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Select Year: 2006
The 2006 Florida Statutes
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Title XIX Chapter 287 View Entire
PUBLIC PROCUREMENT OF PERSONAL PROPERTY AND Chapter
BUSINESS SERVICES
287.055 Acquisition of professional architectural, engineering, landscape architectural, or
surveying and mapping services; definitions; procedures; contingent fees prohibited;
penalties.--
(1) SHORT TITLE. --This section shall be known as the "Consultants' Competitive Negotiation Act."
(2) DEFINITIONS. --For purposes of this section:
(a) "Professional services" means those services within the scope of the practice of architecture,
professional engineering, landscape architecture, or registered surveying and mapping, as defined
by the laws of the state, or those performed by any architect, professional engineer, landscape
architect, or registered surveyor and mapper in connection with his or her professional
employment or practice.
(b) "Agency" means the state, a state agency, a municipality, a political subdivision, a school
district, or a school board. The term "agency' does not extend to a nongovernmental developer
that contributes public facilities to a political subdivision under s. 380.06 or ss. 163.3220-163.3243.
(c) "Firm" means any individual, firm, partnership, corporation, association, or other legal entity
permitted by law to practice architecture, engineering, or surveying and mapping in the state.
(d) "Compensation" means the amount paid by the agency for professional services regardless of
whether stated as compensation or stated as hourly rates, overhead rates, or other figures or
formulas from which compensation can be calculated.
(e) "Agency official" means any elected or appointed officeholder, employee, consultant, person in
the category of other personal service or any other person receiving compensation from the state,
a state agency, municipality, or political subdivision, a school district or a school board.
(f) "Project' means that fixed capital outlay study or planning activity described in the public
notice of the state or a state agency under paragraph (3)(a). A project may include:
1. A grouping of minor construction, rehabilitation, or renovation activities.
2. A grouping of substantially similar construction, rehabilitation, or renovation activities.
(g) A "continuing contract" is a contract for professional services entered into in accordance with
all the procedures of this act between an agency and a firm whereby the firm provides professional
services to the agency for projects in which construction costs do not exceed $1 million, for study
activity when the fee for such professional service does not exceed $50,000, or for work of a
specified nature as outlined in the contract required by the agency, with no time limitation except
that the contract must provide a termination clause. Firms providing professional services under
continuing contracts shall not be required to bid against one another.
(h) A "design -build firm" means a partnership, corporation, or other legal entity that:
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1. Is certified' under s. 489.119 to engage in contracting through a certified or registered general
contractor or a certified or registered building contractor as the qualifying agent; or
2. Is certified under s. 471.023 to practice or to offer to practice engineering; certified under s.
48.1,.21.9 to practice or to offer to practice architecture; or certified under s. 481.319 to practice or
to offer to practice landscape architecture.
(i) A "design -build contract" means a single contract with a design -build firm for the design and
construction of a public construction project.
(j) A "design criteria package" means concise, performance -oriented drawings or specifications of
the public construction project. The purpose of the design criteria package is to furnish sufficient
information to permit design -build firms to prepare a bid or a response to an agency's request for
proposal, or to permit an agency to enter into a negotiated design -build contract. The design
criteria package must specify performance -based criteria for the public construction project,
including the legal description of the site, survey information concerning the site, interior space
requirements, material quality standards, schematic layouts and conceptual design criteria of the
project, cost or budget estimates, design and construction schedules, site development
requirements, provisions for utilities, stormwater retention and disposal, and parking requirements
applicable to the project.
(k) A "design criteria professional" means a firm who holds a current certificate of registration
under chapter 481 to practice architecture or landscape architecture or a firm who holds a current
certificate as a registered engineer under chapter 471 to practice engineering and who is employed
by or under contract to the agency for the providing of professional architect services, landscape
architect services, or engineering services in connection with the preparation of the design criteria
package.
(t) "Negotiate" or any form of that word means to conduct legitimate, arms length discussions and
conferences to reach an agreement on a term or price. For purposes of this section, the term does
not include presentation of flat -fee schedules with no alternatives or discussion.
(3) PUBLIC ANNOUNCEMENT AND QUALIFICATION PROCEDURES.--
(a)1. Each agency shall publicly announce, in a uniform and consistent manner, each occasion
when professional services must be purchased for a project the basic construction cost of which is
estimated by the agency to exceed the threshold amount provided in s. 287.017 for CATEGORY FIVE
or for a planning or study activity when the fee for professional services exceeds the threshold
amount provided in s. 287,017 for CATEGORY TWO, except in cases of valid public emergencies
certified by the agency head. The public notice must include a general description of the project
and must indicate how interested consultants may apply for consideration.
2. Each agency shalt provide a good faith estimate in determining whether the proposed activity
meets the threshold amounts referred to in this paragraph.
(b) Each agency shall encourage firms engaged in the lawful practice of their professions that
desire to provide professional services to the agency to submit annually statements of
qualifications and performance data.
(c) Any firm or individual desiring to provide professional services to the agency must first be
certified by the agency as qualified pursuant to law and the regulations of the agency. The agency
must find that the firm or individual to be employed is fully qualified to render the required
service. Among the factors to be considered in making this finding are the capabilities, adequacy of
personnel, past record, and experience of the firm or individual.
(d) Each agency shall evaluate professional services, including capabilities, adequacy of personnel,
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past record, experience, whether the firm is a certified minority business enterprise as defined by
the Florida Small and Minority Business Assistance Act of 1985, and other factors determined by the
agency to be applicable to its particular requirements. When securing professional services, an
agency must endeavor to meet the minority business enterprise procurement goals under s.
287,09451.
(e) The public must not be excluded from the proceedings under this section.
(4) COMPETITIVE SELECTION. --
(a) For each proposed project, the agency shall evaluate current statements of qualifications and
performance data on file with the agency, together with those that may be submitted by other
firms regarding the proposed project, and shall conduct discussions with, and may require public
presentations by, no fewer than three firms regarding their qualifications, approach to the project,
and ability to furnish the required services.
(b) The agency shall select in order of preference no fewer than three firms deemed to be the
most highly qualified to perform the required services. In determining whether a firm is qualified,
the agency shall consider such factors as the ability of professional personnel; whether a firm is a
certified minority business enterprise; past performance; willingness to meet time and budget
requirements; location; recent, current, and projected workloads of the firms; and the volume of
work previously awarded to each firm by the agency, with the object of effecting an equitable
distribution of contracts among qualified firms, provided such distribution does not violate the
principle of selection of the most highly qualified firms. The agency may request, accept, and
consider proposals for the compensation to be paid under the contract only during competitive
negotiations under subsection (5).
(c) This subsection does not apply to a professional service contract for a project the basic
construction cost of which is estimated by the agency to be not in excess of the threshold amount
provided in s. 287.017 for CATEGORY FIVE or for a planning or study activity when the fee for
professional services is not in excess of the threshold amount provided in s. 287.017 for CATEGORY
TWO. However, if, in using another procurement process, the majority of the compensation
proposed by firms is in excess of the appropriate threshold amount, the agency shalt reject all
proposals and reinitiate the procurement pursuant to this subsection.
(d) Nothing in this act shall be construed to prohibit a continuing contract between a firm and an
agency.
(5) COMPETITIVE NEGOTIATION. --
(a) The agency shall negotiate a contract with the most qualified firm for professional services at
compensation which the agency determines is fair, competitive, and reasonable. In making such
determination, the agency shall conduct a detailed analysis of the cost of the professional services
required in addition to considering their scope and complexity, For any tump-sum or cost -plus -a -
fixed -fee professional service contract over the threshold amount provided in s. 287.017 for
CATEGORY FOUR, the agency shall require the firm receiving the award to execute a truth -in -
negotiation certificate stating that wage rates and other factual unit costs supporting the
compensation are accurate, complete, and current at the time of contracting. Any professional
service contract under which such a certificate is required must contain a provision that the
original contract price and any additions thereto will be adjusted to exclude any significant sums
by which the agency determines the contract price was increased due to inaccurate, incomplete,
or noncurrent wage rates and other factual unit costs. All such contract adjustments must be made
within 1 year following the end of the contract.
(b) 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,
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negotiations with that firm must be formally terminated. The agency shall then undertake
negotiations with the second most qualified firm. Failing accord with the second most qualified
firm, the agency must terminate negotiations. The agency shall then undertake negotiations with
the third most qualified firm.
(c) Should the agency be unable to negotiate a satisfactory contract with any of the selected
firms, the agency shall select additional firms in the order of their competence and qualification
and continue negotiations in accordance with this subsection until an agreement is reached.
(6) PROHIBITION AGAINST CONTINGENT FEES. --
(a) Each contract entered into by the agency for professional services must contain a prohibition
against contingent fees as follows: "The architect (or registered surveyor and mapper or
professional engineer, as applicable) warrants that he or she has not employed or retained any
company or person, other than a bona fide employee working solely for the architect (or registered
surveyor and mapper, or professional engineer, as applicable) to solicit or secure this agreement
and that he or she has not paid or agreed to pay any person, company, corporation, individual, or
firm, other than a bona fide employee working solely for the architect (or registered surveyor and
mapper or professional engineer, as applicable) any fee, commission, percentage, gift, or other
consideration contingent upon or resulting from the award or making of this agreement." For the
breach or violation of this provision, the agency shall have the right to terminate the agreement
without liability and, at its discretion, to deduct from the contract price, or otherwise recover, the
full amount of such fee, commission, percentage, gift, or consideration.
(b) Any individual, corporation, partnership, firm, or company, other than a bona fide employee
working solely for an architect, professional engineer, or registered land surveyor and mapper, who
offers, agrees, or contracts to solicit or secure agency contracts for professional services for any
other individual, company, corporation, partnership, or firm and to be paid, or is paid, any fee,
commission, percentage, gift, or other consideration contingent upon, or resulting from, the award
or the making of a contract for professional services shall, upon conviction in a competent court of
this state, be found guilty of a first degree misdemeanor, punishable as provided In s. 77.5,082 or s.
77.5.083.
(c) Any architect, professional engineer, or registered surveyor and mapper, or any group,
association, company, corporation, firm, or partnership thereof, who offers to pay, or pays, any
fee, commission, percentage, gift, or other consideration contingent upon, or resulting from, the
award or making of any agency contract for professional services shall, upon conviction in a state
court of competent authority, be found guilty of a first degree misdemeanor, punishable as
provided in s. 775.082 or s. 775.083.,
(d) Any agency official who offers to solicit or secure, or solicits or secures, a contract for
professional services and to be paid, or is paid, any fee, commission, percentage, gift, or other
consideration contingent upon the award or making of such a contract for professional services
between the agency and any individual person, company, firm, partnership, or corporation shall,
upon conviction by a court of competent authority, be found guilty of a first degree misdemeanor,
punishable as provided in s. 775.082 or s. 775,083.
(7) AUTHORITY OF DEPARTMENT OF MANAGEMENT SERVICES. --Notwithstanding any other provision
of this section, the Department of Management Services shall be the agency of state government
which is solely and exclusively authorized and empowered to administer and perform the functions
described in subsections (3), (4), and (5) respecting all projects for which the funds necessary to
complete same are appropriated to the Department of Management Services, irrespective of
whether such projects are intended for the use and benefit of the Department of Management
Services or any other agency of government. However, nothing herein shall be construed to be in
derogation of any authority conferred on the Department of Management Services by other express
provisions of law. Additionally, any agency of government may, with the approval of the
Department of Management Services, delegate to the Department of Management Services
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authority to administer and perform the functions described in subsections (3), (4), and (5). Under
the terms of the delegation, the agency may reserve its right to accept or reject a proposed
contract.
(8) STATE ASSISTANCE TO LOCAL AGENCIES. --On any professional service contract for which the
fee is over $25,000, the Department of Transportation or the Department of Management Services
shall provide, upon request by a municipality, political subdivision, school board, or school district,
and upon reimbursement of the costs involved, assistance in selecting consultants and in
negotiating consultant contracts.
(9) APPLICABILITY TO DESIGN -BUILD CONTRACTS. --
(a) Except as provided in this subsection, this section is not applicable to the procurement of
design -build contracts by any agency, and the agency must award design -build contracts in
accordance with the procurement laws, rules, and ordinances applicable to the agency.
(b) The design criteria package must be prepared and sealed by a design criteria professional
employed by or retained by the agency. If the agency elects to enter into a professional services
contract for the preparation of the design criteria package, then the design criteria professional
must be selected and contracted with under the requirements of subsections (4) and (5). A design
criteria professional who has been selected to prepare the design criteria package is not eligible to
render services under a design -build contract executed pursuant to the design criteria package.
(c) Except as otherwise provided in s. 337.1.1(7), the Department of Management Services shall
adopt rules for the award of design -build contracts to be followed by state agencies. Each other
agency must adopt rules or ordinances for the award of design -build contracts. Municipalities,
political subdivisions, school districts, and school boards shall award design -build contracts by the
use of a competitive proposal selection process as described in this subsection, or by the use of a
qualifications -based selection process pursuant to subsections (3), (4), and (5) for entering into a
contract whereby the selected firm will subsequently establish a guaranteed maximum price and
guaranteed completion date. If the procuring agency elects the option of qualifications -based
selection, during the selection of the design -build firm the procuring agency shall employ or retain
a licensed design professional appropriate to the project to serve as the agency's representative.
Procedures for the use of a competitive proposal selection process must include as a minimum the
following:
1. The preparation of a design criteria package for the design and construction of the public
construction project.
2. The qualification and selection of no fewer than three design -build firms as the most qualified,
based on the qualifications, availability, and past work of the firms, including the partners or
members thereof.
3. The criteria, procedures, and standards for the evaluation of design -build contract proposals or
bids, based on price, technical, and design aspects of the public construction project, weighted for
the project.
4. The solicitation of competitive proposals, pursuant to a design criteria package, from those
qualified design -build firms and the evaluation of the responses or bids submitted by those firms
based on the evaluation criteria and procedures established prior to the solicitation of competitive
proposals.
5. For consultation with the employed or retained design criteria professional concerning the
evaluation of the responses or bids submitted by the design -build firms, the supervision or approval
by the agency of the detailed working drawings of the project; and for evaluation of the
compliance of the project construction with the design criteria package by the design criteria
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professional.
6. In the case of public emergencies, for the agency head to declare an emergency and authorize
negotiations with the best qualified design -build firm available at that time.
(10) REUSE OF EXISTING PLANS. --Notwithstanding any other provision of this section, there shall be
no public notice requirement or utilization of the selection process as provided in this section for
projects in which the agency is able to reuse existing plans from a prior project of the agency, or,
in the case of a board as defined in s. 1013.,01, a prior project of that or any other board. Except
for plans of a board as defined in s. 1013.01, public notice for any plans that are intended to be
reused at some future time must contain a statement that provides that the plans are subject to
reuse in accordance with the provisions of this subsection.
(11) CONSTRUCTION OF LAW. --Nothing in the amendment of this section by chapter 75-281, Laws
of Florida, is intended to supersede the provisions of ss..1013,45 and 101..3,46,
History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, ch. 73-19; ss. 1, 2, 3, ch. 75-281; s. 1, ch. 77-174; s. 1, ch. 77-
199; s. 10, ch. 84-321; ss. 23, 32, ch. 85-104; s. 57, ch. 85-349; s. 6, ch. 86-204; s. 1, ch. 88-108; s.
1, ch. 89-158; s. 16, ch. 90-268; s. 15, ch. 91-137; s. 7, ch. 91-162; s. 250, ch. 92-279; s. 55, ch.
92-326; s. 1, ch. 93-95; s. 114, ch. 94-119; s. 10, ch. 94-322; s. 868, ch. 95-148; s. 2, ch. 95-410; s.
45, ch. 96-399; s. 38, ch. 97-100; s. 1, ch. 97-296; s. 80, ch. 98-279; s. 55, ch. 2001-61; s. 63, ch.
2002-20; s. 944, ch. 2002-387; s. 1, ch. 2005-224.
Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be
consulted for official purposes. Copyright ® 2000-2006 State of Florida.
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