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Setect Year: 2017 v Go
The 2017 Florida Statutes
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 re,istered surveyor and mapper in, connection with his or her professional employment or practice.
(b) "Agency" means the state, a state agency, a municipality, a politica( 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 the estimated construction cost of each individual project under the
contract does not exceed $2 million, for study activity if the fee for professional services for each
individual study under the contract does not exceed $200,000, or for work of a specified nature as
outlined in the contract required by the agency, with the contract being for a fixed term or 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:
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
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2. Is certified under s. 471.023 to practice or to offer to practice engineering; certified under s.
481.219 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 singte contract with a desian-build firm for the desian 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,
starmwater 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.
(l) "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 Rat -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 cast of which is estimated
by the agency tc 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. 787.017 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 lawfut 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 taw 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 personnet,
past record, experience, whether the firm is a certified minority business enterprise as defined by the
Florida Small and Minority Business Assistance Act, 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.
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(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 setection 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 rot 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 shall 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 lump -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,
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.
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(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.
(b) 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 (and 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 seraices shall, upon conviction in a competent court of this state, be found
guilty of a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083.
(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 shalt 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 authority to administer and perform the functions described in
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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 roust 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 desfgn 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. 337,11(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 shalt 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, subsequent to competitive negotiations, 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-buitd 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 professional.
b. 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.
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(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 LAM -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 1013.46,
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, cls. 77-199; s. 10, ch. 84-321; 55.
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. 90268; s. 15, ch. 91-137; S.
7, ch. 91-162; s. 250, ch. 92.279; s. 55, ch. 92-326; s. 1, ch. 9395; 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; s. 19, ch. 2007.157; s. 3, ch. 2007.159; s. 3, ch. 2009-227.
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