calculation of a certain 18 settlement paid to a nonselected responsive bidder 19 which requires the department to maintain certain 20 records and provide certain notices to the Legislature 21 and Attorney General; amending s. 337.14, F.S.; 22 revising a dollar limit of proposed budget estimates 23 of construction contracts for which an applying 24 contractor may submit certain financial statements; 25 revising procedures relating to certificates of 26 qualification issued by the department to construction 27 contractors seeking certification to bid on certain 28 contracts; exempting progressive design-build 29 prequalifications from a certain restriction on 30 contractors and their affiliates; amending s. 337.168, 31 F.S.; deleting a public records exemption for certain 32 documents revealing the identity of a potential 33 bidder; providing an effective date. 34 35 Be It Enacted by the Legislature of the State of Florida: 36 37 Section 1.Subsection (3) of section 206.46, Florida 38 Statutes, is amended to read: 39 206.46State Transportation Trust Fund. 40 (3)Unless otherwise specified in the General 41 Appropriations Act, each fiscal year, at least a minimum of 15 42 percent but not more than 25 percent of all state revenues 43 deposited into the State Transportation Trust Fund, excluding 44 state revenues used for matching federal grants, shall be 45 committed annually by the department for public transportation 46 projects in accordance with chapter 311, ss. 332.003-332.007, 47 chapter 341, and chapter 343. 48 Section 2.Section 337.025, Florida Statutes, is amended to 49 read: 50 337.025Innovative transportation projects; department to 51 establish program. 52 (1)The department may establish a program for 53 transportation projects demonstrating innovative techniques of 54 highway and bridge design, construction, maintenance, and 55 finance which have the intended effect of measuring resiliency 56 and structural integrity and controlling time and cost increases 57 on construction projects. Such techniques may include, but are 58 not limited to, state-of-the-art technology for pavement, 59 safety, and other aspects of highway and bridge design, 60 construction, and maintenance; innovative bidding and financing 61 techniques; progressive design-build contracts as specified in 62 subsection (2); accelerated construction procedures; and those 63 techniques that have the potential to reduce project life cycle 64 costs. To the maximum extent practical, the department must use 65 the existing process to award and administer construction and 66 maintenance contracts. When specific innovative techniques are 67 to be used, the department is not required to adhere to those 68 provisions of law that would prevent, preclude, or in any way 69 prohibit the department from using the innovative technique. 70 However, before using an innovative technique that is 71 inconsistent with another provision of law, the department must 72 document in writing the need for the exception and identify what 73 benefits the traveling public and the affected community are 74 anticipated to receive. The department may enter into no more 75 than $120 million in contracts awarded annually for the purposes 76 authorized by this section. 77 (2)If the department determines that it is in the best 78 interests of the public, the department may combine the design 79 and construction phases of a project into a single contract and 80 select the design-build firm in the early stages of a project to 81 ensure that the design-build firm is part of the collaboration 82 and development of the design as part of a step-by-step 83 progression through construction. Such contract is referred to 84 as a progressive design-build contract. For progressive design 85 build contracts, the selection and award processes must include 86 a two-phase process. For phase one, the department shall 87 competitively award the contract to a design-build firm based 88 upon qualifications. For phase two, the design-build firm shall 89 competitively bid construction trade subcontractor packages and, 90 based upon these bids, negotiate with the department a fixed 91 firm price or guaranteed maximum price that meets the project 92 budget and scope as advertised in the request for 93 qualifications. 94 (3)The annual cap on contracts provided in subsection (1) 95 does not apply to: 96 (a)Turnpike enterprise projects. 97 (b)Progressive design-build contracts for complex, high 98 risk projects with a minimum contract value of $400 million Low 99 bid design-build milling and resurfacing contracts. 100 Section 3.Paragraph (a) of subsection (7) of section 101 337.11, Florida Statutes, is amended to read: 102 337.11Contracting authority of department; bids; emergency 103 repairs, supplemental agreements, and change orders; combined 104 design and construction contracts; progress payments; records; 105 requirements of vehicle registration. 106 (7)(a)If the department determines that it is in the best 107 interests of the public, the department may combine the design 108 and construction phases of a building, a major bridge, a limited 109 access facility, or a rail corridor project into a single 110 contract. Such contract is referred to as a design-build 111 contract. Design-build contracts may be advertised and awarded 112 notwithstanding the requirements of paragraph (3)(c). However, 113 construction activities may not begin on any portion of such 114 projects for which the department has not yet obtained title to 115 the necessary rights-of-way and easements for the construction 116 of that portion of the project has vested in the state or a 117 local governmental entity and all railroad crossing and utility 118 agreements have been executed. Title to rights-of-way shall be 119 deemed to have vested in the state when the title has been 120 dedicated to the public or acquired by prescription. 121 Section 4.Subsection (1) of section 337.1101, Florida 122 Statutes, is amended to read: 123 337.1101Contracting and procurement authority of the 124 department; settlements; notification required. 125 (1)When the department, or any entity or enterprise within 126 the department, determines that it is in the best interest of 127 the public to resolve a protest filed in accordance with s. 128 120.57(3) of the award of a contract being procured pursuant to 129 s. 337.11 or related to the purchase of personal property or 130 contractual services being procured pursuant to s. 287.057, 131 through a settlement that requires the department to pay a 132 nonselected responsive bidder a total sum of $1 million or more, 133 including any amount paid pursuant to s. 334.049, any amount 134 paid pursuant to s. 337.11(8) which is not included in the 135 departments work program approved by the Legislature as part of 136 the General Appropriations Act, or any amount paid pursuant to 137 any other law, the department must: 138 (a)Document in a written memorandum by the secretary the 139 specific reasons that such settlement and payment to a 140 nonselected responsive bidder is in the best interest of the 141 state. The written memorandum must be included and maintained in 142 the departments permanent files concerning the procurement and 143 must include: 144 1.A description of the property rights, patent rights, 145 copyrights, trademarks, or the engineering design or other 146 design work that the department will acquire or retain as a 147 result of such settlement; and 148 2.The specific appropriation in the existing General 149 Appropriations Act which the department intends to use to 150 provide such payment. 151 (b)Provide prior written notification to the President of 152 the Senate, the Speaker of the House of Representatives, the 153 Senate and House of Representatives minority leaders, the chair 154 and vice chair of the Legislative Budget Commission, and the 155 Attorney General at least 5 business days, or as soon thereafter 156 as practicable, before the department makes the settlement 157 agreement final. Such written notification must include the 158 written memorandum required pursuant to paragraph (a). 159 (c)Provide, at the time settlement discussions regarding 160 any such payment have begun in earnest, written notification of 161 such discussions to the President of the Senate, the Speaker of 162 the House of Representatives, the Senate and House of 163 Representatives minority leaders, the chair and vice chair of 164 the Legislative Budget Commission, and the Attorney General. 165 Section 5.Subsections (1), (4), and (7) of section 337.14, 166 Florida Statutes, are amended to read: 167 337.14Application for qualification; certificate of 168 qualification; restrictions; request for hearing. 169 (1)Any contractor desiring to bid for the performance of 170 any construction contract in excess of $250,000 which the 171 department proposes to let must first be certified by the 172 department as qualified pursuant to this section and rules of 173 the department. The rules of the department must address the 174 qualification of contractors to bid on construction contracts in 175 excess of $250,000 and must include requirements with respect to 176 the equipment, past record, experience, financial resources, and 177 organizational personnel of the applying contractor which are 178 necessary to perform the specific class of work for which the 179 contractor seeks certification. Any contractor who desires to 180 bid on contracts in excess of $50 million and who is not 181 qualified and in good standing with the department as of January 182 1, 2019, must first be certified by the department as qualified 183 and must have satisfactorily completed two projects, each in 184 excess of $15 million, for the department or for any other state 185 department of transportation. The department may limit the 186 dollar amount of any contract upon which a contractor is 187 qualified to bid or the aggregate total dollar volume of 188 contracts such contractor is allowed to have under contract at 189 any one time. Each applying contractor seeking qualification to 190 bid on construction contracts in excess of $250,000 shall 191 furnish the department a statement under oath, on such forms as 192 the department may prescribe, setting forth detailed information 193 as required on the application. Each application for 194 certification must be accompanied by audited, certified 195 financial statements prepared in accordance with generally 196 accepted accounting principles and auditing standards by a 197 certified public accountant licensed in this state or another 198 state. The audited, certified financial statements must be for 199 the applying contractor and must have been prepared within the 200 immediately preceding 12 months. The department may not consider 201 any financial information of the parent entity of the applying 202 contractor, if any. The department may not certify as qualified 203 any applying contractor who fails to submit the audited, 204 certified financial statements required by this subsection. If 205 the application or the annual financial statement shows the 206 financial condition of the applying contractor more than 4 207 months before the date on which the application is received by 208 the department, the applicant must also submit interim audited, 209 certified financial statements prepared in accordance with 210 generally accepted accounting principles and auditing standards 211 by a certified public accountant licensed in this state or 212 another state. The interim financial statements must cover the 213 period from the end date of the annual statement and must show 214 the financial condition of the applying contractor no more than 215 4 months before the date that the interim financial statements 216 are received by the department. However, upon the request of the 217 applying contractor, an application and accompanying annual or 218 interim financial statement received by the department within 15 219 days after either 4-month period under this subsection shall be 220 considered timely. An applying contractor desiring to bid 221 exclusively for the performance of construction contracts with 222 proposed budget estimates of less than $2 $1 million may submit 223 reviewed annual or reviewed interim financial statements 224 prepared by a certified public accountant. The information 225 required by this subsection is confidential and exempt from s. 226 119.07(1). The department shall act upon the application for 227 qualification within 30 days after the department determines 228 that the application is complete. The department may waive the 229 requirements of this subsection for projects having a contract 230 price of $500,000 or less if the department determines that the 231 project is of a noncritical nature and the waiver will not 232 endanger public health, safety, or property. 233 (4)If the applicant is found to possess the prescribed 234 qualifications, the department shall issue to him or her a 235 certificate of qualification that, unless thereafter revoked by 236 the department for good cause, will be valid for a period of 18 237 months after the date of the applicants financial statement or 238 such shorter period as the department prescribes. Submission of 239 an application does and subsequent approval do not affect 240 expiration of the certificate of qualification, the ability 241 factor of the applicant, or the maximum capacity rating of the 242 applicant. An applicant may submit a written request with a 243 timely submitted application to keep an existing certificate of 244 qualification in place until the expiration date. If the request 245 is approved by the department, the current maximum capacity 246 rating of the applicant must remain in place until expiration of 247 the current certificate of qualification. If the department 248 finds that an application is incomplete or contains inadequate 249 information or information that cannot be verified, the 250 department may request in writing that the applicant provide the 251 necessary information to complete the application or provide the 252 source from which any information in the application may be 253 verified. If the applicant fails to comply with the initial 254 written request within a reasonable period of time as specified 255 therein, the department shall request the information a second 256 time. If the applicant fails to comply with the second request 257 within a reasonable period of time as specified therein, the 258 application shall be denied. 259 (7)A contractor as defined in s. 337.165(1)(d) or his or 260 her affiliate as defined in s. 337.165(1)(a) qualified with 261 the department under this section may not also qualify under s. 262 287.055 or s. 337.105 to provide testing services, construction, 263 engineering, and inspection services to the department. This 264 limitation does not apply to any design-build, including 265 progressive design-build, prequalification under s. 337.11(7) 266 and does not apply when the department otherwise determines by 267 written order entered at least 30 days before advertisement that 268 the limitation is not in the best interests of the public with 269 respect to a particular contract for testing services, 270 construction, engineering, and inspection services. This 271 subsection does not authorize a contractor to provide testing 272 services, or provide construction, engineering, and inspection 273 services, to the department in connection with a construction 274 contract under which the contractor is performing any work. 275 Notwithstanding any other provision of law to the contrary, for 276 a project that is wholly or partially funded by the department 277 and administered by a local governmental entity, except for a 278 seaport listed in s. 311.09 or an airport as defined in s. 279 332.004, the entity performing design and construction 280 engineering and inspection services may not be the same entity. 281 Section 6.Section 337.168, Florida Statutes, is amended to 282 read: 283 337.168Confidentiality of official estimates, identities 284 of potential bidders, and bid analysis and monitoring system. 285 (1)A document or electronic file revealing the official 286 cost estimate of the department of a project is confidential and 287 exempt from the provisions of s. 119.07(1) until the contract 288 for the project has been executed or until the project is no 289 longer under active consideration. 290 (2)A document that reveals the identity of a person who 291 has requested or obtained a bid package, plan, or specifications 292 pertaining to any project to be let by the department is 293 confidential and exempt from the provisions of s. 119.07(1) for 294 the period that begins 2 working days before the deadline for 295 obtaining bid packages, plans, or specifications and ends with 296 the letting of the bid. A document that reveals the identity of 297 a person who has requested or obtained a bid package, plan, or 298 specifications pertaining to any project to be let by the 299 department before the 2 working days before the deadline for 300 obtaining bid packages, plans, or specifications remains a 301 public record subject to s. 119.07(1). 302 (3)The bid analysis and monitoring system of the 303 department is confidential and exempt from the provisions of s. 304 119.07(1). This exemption applies to all system documentation, 305 input, computer processes and programs, electronic data files, 306 and output, but does not apply to the actual source documents, 307 unless otherwise exempted under other provisions of law. 308 Section 7.This act shall take effect July 1, 2022.