The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Appropriations Subcommittee on Transportation, Tourism, and Economic
Development
BILL: PSC/CS/SB 398 (353234)
INTRODUCER: Appropriations Subcommittee on Transportation, Tourism and Economic Development;
Transportation Committee; and Senator Hooper
SUBJECT: Transportation Projects
DATE: February 4, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Price Vickers TR Fav/CS
2. McAuliffe/Price Hrdlicka ATD Recommend: Fav/CS
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
PCS/CS/SB 398 revises the current requirement for an annual minimum commitment by the
Florida Department of Transportation (FDOT) of at least 15 percent of revenues deposited into
State Transportation Trust Fund (STTF) for specified public transportation projects, by imposing
a maximum commitment of no more than 25 percent of such revenues, excluding state revenues
used for matching federal grants, unless otherwise specified in the General Appropriations Act.
The bill also clarifies the FDOT’s authority to engage in “progressive” design-build contracting
as an innovative technique of highway and bridge design and construction, exempts certain
progressive design-build contracts from an existing cap on innovative contracts, and removes a
limitation on design-build contracting to certain types of projects.
The bill clarifies that stipends paid by the FDOT to non-selected design-build firms that have
submitted responsive proposals for construction contracts contained in the FDOT’s legislatively
approved work program are not subject to existing documentation and notification requirements
for stipend payments made by the FDOT to resolve a bid protest through a settlement.
Additionally, the bill revises authorization for an applying contractor who desires to bid
exclusively on construction contracts with proposed budget estimates of $2 million (rather than
$1 million) to submit reviewed (rather than audited, certified) annual or reviewed interim
financial statements prepared by a certified public accountant. The bill also authorizes an
REVISED: BILL: PSC/CS/SB 398 (353234) Page 2
applicant for an FDOT contractor certificate of qualification to submit with a timely submitted
application a request to keep an existing certificate, with the current maximum capacity rating, in
place until the expiration date.
Further, the bill repeals a current provision of law providing temporary confidential and exempt
status from public records requirements for a document that reveals the identity of a person who
has requested or obtained a bid package, plan, or specifications pertaining to any project to be let
by the FDOT.
The fiscal impact of the bill is indeterminate. Please see the “Fiscal Impact Statement” for
details.
The bill takes effect July 1, 2022.
II. Present Situation:
For ease of organization and readability, the present situation is discussed below in conjunction
with the effect of the proposed changes.
III. Effect of Proposed Changes:
Public Transportation Funding from the State Transportation Trust Fund (Section 1)
Present Situation
Section 206.46(1), F.S., creates the STTF, and all moneys in the trust fund must be used for
transportation purposes, as provided by law, under the direction of the FDOT. The FDOT is
required to annually commit from the STTF a minimum of 15 percent of all state revenues
deposited into the trust fund for public transportation projects in accordance with ch 311, F.S.
(relating to seaport programs and facilities), ss. 332.003-332.007, F.S. (relating to airports),
ch. 341, F.S. (relating to public transit), and ch. 343, F.S. (relating to regional transportation).
Projects eligible for funding under ch. 311, F.S., include, for example, transportation facilities
(e.g., roads) within the jurisdiction of a port, under the Florida Seaport Transportation and
Economic Development Program.
1
Sections 332.003-332.007, F.S., make up the Florida Airport
Development and Assistance Act, which provides funding for projects at public airports such as
airport master planning,
2
airport development,
3
and airport discretionary capacity
improvements.
4
1
While bus service to and from a port could qualify as an eligible project, a variety of other projects are also eligible, such as
dredging or deepening of channels, turning basins, or harbors; acquisition of land to be used for port purposes; and
construction of wharves, docks, and cruise terminals. See s. 311.07(3)(b), F.S., for a full list of projects eligible for grant
funding under the Florida Seaport Transportation and Economic Development Program.
2
Defined to mean “the development, for planning purposes, of information and guidance to determine the extent, type, and
nature of development needed at a specific airport.” Section 332.004(3), F.S.
3
Meaning “any activity associated with the design, construction, purchase, improvements, or repair of a public-use airport or
portion thereof…” Section 332.004(4), F.S.
4
Defined as “capacity improvements which are consistent, to the maximum extent feasible, with the approved local
government comprehensive plans of the units of local government in which the airport is located and which enhance
intercontinental capacity at [specified] airports…” Section 332.004(5), F.S. BILL: PSC/CS/SB 398 (353234) Page 3
Chapter 341, F.S., relating to “public transit” (the transporting of people by conveyances, or a
system of conveyances, traveling on land or water, local or regional in nature, and available for
use by the public, including paratransit)
5
could include projects such as a public transit capital
project,
6
a commuter assistance project,
7
a transit corridor project,
8
or an intercity bus service
project.
9
Chapter 343, F.S., relating to regional transportation, establishes the South Florida Regional
Transportation Authority, the Central Florida Regional Transportation Authority, and the Tampa
Bay Regional Transit Authority. As an example of currently authorized uses of public
transportation funding in the context of regional transportation, s. 343.58(4), F.S., requires
specified amounts to be transferred from the STTF to the South Florida Regional Transportation
Authority, which operates Tri-Rail, a passenger rail service in Broward, Palm Beach, and Miami-
Dade Counties. As another example, s. 341.303, F.S., authorizes specified funding from the
STTF for SunRail, a passenger rail system currently operating in Volusia, Seminole, Orange, and
Osceola counties.
Various projects under these programs may be eligible for use of state revenues in the STTF to
match available federal funds.
The 15-percent public transportation requirement does not apply to certain STTF revenues.
Current law contains a number of provisions exempting certain revenue from the 15-percent
public transportation requirement, such as those from rental car surcharges under
s. 212.0606, F.S.; from initial registration fees under s. 320.072, F.S.; and from local option fuel
taxes under s. 215.211, F.S. The FDOT advises that while state revenues in Fiscal Year 2022-
2023 are projected at over $4.7 billion, more than $1.4 billion (30 percent) of that revenue is
exempt.
10
In addition, while some revenue streams are exempt from the 15-percent requirement, a
requirement for use of a given revenue stream for public transportation may still be present. For
example, s. 201.15, F.S., requires 10 percent of documentary tax proceeds deposited into the
STTF to be used for the New Starts Program and s. 339.0801, F.S., requires $10 million annually
from tag and title fees to be used for the Seaport Investment Program.
5
Section 341.031(6), F.S.
6
Defined to mean “a project undertaken by a public agency to provide public transit to its constituency, and is limited to
acquisition, design, construction, reconstruction, or improvement of a governmentally owned or operated transit system.”
Section 341.031(7), F.S.
7
Meaning “financial and technical assistance by the department to promote alternatives to the use of automobiles by a single
commuter.” The term includes ridesharing, transportation demand management, and transportation management association
projects. See s. 341.031(9), F.S.
8
Defined to mean “a project that is undertaken by a public agency and designed to relieve congestion and improve capacity
within an identified transportation corridor by increasing people-carrying capacity of the system through the use and
facilitated movement of high-occupancy conveyances.” See s. 341.031(10), F.S., for additional definitional requirements.
9
Defined as “regularly scheduled bus service for the general public which operates with limited stops over fixed routes
connecting two or more urban areas not in close proximity…” See s. 341.031(11), F.S., for additional definitional
requirements.
10
See FDOT, 2022 Agency Legislative Bill Analysis: SB 398, p. 3 (on file in the Senate Transportation Committee). BILL: PSC/CS/SB 398 (353234) Page 4
According to FDOT, “[i]t is important to note that some of the state funds allocated for public
transportation are allocated to comply with the 15% requirement specified in s. 206.46(3), F.S.,
while other state funds are allocated to comply with statutory use requirements for documentary
stamp taxes, tag and title fees, and initial registration fees.”
11
The FDOT reports public transportation programming as of July 1, 2021 (in millions) as
follows:
12
State Funds Programmed for Public Transportation
FY
Total Public
Transportation
Part of the
15-Percent
Requirement
Percent Programmed
Subject to the
15-Percent
Requirement
2016-2017 $648.0 $487.6 16.8
2017-2018 $783.6 $530.3 17.7
2018-2019 $878.9 $598.8 20.0
2019-2020 $844.0 $568.8 19.4
2020-2021 $852.0 $545.0 18.4
2021-2022 $1,060.2 $568.0 18.0
2022-2023 $893.7 $619.6 18.9
2023-2024 $862.9 $568.9 16.8
2024-2025 $770.8 $551.9 15.9
2025-2026 $877.1 $587.3 16.6
Effect of Proposed Changes
Section 1 of the bill amends s. 206.46(3), F.S., to provide a cap on the amount of state revenues
deposited into the STTF that can be used for public transportation projects of 25 percent. Unless
otherwise specified in the General Appropriations Act, the FDOT must commit at least 15
percent, but no more than 25 percent, of state revenues for such projects. The calculation for
purposes of determining the allowable funding range for the specified projects would not include
the amount of state revenues used for federal grant matching.
Design-Build, Progressive Design-Build, and Innovative Contracting (Sections 2 and 3)
Present Situation
The FDOT is generally authorized to enter into construction and maintenance contracts and must
ensure that all project descriptions, including design plans, “are complete, accurate, and up to
date prior to the advertisement for bids on such projects.”
13
11
FDOT, 2022 Agency Legislative Bill Analysis: SB 398, p. 3
12
Id.
13
Section 337.11(1) and (2), F.S. BILL: PSC/CS/SB 398 (353234) Page 5
Current law also authorizes the FDOT, if it determines that doing so is in the public interest, to
combine the design and construction phases of a building, a major bridge, a limited access
facility, or a rail corridor project into a single contract, referred to as a “design-build” contract.
14
The FDOT is also authorized to establish a program for transportation projects that demonstrate
innovative techniques of highway and bridge design, construction, maintenance, and finance.
The innovations must intend to measure resiliency and structural integrity and control time and
cost increases on construction projects. These techniques may include state-of-the-art technology
for pavement, safety, and other aspects of highway and bridge design, construction, and
maintenance; innovative bidding and financing techniques; accelerated construction procedures;
and techniques that have the potential to reduce project life cycle costs.
15
To the maximum extent practical, the FDOT must use existing processes to award and
administer construction and maintenance contracts. If the FDOT intends to use specific
innovative techniques, it must document the need for any exceptions to current law that would
otherwise prohibit use of the techniques.
The FDOT is limited to $120 million annually for the purposes of contracting for innovative
transportation projects. However, the annual cap currently does not apply to:
Turnpike Enterprise projects, and
Low-bid design-build milling and resurfacing contracts.
16
According to the Design-Build Institute of America (DBIA), design-build projects enable the
project owner to manage only one contract, with the designer and contractor working together
from the beginning and providing consensus project recommendations to fit the owner’s
schedule and budget. The entire team addresses any necessary changes, which leads “to
collaborative problem-solving and innovation....” This method of project delivery, the DBIA
asserts, creates an inherent “culture of collaboration.”
17
As described by the DBIA, the
“progressive” type of design-build contract “uses a qualifications-based or best value selection,
followed by a process whereby the owner then ‘progresses’ towards a design and contract price
with the team (thus the term ‘Progressive’).”
18
The Florida Transportation Builders’ Association (FTBA) advises that traditional design-build
contracting has produced nearly two decades of successful projects and that progressive design-
build contracting represents an evolution from traditional design-build, allowing better allocation
and management of unforeseen conditions and risks
19
encountered during the design of the
project. Once the design-build firm is selected based on qualifications, including past
performance, the firm then works collaboratively with the FDOT to “progress or advance” the
14
Section 337.11(7)(a), F.S.
15
Section 337.025(1), F.S.
16
Section 337.025(2), F.S.
17
See DBIA, What is Design-Build, available at https://dbia.org/what-is-design-build/ (last visited December 15, 2021).
18
See DBIA, Progressive Design-Build, Design-Build Procured with a Progressive Design and Price, at p. 3, available at
https://dbia.org/wp-content/uploads/2018/05/Primer-Progressive-Design-Build.pdf (last visited December 15, 2021).
19
E.g., variable and unsuitable soils beneath a roadway or bridge foundations, utility relocation issues, and other unforeseen
conditions. BILL: PSC/CS/SB 398 (353234) Page 6
design until the design contains sufficient detail to competitively bid the work.
20
As opposed to
the FDOT’s general contracting authority, under which design plans must be complete, accurate,
and up to date prior to advertising for bids, pricing in a progressive design-build contract is
delayed until design is closer to completion.
The FTBA further advises that progressive design-build contracting is already being used by the
Greater Orlando Aviation Authority and the Tampa International Airport Authority.
21
According
to the DBIA, at least two other states are currently authorized to engage in some form of
progressive design-build contracting.
22
Based on a review of the FDOT’s Work Program Instructions for development of the Tentative
Work Program for Fiscal Years 2022-2023 – 2026-2027, the FDOT, if not already in use under
its existing design-build authority, appears to be contemplating the use of “progressive” design-
build contracts under its authorization to undertake transportation projects that demonstrate
innovative techniques of highway and bridge design, construction, maintenance, and finance.
23
Such contracting under current law would be subject to the $120 million statutory cap.
Effect of Proposed Changes
Section 2 of the bill amends s. 337.025, F.S., relating to the FDOT’s authority to undertake
innovative transportation projects, to expressly authorize the FDOT to use progressive design-
build contacts for such projects.
The bill authorizes the FDOT, if it determines that doing so is in the best interests of the public,
to combine the design and construction phases of a project into a single contract and select the
design-build firm in the early stages of a project to ensure that the firm is part of the
collaboration and development of the design as part of a step-by-step progression through
construction. The bill refers to such a contract as a progressive design-build contract.
The bill requires the selection and award processes for a progressive design-build contract to
involve a two-phase process. In the first phase, the FDOT must competitively award the contract
to a design-build firm based upon the firm’s qualifications. In phase two, the selected firm must
competitively bid construction trade subcontractor packages and, based upon these bids,
negotiate with the FDOT for a fixed price or a guaranteed maximum price that meets the project
budget and scope as advertised in the request for qualifications.
In addition, the bill exempts progressive design-build contracts for complex, high-risk projects
with a minimum contract value of $400 million from the annual $120 million cap on innovative
contracting.
20
See FTBA email to Transportation Committee staff, November 30, 2021 (on file in the Senate Transportation Committee).
21
Id.
22
See DBIA, 2021 State Statute Report, available at https://dbia.org/wp-content/uploads/2021/01/2021-DBIA-State-Statute-
Report.pdf (last visited December 15, 2021).
23
See FDOT, Work Program Instructions, FY 22/23-26/27, September 10, 2021, available at
https://fdotewp1.dot.state.fl.us/fmsupportapps/Documents/development/WorkProgramInstructions.pdf (last visited
December 15, 2021). BILL: PSC/CS/SB 398 (353234) Page 7
Section 3 of the bill amends s. 337.11(7), F.S., relating to the FDOT’s authority to engage in
design-build contracting, to allow the FDOT to combine the design and construction phases of
any project into a single contract, not just for a building, a major bridge, a limited access facility,
or a rail corridor project.
Though the bill repeals the exemption for low-bid design-build milling and resurfacing contracts
from the $120 million cap on innovative transportation project, by removing the limitation on
design-build contracting to the design and construction phases of a building, a major bridge, a
limited access facility, or a rail corridor project, “traditional” low-bid design-build milling and
resurfacing contracts would not be subject to the cap. The FDOT would be authorized to use
“traditional” design-build contracting for any type of project. These “traditional” (or
non-innovative) contracts would not be included in the $120 million annual cap on innovative
contracting, as is the case under current law for certain projects as discussed above.
Under the bill, the FDOT would be authorized to use progressive design-build contracting as an
innovative contracting technique, subject to the $120 million annual cap. The annual cap on
innovative contracting would continue to be inapplicable to Turnpike Enterprise projects and
would be inapplicable to progressive design-build contracts for complex, high-risk projects with
a minimum contract value of $400 million.
FDOT Contracting and Procurement Authority/Settlements and Stipends (Section 4)
Present Situation
When the FDOT determines that doing so is in the best interest of the public and intends,
through a settlement, to pay a non-selected responsive bidder a total sum of $1 million or more,
including any amount paid pursuant to s. 334.049, F.S. (patents, copyrights, trademarks, and
trade secrets), s. 337.11(8), F.S. (stipends to non-selected, responsive design-build firms), or any
other law, current law requires the FDOT to:
24
Document in a written memorandum by the FDOT secretary the specific reasons that such
settlement and payment to a non-selected responsive bidder is in the best interest of the state.
The written memorandum must be included and maintained in the permanent procurement
files of the FDOT and must include:
o A description of the property rights, patent rights, copyrights, trademarks, or the
engineering design or other design work that the department will acquire or retain as a
result of such settlement; and
o The specific appropriation in the existing General Appropriations Act which the
department intends to use to provide such payment.
Provide prior written notification to the President of the Senate, the Speaker of the House of
Representatives, the Senate and House of Representatives minority leaders, the chair and vice
chair of the Legislative Budget Commission, and the Attorney General at least 5 business
days, or as soon thereafter as practicable, before the FDOT makes the settlement agreement
final. Such written notification must include the written memorandum described above.
Provide written notification of such discussions to the same individuals at the time settlement
discussions regarding any such payment have begun in earnest.
24
Section 337.1101(1), F.S. BILL: PSC/CS/SB 398 (353234) Page 8
The FDOT is separately authorized, when the FDOT determines that doing so is in the best
interest of the public, to pay a stipend to non-selected design-build firms that have submitted
responsive proposals to the FDOT for construction contracts.
25
These projects are included in the
FDOT’s legislatively approved work program. The decision and amount of a stipend must be
based on the FDOT’s analysis of the estimated proposal development costs and the anticipated
degree of engineering design during the procurement process. The FDOT retains the right to use
the designs in the proposals from responsive non-selected design-build firms that accept a
stipend.
A review of the FDOT’s work program instructions suggests that the amount of a stipend to be
paid is noted in the request for proposals for a design-build project. The FDOT enters into a
stipend agreement with each firm after the proposals are “shortlisted,”
26
and each agreement
states that the firm that receives the project contract award will not get the stipend. The non-
selected firms then submit an invoice within two weeks after the project contract is executed and
are paid the stipend amount noted in the request for proposals.
27
While the FDOT might settle a bid protest through payment of a stipend, in contrast to any
amounts paid by the FDOT that would trigger the documentation and notice requirements for a
settlement, stipends paid by the FDOT pursuant to its separate authority are authorized payments
arrived at by contract during the procurement process.
Effect of Proposed Changes
Section 4 of the bill amends s. 337.1101(1), F.S., to clarify that stipends paid by the FDOT to
non-selected design-build firms that have submitted responsive proposals for construction
contracts contained in the FDOT’s legislatively approved work program are not subject to
existing documentation and notification requirements for stipend payments made by the FDOT
to resolve a bid protest through a settlement. If the FDOT pays a stipend to settle a bid protest in
an amount that triggers the requirements, the FDOT must continue to comply with the
documentation and notification requirements.
Contractor Certificates of Qualification (Section 5)
Present Situation
Current law requires any contractor desiring to bid on any FDOT construction contract in excess
of $250,000 to first be certified by the FDOT as qualified pursuant to s. 337.14, F.S., and the
FDOT’s rules.
28
When applying to the FDOT, each application for certification must be
accompanied by the contractor’s latest annual financial statement, which must have been
completed within the last 12 months. If the application or the annual financial statement shows
the contractor’s financial condition more than four months prior to the date on which the FDOT
receives the application, the contractor must also submit an interim financial statement and an
25
Section 337.11(8), F.S.
26
A “shortlist” is a list of selected candidates from which a final choice is to be made.
27
See FDOT, Work Program Instructions FY 22/23 – 26/27, p. 370 of 847.
28
Rule Chapter 14-22, F.A.C. BILL: PSC/CS/SB 398 (353234) Page 9
updated application.
29
Each required annual or interim financial statement must be audited and
accompanied by the opinion of a certified public accountant (CPA). However, an applying
contractor who desires to bid exclusively for the performance of construction contracts with
proposed budget estimates of less than $1 million may submit reviewed annual or reviewed
interim financial statements prepared by a CPA.
30
The FDOT’s rules include requirements with respect to the equipment, past record, experience,
financial resources, and organizational personnel of the applying contractor which are necessary
to perform the specific class of work for which the contractor seeks certification. In so doing, the
FDOT verifies and evaluates whether an applicant is competent and responsible and possesses
the necessary financial resources to perform the requested work.
31
Part of the latter inquiry involves whether an applicant has the financial resources sufficient to
establish a maximum capacity rating (MCR), which is defined as the total aggregate dollar
amount of uncompleted work an applicant may have under contract at any one time as a prime
contractor and/or subcontractor, regardless of the work location and with whom the applicant
contracted.
32
According to the FDOT’s rules, the MCR is established by a formula, one element
of which is the “ability factor.” The FDOT’s rules require an applicant’s maximum capacity
rating to be reduced by the total value of their current uncompleted work, producing the
applicant’s “current capacity,” or bidding capacity. Under the rule, the current capacity must be
amended immediately upon issuance of a new certificate of qualification, regardless of whether
the existing certificate has expired.
33
Currently, if an applicant for a certificate of qualification is found to possess the prescribed
qualifications, the FDOT must issue the applicant a certificate, which, unless revoked by the
FDOT for good cause, is valid for a period of 18 months after the date of the applicant’s
financial statement, or such shorter period as the FDOT prescribes. Submission of an application
does not affect expiration of the certificate and, as of July 1, 2021, does not affect the ability
factor of the applicant or the maximum capacity rating of the applicant.
34
The FTBA advises the FDOT has requested revision of the current language to address
overlapping certificates of qualification and any changes in the amount of new work that a firm
can bid, due to a revised maximum capacity rating. As an example, the FTBA describes a
potential situation in which a firm is allowed to bid on a $1 million contract under its existing
certificate of qualification and then is later found nonresponsive when a new certificate is issued
29
The interim statements must cover the period from the end date of the annual statement and must show the financial
condition of the applying contractor no more than four months prior to the date the FDOT receives the interim statement but,
upon request of the applicant, an application and accompanying annual or interim financial statement received by the FDOT
within 15 days after either four-month period is considered timely.
30
A reviewed annual or reviewed interim financial statement is less expensive than an audited, certified annual or interim
financial statement.
31
Rule 14-22.003(1), F.A.C.
32
Rule 14.22-003(1)(d) and (2), F.A.C.
33
Rule 14-22.006(1), F.A.C.
34
Section 337.14(4), F.S. See s. 10, ch. 2021-188, Laws of Fla., which added the ability factor and MCR as things not being
affected by the submission of an application. BILL: PSC/CS/SB 398 (353234) Page 10
to the firm during the time leading up to the submission of a bid, due to a revised (lower)
capacity rating.
35
Effect of Proposed Changes
Section 5 of the bill amends s. 337.14, F.S, to increase from $1 million to $2 million the
proposed budget estimate amount for triggering authorization of an applying contractor to submit
reviewed annual or reviewed interim financial statements prepared by a CPA, instead of audited,
certified statements. An applying contractor who desires to bid exclusively on construction
contracts with proposed budget estimates of $2 million or less may submit reviewed annual or
reviewed interim financial statements prepared by a CPA.
The bill also repeals the current provisions providing that submission of an application does not
affect the ability factor or the maximum capacity rating of an applicant for an FDOT certificate
of qualification. Instead, the bill authorizes an applicant to submit a written request to the FDOT
with a timely submitted application to keep an existing certificate in place until its expiration
date. If the FDOT approves the request, the applicant’s current maximum capacity rating must
remain in place until expiration of the current certification. In the absence of the FDOT’s
approval and in accordance with the FDOT’s existing rules, the current capacity must be
amended immediately upon issuance of a new certificate of qualification, regardless of whether
the existing certificate has expired. The bill also makes a conforming change to the statute.
Public Records Exemption/Confidentiality of Identities of Bidders (Section 6)
Present Situation
Section 336.168(1) and (3), F.S., establish confidential and exempt status from public records
requirements of s. 119.07(1), F.S., for:
A document or electronic file revealing the FDOT’s official cost estimate of a project until
the contract for the project has been executed or until the project is no longer under active
consideration; and
The FDOT’s bid analysis and monitoring system, including all system documentation, input,
computer processes and programs, electronic data files, and output. This does not apply to
the actual source documents, unless otherwise exempted under other provisions of law.
Section 337.168(2), F.S., currently provides that a document
36
revealing the identity of persons
who have requested or obtained bid packages, plans, or specifications pertaining to any project to
be let by the department is confidential and exempt from the provisions of s. 119.07(1), F.S., for
the period which begins two working days before the deadline for obtaining bid packages, plans,
or specifications and ends with the letting of the bid. A document that reveals the identity before
the two working days before the deadline for obtaining bid packages, plans, or specifications
remains a public record.
35
See FTBA email to Transportation Committee staff, November 30, 2021 (on file in the Senate Transportation Committee).
36
The FDOT advises that many documents submitted by contractors contain both exempt and non-exempt information.
Telephone conversation between FDOT staff and Senate Transportation Committee staff, November 24, 2021. In accordance
with s. 119.07(1)(d), F.S., the FDOT would be required to redact any information contained in a document that reveals the
identity of persons who have requested or obtained bid packages if the information is exempt under any other provision of
law. BILL: PSC/CS/SB 398 (353234) Page 11
The FDOT maintains a website that lists the identity of those who have requested or obtained bid
packages for a given project.
37
The lists contain for each person a vendor identification number,
an indication of the name of the entity that ordered the documents, and a shipping address and
phone number for each. The lists do not appear to contain any information which would be
exempt other any other provisions of law. The FDOT advises the lists are published daily, except
for during the two-day confidential period defined in current law, and a comprehensive list is
then published after the letting occurs.
38
The issue appears to relate to small contractors, who use the identities of potential bidders for the
purpose of submitting sub-contract bids to general contractors for their use in preparing bids for
FDOT projects.
39
Effect of Proposed Changes
Section 6 of the bill amends s. 337.168(2), F.S., to repeal the temporary public records
exemption for a document revealing the identity of persons who have requested or obtained bid
packages, plans, or specifications pertaining to any project to be let by the FDOT. According to
the FTBA, this revision provides full transparency as to the identity of potential bidders during
the entire procurement process.
40
Effective Date (Section 7)
The bill is effective July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None. The bill does not expand public records exemptions.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
37
See e.g., FDOT, Contractors ordering Plans and Specs by Letting Report, available at
https://fdotwp2.dot.state.fl.us/ContractProposalProcessing/CPPA and Contractors ordering Proposals by Letting Report,
available at https://fdotwp2.dot.state.fl.us/ContractProposalProcessing/CPPA (last visited November 24, 2021). Enter “guest”
for the user name and select “Sign in.”
38
See FDOT email to Transportation Committee staff, November 24, 2021 (on file in the Senate Transportation Committee).
39
Telephone conversation between FDOT staff and Senate Transportation Committee staff, November 24, 2021.
40
See FTBA email to Transportation Committee staff, November 30, 2021 (on file in the Senate Transportation Committee). BILL: PSC/CS/SB 398 (353234) Page 12
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The fiscal impact of the revisions relating to FDOT contractor certificates of qualification
is indeterminate.
Increasing the budget estimate amount for construction contracts from $1 million to
$2 million for certain contractors exclusively bidding, allowing these additional
contractors to submit reviewed financial statements should reduce the costs on these
contractors to submit bids. A reviewed annual or reviewed interim financial statement is
less expensive than an audited, certified annual or interim financial statement.
C. Government Sector Impact:
The impact on current funding levels, if any, of imposing a maximum commitment of no
more than 25 percent of state revenues in the STTF for the identified public
transportation projects, excluding those used for matching federal grants, as well as any
effect on other projects in the work program, is dependent on funding levels selected by
the FDOT within the authorized range. To the extent that funding for public
transportation projects is increased above currently programmed levels within the cap,
other projects in the work program may be impacted.
The fiscal impact of the revisions relating to design-build, progressive design-build, and
innovative contracting is indeterminate, as the number and details of any such contracts
to be undertaken by the FDOT is unknown.
The fiscal impact of the revisions relating to FDOT contractor certificates of
qualification, if any, is indeterminate. The FDOT may incur expenses associated with
revising Rule Chapter 14-22 of the Florida Administrative Code relating to contractor
qualification. These expenses, if rule revision is necessary, are expected to be absorbed
within existing resources.
The FDOT may experience an indeterminate, but likely insignificant negative fiscal
impact associated with responding to requests for documents that reveal the identity of a
potential bidder on a transportation project, including, if necessary, redacting any
information contained in a document which is made exempt under any other provisions
of law, for a two-day period during which such a record would have been exempt under
current law. BILL: PSC/CS/SB 398 (353234) Page 13
VI. Technical Deficiencies:
None.
VII. Related Issues:
The FDOT has raised concerns regarding the 25-percent public transportation funding cap
imposed by the bill, relating to decreased long-term flexibility in preparing the work program.
41
Current law requires the FDOT to adopt by rule procedures for administering design-build
contracts and specifies what must be minimally included in the procedures.
42
As drafted, the bill
is unclear as to whether the procedures adopted to administer design-build contracts also apply to
progressive-design build contracts. Failure to adopt by rule any procedures applicable to
progressive design-build contracts could result in a challenge under the Administrative
Procedures Act.
43
An amendment to existing s. 377.11(7)((b), F.S., to expressly include
progressive design-build contracts in the rulemaking requirement may be in order.
The FDOT has also expressed concerns regarding the repeal of the temporary public records
exemption for the identity of persons who have requested bid packages, relating to a potential
negative impact on the procurement process.
44
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 206.46, 337.025,
337.11, 337.1101, 337.14, and 337.168.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
Recommend CS by Appropriations Subcommittee on Transportation, Tourism and
Economic Development on February 2, 2022:
The committee substitute:
Increases the minimum contract value of certain progressive design-build contracts
that are exempt from the annual cap on innovative transportation projects, from
$250 million contract value to a $400 contract value.
Moves the amendatory provisions allowing the FDOT to enter into progressive
design-build contracts from s. 377.11, F.S., to being amended into s. 337.025, F.S.
Clarifies that stipends paid by the FDOT to non-selected design-build firms that have
submitted responsive proposals for construction contracts contained in the FDOT’s
legislatively-approved work program are not subject to existing documentation and
notification requirements for stipend payments made by the FDOT to resolve a bid
protest through a settlement.
41
FDOT, 2022 Agency Legislative Bill Analysis: SB 398, pp. 8-9.
42
Section 337.11(7)(b), F.S.
43
See s. 120.56(4), F.S.
44
FDOT, 2022 Agency Legislative Bill Analysis: SB 398, p. 6. BILL: PSC/CS/SB 398 (353234) Page 14
Increases from $1 million to $2 million the proposed budget estimate amount for
triggering authorization of an applying contractor to submit reviewed annual or
reviewed interim financial statements prepared by a CPA, instead of audited, certified
statements.
CS by Transportation on December 1, 2021:
The committee substitute:
Modifies the minimum 15-percent and maximum 25-percent commitment of state
revenues in the STTF for the specified public transportation projects if otherwise
provided in the General Appropriations Act.
Includes progressive design-build contracting as an authorized innovative technique
of highway and bridge design and construction projects, excludes certain progressive
design-build contracts from an annual $120 million cap on innovative transportation
projects, and removes inapplicability of the cap to low-bid design-build milling and
resurfacing contracts.
Removes a limitation on the FDOT’s authority to combine the design and
construction phases (a “design-build” project) to a building, a major bridge, a limited
access facility, or a rail corridor project, authorizing the FDOT to combine the design
and construction phases of any type of project into a single design-build contract.
Authorizes the FDOT, if it determines that doing so is in the best interests of the
public, to use progressive design-build contracting, using a specified two-phase
process, the first involving the design-build firm’s qualifications and, the second
involving negotiations on price.
Removes the maximum capacity rating of an applicant for a contractor certificate of
qualification as factors that do not affect the expiration of a certificate, authorizes an
applicant to submit a request to keep an existing certificate of qualification in place
until the expiration date and, if approved by the FDOT, keep the current maximum
capacity rating of the applicant in place until expiration of the current certificate of
qualification.
Removes the entire subsection of current law containing the temporary public records
exemption for a document revealing the identity of persons who have requested or
obtained bid packages, plans, or specifications pertaining to any project to be let by
the FDOT, instead of leaving unnecessary language deeming such a document to be a
public record.
Removes from the bill authorization of the FDOT to use moneys in the STTF to pay
for work zone speed enforcement by entering into an agreement with the FHP.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.