These rules address Procedures for Construction Contract Bidding, Award, Negotiation and Changes and: amend the definitions of terms for 60D-5; remove unused, duplicative or otherwise unnecessary definitions; increases increments of contract dollar ...

 

DEPARTMENT OF MANAGEMENT SERVICES

Division of Building Construction

RULE NOS.:RULE TITLES:

60D-5.002Definitions

60D-5.004Bidder's Qualification Requirements and Procedures

60D-5.0041Waiver of Bond Requirements

60D-5.007Determination of Successful Bidder

60D-5.0071Rejection of Bid(s)

60D-5.0073Contract Levels, Limits of Public Advertising, Negotiation and Bidding

60D-5.008Qualifications-Based Selection; Contractor Selection and Negotiation Procedures for Projects Within Level Four and Level Five Contracts

60D-5.0082Competitive Selection

60D-5.0091Competitive Negotiation

PURPOSE AND EFFECT: These rules address Procedures for Construction Contract Bidding, Award, Negotiation and Changes and: amend the definitions of terms for Chapter 60D-5, F.A.C.; remove unused, duplicative or otherwise unnecessary definitions; increases increments of contract dollar values based on estimated cost of the contract to align with inflation; removes superfluous language and modifies criteria to reflect preferred practices; make technical amendments; remove antiquated practices and provides flexibility in the selection process of members of the Selection Committee, required for competitive selection.

SUMMARY: These rules amend the definitions of terms for Chapter 60D-5, F.A.C.; remove unused, duplicative or otherwise unnecessary definitions; increases increments of contract dollar values based on estimated cost of the contract to align with inflation; removes superfluous language and modifies criteria to reflect preferred practices; make technical amendments; remove antiquated practices and provides flexibility in the selection process of members of the Selection Committee, required for competitive selection.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The changes to these rules do not directly or indirectly impose any costs on regulated entities, small business or government and, to the contrary, will provide clarity and reduce regulatory burdens.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein:

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 255.29, 255.05, 255.30 FS.

LAW IMPLEMENTED: 255.29, 255.05, 255.051, 255.30, 255.0525 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: October 21, 2014, 10:00 a.m.

PLACE: Department of Management Services, 4050 Esplanade Way, Suite 315K, Tallahassee, Florida 32399

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Dottie Young, Department of Management Services, 4050 Esplanade Way, Suite 315, Tallahassee, Florida 32399 or [e-mail]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Dottie Young, Department of Management Services, 4050 Esplanade Way, Suite 315, Tallahassee, Florida 32399 or [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

60D-5.002 Definitions.

(1) “Agency”, as the context requires, means an official, officer, commission, authority, council, committee, department, division, bureau, board, section or another unit or entity of state government.

(2) “Contract Levels” – increments of contract dollar value based on estimated cost of the contract are as follows:

(a) Level One – Contracts not exceeding a value of $35,000 10,000.

(b) Level Two – Contracts having a value greater than $35,000 10,000 but not exceeding $65,000 25,000.

(c) Level Three – Contracts having a value greater than $65,000 25,000 but not exceeding $200,000.

(d) Level Four – Contracts having a value exceeding $200,000 but not exceeding $500,000.

(e) Level Five – Contracts having a value exceeding $500,000.

(3) The “Agency Head” – The person or in the case of a collegial body the executive director or chief administrative officer of an Agency or other governmental unit statutorily responsible for final agency action, or theirhis authorized designee.

(4) The “Department” means the Department of Management Services.

(4)(5) The “Division” means a program of the Department as identified in Section 20.22(2)(a), Florida Statutes. the Division of Building Construction.

(5)(6) “Firm” or “Contractor” means any individual, firm, partnership, corporation, company, association, or other legal entity permitted by law to construct projects, or portions of projects, in the State of Florida.

(6)(7) “Project” means any facility, building, portion of building, utility, park, parking lot, structure or other improvement to real property required to be constructed, renovated, repaired, modified or demolished by an a state Agency.

(7)(8) “Design Professional” means the architect, engineer or other consultant under contract with the Agency for professional services.

(8)(9) “Non-material Bid Deviation” means a variation from the invitation to bid terms and conditions which does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders, or does not adversely impact the interests of the Agency.

(9)(10) “Single Source Contract” means a contract for construction services that are available from only one responsible qualified contractor.

(10)(11) “Valid Bid” means a bid that is responsive to the bidding documents and is submitted by a qualified responsible bidder. The validity of the bid is determined by the Agency and the construction management entity.

(11)(12) “Negotiated Fee-Guaranteed Maximum Price Construction Contracting Method” means a method of construction contracting whereby the construction management entity prime contractor is selected by the methods defined under Rule 60D-5.0082, F.A.C., to provide design phase consulting services, management and contractual responsibility for the total construction project. A fee is negotiated for profit, overhead and direct management costs. All subcontracts are awarded by the construction management entity prime contractor based on competitive bids received in response to invitations to bid issued by the construction management entity him. A guaranteed maximum price is provided by the construction management entity prime contractor and the total price paid to the construction management entity prime contractor is either the fee plus the actual construction cost or the guaranteed maximum price (GMP), whichever is less.

(12)(13) “Guaranteed Maximum Price” means the fixed amount in a negotiated fee-guaranteed maximum price contract within which the construction will be achieved. It includes all the fees, profit, overhead direct management costs, and the construction cost.

(13)(14) “Repairs” means the restoration to an acceptable original state of a decayed, broken, deteriorated or demolished facility, building, portion of building, utility, park, parking lot, structure or other real property.

(14)(15) “Maintenance” means the upkeep, preservation of condition or the sustaining of operation of a facility, building, portion of building, utility, park, parking lot, structure or real property.

(16) “Emergency” means a project necessitated by a sudden unexpected turn of events (e.g., acts of God, riot, fires, floods, accidents or any circumstances or cause beyond the control of the Agency in the normal conduct of its business) where the delay incident to competitive bidding would result in an immediate danger to the public health, safety or welfare or other substantial loss to the State.

(15)(17) “Client User Agency” means that Agency for which the project is being constructed.

(16)(18) “Responsive Bidder” means a firm who has submitted a bid or proposal which conforms in all material respects to the invitation to bid or request for proposals.

(17)(19) “Responsible bidder” or “qualified bidder” means a firm with the capability in all respects to perform fully the contract requirements and the integrity and reliability to assure good faith performance.

Rulemaking Specific Authority 255.29 FS. Law Implemented 255.29 FS. History–New 5-26-76, Amended 6-7-77, 7-14-81, 7-7-83, Formerly 13D-11.02, Amended 1-25-89, 11-5-91, Formerly 13D-11.002, Amended 8-28-96,__________.

 

60D-5.004 Bidder’s QPrequalification Requirements and Procedures.

(1) There are two steps in qualifying to perform construction of State projects: paragraph (2)(a) Prequalification to submit a bid and paragraph (2)(b) Prequalification for award of the contract.

(2)(a) Prequalification to submit a bid. (Prequalification requirements apply to all bidders as well as potential bidders on Levels Four and Five contracts.)

1. Requirements: Each potential bidder on Levels Four and Five contracts, whose field or area is governed by Chapter 399, 455, 489 or 633, F.S., for licensure will be prequalified by the Agency to participate in the bid process for a specific field or area of construction based on the bidder’s area of license or certification. In order to be eligible to submit a bid for construction, renovation, repairs, modifications, demolition or other work on an Agency project, during the current two year period (beginning on September July 1 of each even odd numbered year and continuing for a period of twenty-four months), a potential bidder under the jurisdiction of Chapter 399, 455, 489 or 633, F.S., must provide to the Agency evidence of the following qualifications biennially after September July 1, of each even odd numbered year, or during the bidding of a specific project. Prequalification with one Agency will not automatically prequalify the contractor with other Agencies. Contractors not governed by the requirements of Chapter 399, 455, 489, or 633, F.S., are not required to be prequalified under this section.

a. Current State Contractor license certification or registration as required under Florida Statutes.

b. Current Corporate Charter registration, if the potential bidder is a domestic (Florida) corporation, or authority to transact business if the potential bidder is a foreign (non-Florida) corporation, as may be required by Florida law.

2. For projects that require a contractor with specific expertise and experience, the Agency may state additional prequalification requirements relating to demonstrated performance of similar work of similar size and complexity and the possession or availability of facilities or equipment needed for performance of the work in addition to prequalification requirements in accordance with conditions that will be established in the bidding documents.

3. In each instance where the bid documents set forth certain additional prequalification requirements each potential bidder shall submit these prequalification data to the Agency as provided in the bid documents. The conditions may include a deadline date for submittal of additional prequalification data, which date will be earlier than the deadline for submission of bids. Bids are to be accepted only from those potential bidders who have prequalified in accordance with this section and the terms of the bidding documents.

4. Each potential bidder will be notified by the Agency to which it applied for prequalification of its eligibility or ineligibility to submit bids during the balance of the qualification period for a specific field or area of construction. A firm will be permitted to correct prequalification deficiencies if proof of correction is received 120 hours prior to the bid opening date and time. Any bidder or potential bidder that is determined to be ineligible because of failure to provide evidence of the minimum requirements will not be qualified to submit a bid and will be informed in writing of the deficiencies that must be corrected to be considered for future projects. Each potential bidder notified of its eligibility may submit a bid at the time and place designated in the bidding documents as long as the bidder is qualified and eligible to perform the work required by the bidding documents.

(b) Prequalifications for award of the contract on Levels Four and Five Contracts.

1. Requirements: any bidder that has submitted a bid on Levels Four and Five contracts must satisfy the following requirements as judged by the Agency in order to be eligible for award of the contract for construction.

a. Satisfactory compliance with bid prequalification criteria, if applicable.

b. On projects where the bid exceeds $100,000 the bidder must provide with the bid, a good faith deposit in the amount of 5% of the bid by way of a bid bond from a surety insurer authorized to do business in this State as surety or a certified check accompanying the bid, such requirement may be satisfied by the bidder depositing in lieu of such certified check, a cashier’s check, treasurer’s check or bank draft of any national or state bank.

c. On projects where the bid exceeds $100,000, unless such requirement has been waived in accordance with Rule 60D-5.0041, F.A.C., if requested by the Agency, the bidder must provide with the bid or within two working days of being notified as the low responsive, qualified bidder, evidence of ability to provide the necessary performance and payment bonds for the project by providing a letter of intent to provide a 100% performance bond and a 100% labor and material payment bond from a surety company authorized to do business in the State of Florida by the Department of Financial Services Insurance, and meeting the financial and performance rating required by the bidding documents. For contract amounts not exceeding $500,000, the provisions of Section 287.0935, F.S., shall govern.

d. The bidder must provide at any time prior to the Agency’s execution of the construction contract, evidence of insurance in effect, equal to or exceeding the limits required by the bidding documents.

e. On Levels Four and Five projects the bidder must provide, if requested by the Agency, a list of projects and their status for a period of thirty-six months prior to solicitation and a copy of the contractors current financial statement a completed experience questionnaire and financial statement on the form entitled “Experience Questionnaire and Contractor’s Financial Statement”, form number DBC-5085, revised 1/98, incorporated herein by reference. Form number DBC-5085 may be obtained from the Department of Management Services, Division of Real Estate Development and Management/Building Construction, 4050 Esplanade Way, Suite 315, Tallahassee, Florida 32399-0950, or from the appropriate Agency. The Contractor’s financial condition must demonstrate that adequate liquid assets and equipment are available to properly perform this project as follows: The value of liquid assets must be no less than one-twentieth of the amount of the base bid. Liquid assets shall include cash, stocks, bonds, pre-paid expenses and receivables, but shall not include the value of equipment.

f. Familiarity with local conditions – Unless waived by the Agency for good cause, on Levels Four and Five projects, the contractor must agree to establish or have an active office, or an ongoing project, which office or project is located within 300 road miles of the project site. Good cause shall be the bidder’s refusal to establish a project office with qualified management personnel at or within 300 miles of the project site or a finding by the Agency that a bidder’s office within 300 miles of the project site is not in fact an active office staffed with qualified management staff.

g. Work force – On Level Five projects, the contractor must agree to perform no less than 15% of the project management and construction work utilizing its own employees.

h. Firm experience – On Level Five projects, the contractor, or a majority owner, must have successfully completed no less than two projects of similar size and complexity within the last three years.

i. Supervisor – On Level Five projects, the contractor must agree to provide field (on-site) supervision (through a named superintendent) for all trade subcontractors on the project. for each of the general, concrete forming and placement, masonry, mechanical, plumbing, electrical and roofing trades, either through the use of its employees, or in the instance of mechanical, plumbing, electrical and roofing trades through the use of employees of the subcontractor. In addition, the contractor shall assign and name a supervisory qualified employee to provide scheduling direction to the entire project. Supervisory employees (including field superintendents, foreman and schedulers at all levels) must have been employed in a supervisory (leadership) capacity of a substantially equivalent level on a similar project for at least two years within the last five years. The contractor  shall include a resume of experience for each of those proposed supervisory employees identified by him to supervise each trade, and for scheduling, with its submittal of the experience questionnaire (item e. above).

j. Any sSpecific expertise and experience the a contractor’s staff has must have to perform a project requiring unique or specialized capabilities.

2. The firm determined by the Agency to have submitted the low, responsive bid must complete and submit the above required qualification data where applicable within seven working days after being notified as the low responsive bidder. The Agency will evaluate all data submitted within seven fourteen days of receipt and determine whether the firm is a qualified bidder. Should the bidder be judged unqualified, its bid will be rejected and the bidder submitting the next low responsive bid will be given seven working days to submit its qualification data.

Rulemaking Specific Authority 255.29 FS. Law Implemented 255.05, 255.051, 255.29 FS. History–New 5-26-76, Amended 6-7-77, 7-14-81, 7-7-83, 9-2-85, Formerly 13D-11.04, Amended 1-1-87, 11-5-91, Formerly 13D-11.004, Amended 8-28-96, 9-22-99,__________.

 

60D-5.0041 Waiver of Bond Requirements.

(1)(a) Any person or corporation entering into a formal contract with an Agency for the construction of a public building, or a portion of a public building, for the prosecution and completion of a public work, or for repairs upon a public building or public work for more than $100,000 shall be required, before commencing the work, to execute a payment and performance bond in accordance with the requirements of Section 255.05, F.S. In awarding contracts for the construction of any public building, for the prosecution and completion of any public work, or for repairs upon any public building or public work for more than $100,000 but not more than $200,000, the Secretary of the Department may delegate to an Agency the authority to exempt any person entering into the contract from executing the payment and performance bond required by Section 255.05, F.S., provided that the contract requires the contractor may be paid periodically only upon compliance with the applicable provisions of Section 255.05, F.S., and subsection 60D-5.0041(2), F.A.C.

(a)(b) An The aAgency pursuant to Section 255.05, F.S., may request delegation of authority from the Secretary to exempt the requirement for performance bond and labor and material bond on a specific project for more than $100,000 but not more than $200,000, in writing, by furnishing the following to the Division prior to the public advertisement for bids:

1. Copy of the project legislative budget request in the capital improvement plan;

2. Statement containing the chronology of the project anticipated bid date, completion date and final construction cost.

3. Statement from the project’s design professional that the exemption of the requirement for performance bond and labor and payment bond will increase the probability of securing competitive bids within the project construction budget.

4. Copies of the approved construction documents for the project, including plans and specifications.

(b)(c) The Agency, in its public advertisement, shall notify bidders that the project has been exempted from the requirement for the performance bond and labor and material bond.

(2) In all cases where a performance and payment bond is not provided, the following procedures shall be followed:

(a) At any time prior to final completion of a contract exempted from bond requirements, the contracting authority  shall not authorize or make payment to the contractor in excess of ninety percent (90%) of the amount due on the contract on the basis of the work suitably completed and material suitably stored on the site.

(b) In case of default by the contractor, the laborers, materialmen, and subcontractors, as defined in Section 713.01, F.S., making claims for unpaid bills, will be paid from the ten percent (10%) retainage on a pro rata basis as follows:

1. The sum of all claims made  shall be divided into each individual claim thereby deriving a percentage value for each claim. The total retainage will then be multiplied by the percentage value and the result  shall be the pro rata share of the retainage to be paid to the claimant; however the payment shall not be more than the claim.

2. The final payment of retainage shall not be made until the project has been inspected by the Architect/Engineer or other person designated by the contracting authority for that purpose and until they have he has issued a written certificate that the project has been constructed in accordance with the approved plans, specifications and approved change orders and until the contracting authority has accepted the project, and until the contractor has supplied the contracting authority with signed and dated statements from all laborers, materialmen, and subcontractors as defined in Section 713.01, F.S., and identified under 4 hereinafter, that they have no claims against the contractor for the work under the contract. Said statements shall identify the project by name and project number.

3. The contractor, before beginning work or within two workdays thereafter,  shall post in a conspicuous place on the project site the following notice:

“Notice is hereby made to all those concerned and affected that ___ (CONTRACTOR'S NAME) is performing ___ (PROJECT NAME), ___ (PROJECT NUMBER) at ___ (LOCATION). All parties furnishing labor and/or materials to said project are to provide notice of such in writing by certified mail to the (AGENCY) within twenty days of first providing such labor and/or materials.”

4. The contractor  shall provide a certified list of all sub-contractors, laborers and material suppliers to the Agency within thirty days of its receiving its notice to proceed with the work. This list  shall be updated thereafter each month with a certified statement that the list and its updates include the names and addresses of all of those sub-contractors, laborers, and material suppliers furnishing labor and/or material for the project.

5. The contractor shall provide a written statement with each pay request to the Agency which indicates how each payment requested will be distributed. This pay request breakdown shall define the disbursement intended for all of the funds requested.

6. When a contractor receives any payment it shall pay such moneys received to each sub-contractor and material supplier in accordance with Section 287.0585, F.S.

7. The contractor shall provide a written statement with all but the first payment request from each of the subcontractors, laborers and material suppliers indicated in 4. above, that they have in fact received payment as indicated in the preceding statements. In the event any payment is not made as indicated on a prior statement noted in 5. above, the contractor shall furnish an explanation as to the reasons for such deviation and shall request approval from the Agency.

Rulemaking Specific Authority 255.05, 255.29 FS. Law Implemented 255.05, 255.29 FS. History–New 5-26-76, Amended 6-7-77, 7-14-81, Formerly 13D-11.04, Amended 7-7-83, Formerly 13D-11.041, Amended 6-11-86, 11-5-91, Formerly 13D-11.0041, Amended 8-28-96,__________.

 

60D-5.007 Determination of Successful Bidder.

(1) All projects except where competitive bidding is waived under the provisions of Rule 60D-5.008, F.A.C., will be publicly bid in accordance with the provisions in the project specifications bidding documents and Section 255.0518, F.S. Award of contract will be made to the responsive bidder, determined to be qualified in accordance with the provisions herein and meeting the requirements of the bidding documents, that submits the lowest valid bid for the work. The lowest bid will be determined as follows:

(2) The lowest bid will be the bid from the responsive bidder that has submitted the lowest price for the base bid or the base bid plus the additive alternates or less the deductive alternates chosen by the Agency, or contract management entities in conjunction with the Agency, to be included in or excluded from the proposed contract, taken in numerical order listed in the bid documents. The order of the alternates may be selected by the Agency, or contract management entities in conjunction with the Agency, in any sequence so long as such acceptance out of order does not alter the designation of the low bidder.

(3) On projects whose bidding documents provide for evaluation of the bids based on first cost and life cycle cost and performance criteria, the lowest bid will be the bid by the firm whose bid products are determined to yield the lowest total cost in accordance with the criteria set forth in the bidding documents.

Rulemaking Specific Authority 255.29, 255.30 FS. Law Implemented 255.29, 255.30 FS. History–New 5-26-76, Amended 6-7-77, 7-14-81, 7-7-83, Formerly 13D-11.07, Amended 11-5-91, Formerly 13D-11.007, Amended__________.

 

60D-5.0071 Rejection of Bid(s).

(1) The Agency, or contract management entities in conjunction with the Agency, shall reserve the right to reject any or all bids or portions thereof under any of the following circumstances:

(a)(2) When the bidding process, including the procedure followed by the Agency, involves a material conflict with a rule or statutory or case law;

(b)(3) When the Agency has evidence to indicate that collusion exists among the bidders;

(c)(4) When the base bid or the base bid minus all deductive alternates exceeds the funds available for construction;

(d)(5) When the Agency has evidence to indicate the bidder is not in a position to perform the contract in accordance with Rule 60D-5.004, F.A.C.;

(e)(6) When the Agency has evidence to indicate the bidder has interest in more than one proposal for the same work;

(f)(7) When the Agency finds the unit price provided with a bid proposal is not approximately the same as the unit cost for the same work provided as a lump sum for a specified quantity in the base bid, or alternate;

(g)(8) When the Agency determines that the bid is not valid according to the bid specifications;

(h)(9) When the Agency determines that a conflict of interest exists.

(2)(10) The Agency Owner also reserves the right to reject a bid that is unreasonably low. “Unreasonably low” means that requiring the contractor to perform the contract at that price would be reasonably expected to result in unacceptable quality of performance or abandonment of the project; however, this subsection is not applicable unless the bid is at least 20% less than the next low bid. When the Agency Owner suspects that the apparent low responsive bid is unreasonably low, the following policies and procedures apply:

(a) The Agency Owner shall advise the bidder of why the bid is suspected of being unreasonably low and require the bidder to reconsider the bid.

(b) The bidder, upon reconsideration, within 10 working days, (or longer if the parties agree), from the date the bidder received the Owner’s request for reconsideration, shall inform the Agency Owner of its position on whether the bid is unreasonably low and furnish the Agency Owner all relevant information including the documents that pertain to the reconsideration. The bidder shall demonstrate to the Agency Owner that its position is correct, whether the decision was affirmative or negative.

(c) If the Agency Owner concludes that the bid is unreasonably low, the Agency Owner shall give notice of intention to reject the bid, subject to the right of the bidder to file a bid protest. If the bidder fails to furnish evidence in support of the bid, the Agency Owner may presume that the bid is unreasonably low.

Rulemaking Specific Authority 255.29 FS. Law Implemented 255.29 FS. History–New 7-7-83, Formerly 13D-11.071, Amended 11-5-91, Formerly 13D-11.0071, Amended 8-28-96,__________.

 

60D-5.0073 Contract Levels, Limits of Public Advertising, Negotiation and Bidding.

(1) The Department hereby determines that it is in the best interest of the State to waive the requirements of advertising required under Rule 60D-5.003, F.A.C., and bidding required under Rule 60D-5.007, F.A.C., and permit the negotiation of contracts within Levels One, Two and Three. The Department hereby delegates authority to each Agency to negotiate and execute a contract in accordance with these rules for projects within these levels. cContract levels shall be as defined in subsection 60D-5.002(2), F.A.C.

(2) Contracts within Level One may be executed negotiated with the firm whose proposal, in the Agency’s judgement, determines best meets the needs of the Agency, using two or more verbal quotations, whenever practical. Should verbal quotations be received, name and address of the company and amount quoted shall be a part of the written documentation. If at least two quotations are not received, a statement ofr why they were not received must be shown. Quotations shall be confirmed by written proposals of the firms defining the scope and quality of work to be provided.

(3) Contracts within Levels Two and Three may be executed negotiated with the firm whose proposal, in the Agency’s determines judgment, best meets the needs of the Agency. The Agency shall request at least three firms to submit sealed written proposals based on a written specification. The written proposals shall all be opened publicly at the same date, time and place named by the Agency. A tabulation of the negotiation results shall be furnished to each firm if requested.

(4) Except as otherwise authorized by law or rule, competitive sealed bids are required for contracts within Level Four, which shall be publicly advertised in the Florida Administrative Register once, at least 21 calendar days prior to the established bid opening, based on approved plans and specifications. The announcement shall may also be published on the Florida Communities Network at Agency’s website. Bids shall be received and opened publicly at a location, date and time established in the bid advertisement, and results will be posted on the Agency’s website.

(5) Except as otherwise authorized by law or rule, competitive sealed bids are required for contracts within Level Five, which shall be publicly advertised in the Florida Administrative Register at least 30 days prior to the established bid opening, and in at least one once in a newspaper of general circulation in the county where the project is located at least 30 days prior to the established bid opening and at least 5 days prior to any scheduled pre-bid conference. The announcement shall may also be published on the Agency’s website Florida Communities Network at http://fcn.state.fl.us/dms/dbc/oppor1.html. Bids shall be received and opened publicly at a location, date and time established in the bid advertisement, and results will be posted on the Agency’s website. In cases of emergency, the Secretary of the Department of Management Services may alter the procedures required in this section in any manner that is reasonable under the emergency circumstances.

Rulemaking Specific Authority 255.29 FS. Law Implemented 255.29, 255.0525 FS. History–New 11-5-91, Formerly 13D-11.0073, Amended 8-28-96, 12-8-98,__________.

 

60D-5.008 Qualifications-Based Selection; Contractor Selection and Negotiation Procedures for Projects Within Level Four and Level Five Contracts.

(1) The Secretary of the Department may waive the requirements of Rules 60D-5.003 and 60D-5.0073, F.A.C., and permit negotiation of construction contracts in accordance with Rules 60D-5.0082 and 60D-5.0091, F.A.C., in cases determined by him to be in the best interest of the State.

(2) In making a determination of best interest of the State, the Secretary of the Department may consider such factors as:

(a) Is the need for the facility significant enough to require a substantial reduction of normal delivery time, requiring overlap of design and construction development phases?

(b) Is the size of the project large, requiring major emphasis on the qualification of the prime contractor because of the highly specialized requirements for scheduling, value engineering, and construction management?

(c) Is the complexity of the project significant, requiring a prime contractor with specific expertise to be applied to the design process with continuity through the construction phase?

(d) Is the project construction funding spread out over more than one year thereby making it advantageous to retain a prime contractor through a construction management/negotiated fee-guaranteed maximum price form of agreement?

(e) Is the project an alteration of an occupied facility which requires working around or relocating occupants while keeping the facility fully operational?

(f) Is the project a repair or renovation where the conditions requiring correction cannot be fully determined and specified without prime contractor involvement in the removal and examination process as an integral part of design (e.g., concealed damages, removal of asbestos, transformers containing PCB’s, etc.)?

(g) Is the project one which is predominantly historic preservation/restoration requiring a specifically qualified prime contractor’s involvement in the design process with continuity of construction management through both the design and construction phases?

(h) Is the Agency able and qualified to perform the contractor selection and contract negotiation in accordance with Rules 60D-5.0082 and 60D-5.0091, F.A.C., as determined by the Division?

(i) Are the construction services required to perform the work on the project available only from one contractor, for a “single source contract”?

(3) In requesting in writing the authority to negotiate from the Secretary, the Agency shall respond to the applicable factors in subsection 60D-5.008(2), F.A.C., in sufficient detail to justify the authority and will certify to the Secretary that such factors exist, and that negotiation of the construction contract will accommodate reduction in delivery time, size and complexity, special expertise, funding cycles or any of the factors under consideration.

Rulemaking Specific Authority 255.29, 255.30 FS. Law Implemented 255.29, 255.30 FS. History–New 5-26-76, Amended 1-2-78, 7-14-81, 7-7-83, Formerly 13D-11.08, Amended 1-25-89, 11-5-91, Formerly 13D-11.008, Amended__________.

 

60D-5.0082 Competitive Selection.

When authorized under Rule 60D-5.008 or 60D-5.0081, F.A.C., the Agency shall determine the prime contractor most able to perform the work as follows:

(1) For competitive selection by the Department, there shall be a Selection Committee comprised of a minimum of five persons consisting of the following: Three members shall be selected by the Director of the Division or their his designated alternate; the Fixed Capital Outlay Projects Manager or his designated alternate; the Division’s project manager for the project; and two members shall be selected by representatives of the Client Agency for which the project will be constructed. For other Agencies there shall be a committee of no less than five persons consisting of at least one Division Director and one Bureau Chief or their equivalent plus three other members familiar with the construction industry and with the project. Once the Selection Committee is established, it shall serve throughout the selection process for a project until completed.

(2) For each project for which construction services are required the Selection Committee shall evaluate statements of qualification data submitted by firms proposing to provide construction services for the project. It shall conduct discussions with and may require public presentation by no less than three firms, or all firms if fewer than three firms submit statements of qualification, regarding their qualifications, approach to the project and ability to furnish the required services.

(3) The Selection Committee shall determine the relative ability of each firm to perform the services required for each project. Determination of ability shall be developed utilizing the evaluation criteria set forth in the evaluation scoring form, number (PD-24) DBC-5033 entitled “Evaluation Summary Sheet – General Contractor/Construction Manager Selection”, revised 6/2014 2-99 which is hereby incorporated by reference. The form with instructions for its use may be obtained from the Department of Management Services, Division of Real Estate Development and Management/Building Construction, 4050 Esplanade Way, Suite 315, Tallahassee, Florida 32399-0950 or on the department’s website.

(4) The Selection Committee shall select no less than three firms in order of preference, and deemed to be most highly qualified to perform the required services based on the scores determined pursuant to subsection (3). The Committee will recommend its selections to the Agency Head. The gency will negotiate a contract with the firm determined to be most qualified in full accordance with procedures set forth in Rule 60D-5.0091, F.A.C.

Rulemaking Specific Authority 255.29 FS. Law Implemented 255.29 FS. History–New 1-25-89, Amended 11-5-91, Formerly 13D-11.0082, Amended 8-28-96, 9-22-99,__________.

 

60D-5.0091 Competitive Negotiation.

(1) When authorized under Rule 60D-5.008 or Rule 60D-5.0081, F.A.C., the Agency shall negotiate a contract for construction services for the project with the firm authorized under Rule 60D-5.0082, F.A.C., at compensation determined to be fair, competitive and reasonable, to provide for profit, overhead, and direct management costs plus actual costs not to exceed a guaranteed maximum price.

(2) Should the Agency be unable to negotiate a satisfactory contract with the firm considered to be the most qualified, at a price the Agency determines to be fair, competitive and reasonable, negotiations with that firm shall be formally terminated. The Agency shall then undertake negotiations with the second most qualified firm and thereafter if necessary with the third.

(3) Should the Agency be unable to negotiate a satisfactory contract with any of the selected firms, additional firms shall be selected in accordance with Rule 60D-5.0082, F.A.C. Negotiations shall continue in accordance with this section until an agreement is reached.

Rulemaking Specific Authority 255.29, 255.30 FS. Law Implemented 255.29, 255.30 FS. History–New 1-25-89, Amended 11-5-91, Formerly13D-11.0091, Amended__________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Tom Berger, Director, Division of Real Estate Development and Management

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Secretary Craig J. Nichols

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 18, 2014

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: May 27, 2014