US Laws, Codes, Statutes & Cases

CHAPTER 255

PUBLIC PROPERTY AND PUBLICLY OWNED BUILDINGS

255.01  Proceeds of insurance may be used to replace property destroyed.

255.02  Boards authorized to replace buildings destroyed by fire.

255.03  Proceeds of insurance to be paid into State Treasury; disbursement of funds.

255.04  Preference to home industries in building public buildings.

255.041  Separate specifications for building contracts.

255.042  Shelter in public buildings.

255.043  Art in state buildings.

255.045  Cleanup after events held on public property.

255.047  Publicly owned or operated convention centers, sports stadiums, sports arenas, coliseums, or auditoriums; booking business records; confidentiality.

255.05  Bond of contractor constructing public buildings; form; action by materialmen.

255.051  Public bids; check or draft as good faith deposit.

255.0515  Bids for state contracts; substitution of subcontractors.

255.0516  Bid protests by educational boards.

255.0517  Owner-controlled insurance programs for public construction projects.

255.052  Substitution of securities for amounts retained on public contracts.

255.0525  Advertising for competitive bids or proposals.

255.0705  Popular name.

255.071  Payment of subcontractors, sub-subcontractors, materialmen, and suppliers on construction contracts for public projects.

255.072  Definitions.

255.073  Timely payment for purchases of construction services.

255.074  Procedures for calculation of payment due dates.

255.075  Mandatory interest.

255.076  Award of court costs and attorney's fees.

255.077  Project closeout and payment of retainage.

255.078  Public construction retainage.

255.101  Contracts for public construction works; utilization of minority business enterprises.

255.102  Contractor utilization of minority business enterprises.

255.20  Local bids and contracts for public construction works; specification of state-produced lumber.

255.21  Special facilities for physically disabled.

255.211  Special symbol may be displayed.

255.22  Reconveyance of lands not used for purpose specified.

255.248  Definitions; ss. 255.249 and 255.25.

255.249  Department of Management Services; responsibility; department rules.

255.25  Approval required prior to construction or lease of buildings.

255.25001  Suspension or delay of specified functions, programs, and requirements relating to governmental operations.

255.2501  Lease of space financed with local government obligations.

255.2502  Contracts which require annual appropriation; contingency statement.

255.2503  Contracts for lease of buildings; prohibited provisions.

255.251  Energy Conservation in Buildings Act; short title.

255.252  Findings and intent.

255.253  Definitions; ss. 255.251-255.258.

255.254  No facility constructed or leased without life-cycle costs.

255.255  Life-cycle costs.

255.256  Energy performance index.

255.257  Energy management; buildings occupied by state agencies.

255.258  Shared savings financing of energy conservation in state-owned buildings.

255.259  Xeriscape landscaping on public property.

255.28  Department authority to acquire land with or for facility thereon.

255.29  Construction contracts; department rules.

255.30  Fixed capital outlay projects; department rules; delegation of supervisory authority; delegation of responsibility for accounting records.

255.31  Authority to the Department of Management Services to manage construction projects for state and local governments.

255.40  Use of asbestos in new public buildings or buildings newly constructed for lease to governmental entities; prohibition.

255.45  Correction of firesafety violations in certain state-owned property.

255.451  Electronic firesafety and security system.

255.501  Building and Facilities Act; short title.

255.502  Definitions; ss. 255.501-255.525.

255.503  Powers of the Department of Management Services.

255.504  Use of facilities.

255.505  Creation of the pool.

255.506  Facilities in pool.

255.507  Determination of qualified facilities.

255.508  Participation in pool.

255.509  Request for advisory statement.

255.51  Determination of rental rates.

255.511  Factors to be considered in establishing rental rates.

255.513  Powers of the Division of Bond Finance and the Department of Management Services.

255.514  Division of Bond Finance; revenue bonds.

255.515  Issuance of obligations by the division.

255.516  Security for payment of obligations.

255.517  Anticipation obligations.

255.518  Obligations; purpose, terms, approval, limitations.

255.519  Variable rate obligations.

255.52  Approval by State Board of Administration.

255.521  Failure of payment.

255.522  State and political subdivisions not liable on obligations.

255.523  Exemption from taxes.

255.524  Obligations issued constitute legal investments.

255.525  Inconsistent provisions of other laws superseded.

255.551  Definitions; ss. 255.551-255.565.

255.552  Asbestos management program.

255.553  Survey required.

255.5535  Exemptions from asbestos survey requirements.

255.555  Records.

255.556  Asbestos assessment.

255.557  Operation and maintenance plans.

255.558  Conflict of interest.

255.559  Liability of asbestos consultants; indemnification and hold-harmless agreements.

255.56  Insurance.

255.561  Safety requirements.

255.562  Project completion.

255.563  Rules; ¹Department of Labor and Employment Security.

255.60  Special contracts with charitable youth organizations.

255.01  Proceeds of insurance may be used to replace property destroyed.--When any state, county, municipal, or other public property of this state is destroyed or partially destroyed, by fire or otherwise, upon which there is insurance, the proceeds of such insurance, when collected, may be used by the officer having the supervision of the property destroyed, for the purpose of construction to replace such property or for the repair thereof.

History.--s. 1, ch. 6184, 1911; RGS 1203; CGL 1680.

255.02  Boards authorized to replace buildings destroyed by fire.--The Department of Management Services, the ¹Board of Regents of the Department of Education, or any other board or person having the direct supervision and control of any state building or state property, may have rebuilt or replaced, out of the proceeds from the fire insurance on such buildings or property, any buildings or property owned by the state, which may be destroyed in whole or in part by fire.

History.--s. 1, ch. 6518, 1913; RGS 1204; CGL 1681; s. 2, ch. 63-204; ss. 15, 22, 35, ch. 69-106; s. 174, ch. 92-279; s. 55, ch. 92-326.

¹Note.--Abolished by s. 3, ch. 2001-170.

255.03  Proceeds of insurance to be paid into State Treasury; disbursement of funds.--

(1)  The proceeds from the insurance of any state building or state property covered by insurance which may be destroyed in whole or in part by fire, or other damage, shall be paid into the State Treasury and constitute a fund for the rebuilding or replacing of such property, and the Chief Financial Officer may draw his or her warrant for such amounts, not to exceed the proceeds so paid in, as may be approved by the board or persons having the direct supervision and control of such buildings or property for the purpose of rebuilding or replacing the same.

(2)  The provisions of this section shall not apply to proceeds received from insurance carried by a lessee of a donated building which was under lease at the time of donation and is not to be replaced. Such proceeds received by a board or agency of the state may be used by that board or agency for any purpose or function authorized by law.

History.--s. 2, ch. 6518, 1913; RGS 1205; CGL 1682; s. 1, ch. 61-140; s. 145, ch. 95-148; s. 273, ch. 2003-261.

255.04  Preference to home industries in building public buildings.--Every official board in the state, whether of the state, a county, or a municipality, which may be charged with the duty of erecting or constructing any public administrative or institutional building shall give preference, in the purchase of material and in letting contracts for the construction of such building, to materialmen, contractors, builders, architects, and laborers who reside within the state, whenever such material can be purchased or the services of such materialmen, contractors, builders, architects, and laborers can be employed at no greater expense than that which would obtain if such purchase was made from, or contract let or employment given to, a person residing beyond the limits of the state. However, this section in no way prohibits the right of any such official board to compare the quality of materials proposed for purchase and to compare the qualifications, character, responsibility, and fitness of materialmen, contractors, builders, and architects proposed for employment in its consideration of the purchase of materials or employment of persons. Notwithstanding the foregoing, no county official, board of county commissioners, school board, city council or city council members, or other public official, state board, or state agency charged with the letting of contracts or purchase of materials for the construction, modification, alteration, or repair of any publicly owned facility may specify the use of materials or systems by a sole source, unless:

(1)  The governmental body, after consideration of all available alternative materials and systems, determines that the specification of a sole material or system is justifiable based upon its cost or interchangeability;

(2)  The sole source specification has been recommended by the architect or engineer of record; and

(3)  The consideration by, and the justifications of, the governmental body are documented, in writing, in the project file.

History.--s. 1, ch. 9146, 1923; CGL 1686; s. 2, ch. 83-266; s. 1, ch. 84-288; s. 146, ch. 95-148.

255.041  Separate specifications for building contracts.--Every officer, board, department, commission or commissions charged with the duty of preparing specifications or awarding or entering into contract for the erection, construction, or altering of buildings for the state, when the entire cost of such work shall exceed $10,000, may have prepared separate specifications for each of the following branches of work to be performed:

(1)  Heating and ventilating and accessories.

(2)  Plumbing and gas fitting and accessories.

(3)  Electrical installations.

(4)  Air-conditioning, for the purpose of comfort cooling by the lowering of temperature, and accessories.

All such specifications may be so drawn as to permit separate and independent bidding upon each of the classes of work enumerated in the above subdivisions. All contracts hereafter awarded by the state or a department, board, commissioner, or officer thereof, for the erection, construction or alteration of buildings, or any part thereof, may award the respective work specified in the above subdivisions separately to responsible and reliable persons, firms or corporations regularly engaged in their respective line of work; provided, however, that all or any part of the work specified in the above subdivisions may be awarded to the same contractor.

History.--s. 1, ch. 25397, 1949.

255.042  Shelter in public buildings.--

(1)  It shall be the policy of the state that fallout protection be incorporated to the fullest practical extent in all public buildings of the state and its political subdivisions, which would have a floor area capable of sheltering 100 or more persons in order to provide protection against radiation hazards for the greatest number of persons, including employees of state and local government, in the event of nuclear attack.

(2)  Every officer, department, board, agency or commission of the state, or of the political subdivisions thereof, responsible for the preparation of, or contracting for, plans and specifications for new public buildings, or for the substantial modification of or additions to existing public buildings, may require that the architect, architect-engineer firm, or other person or persons involved in the design of such buildings, provide a minimum protection factor of 40-to-1 or such protection as is possible within available funds in such design, or provide for consideration at the same time as the basic plan, alternate plans affording this protection.

(3)  The Department of Community Affairs shall, in those cases in which the architect-engineer firm does not possess the specialized training required for the inclusion of fallout protection in building design and upon request from the architect-engineer concerned or the responsible state or local agency, provide, at no cost to the architect-engineer or agency, professional development service to increase fallout protection through shelter slanting and cost-reduction techniques.

(4)  Nothing in this act shall be construed as establishing a mandatory requirement for the incorporation of fallout shelter in the construction of, modification of, or addition to the public buildings concerned. It is mandatory, however, that the incorporation of such protection be given every consideration through acceptable shelter slanting and cost-reduction techniques. The responsible state or local official shall determine whether cost, or other related factors, precludes or makes impracticable the incorporation of fallout shelter in public buildings. Further, the Department of Community Affairs may waive the requirement for consideration of shelter in those cases where presently available shelter spaces equal or exceed the requirements of the area concerned.

(5)  Nothing in this act shall apply to school buildings erected by the school board.

History.--s. 1, ch. 67-88; ss. 18, 35, ch. 69-106; s. 1, ch. 69-300; s. 25, ch. 81-167; s. 23, ch. 83-55.

255.043  Art in state buildings.--

(1)  Each appropriation for the original construction of a state building which provides public access shall include an amount of up to 0.5 percent of the total appropriation for the construction of the building, not to exceed $100,000, to be used for the acquisition of works of art produced by, but not limited to, Florida artists or craftspersons. Those works of art acquired shall be displayed for viewing in public areas in the interior or on the grounds or the exterior of the building and not in private offices or areas with limited public access.

(2)  The Department of Management Services, the ¹Board of Regents, or other state agencies receiving appropriations for original constructions shall notify the Florida Arts Council and the user agency of any construction project which is eligible under the provisions of this section. The Department of Management Services, the ¹Board of Regents, or other state agency shall determine the amount to be made available for purchase or commission of works of art for each project and shall report these amounts to the Florida Arts Council and the user agency. Payments therefor shall be made from funds appropriated for fixed capital outlay according to law.

(3)  The selection of artists or craftspersons shall be the responsibility of the user agency. The final approval of any recommendation for the purchase of or commissioning of works of art shall be consistent with the art selection process pursuant to rule promulgated by the Department of State. The approval of any invoice for payment for any purchase of or commissioning of works of art shall be the responsibility of the user agency.

(4)  The Department of State shall be authorized to promulgate rules to implement this section.

History.--s. 1, ch. 79-188; s. 125, ch. 83-217; s. 1, ch. 90-224; s. 13, ch. 90-267; s. 5, ch. 91-429; s. 175, ch. 92-279; s. 55, ch. 92-326; s. 147, ch. 95-148; s. 2, ch. 95-235; s. 1, ch. 2000-208.

¹Note.--Abolished by s. 3, ch. 2001-170.

255.045  Cleanup after events held on public property.--

(1)  Any person who sponsors or promotes an event to be held on or within any public property or facility in the state must reasonably protect such property or facility and, after the event, must provide for all necessary cleanup, repair, and restoration of such property or facility to its condition prior to the event, so that such public property or facility is suitable for normal use. The cleanup, repair, and restoration must be accomplished within 15 days after the date the event is concluded.

(2)  This section does not supersede any laws, rules, ordinances, or properly adopted policies the requirements of which are more stringent than the requirements imposed by this section.

(3)  A violation of this section is a noncriminal violation, punishable by a fine not to exceed $500 per day, to begin on the day after the 15-day cleanup period has expired. The imposition of the fine against any person does not abrogate that person's duty to pay any cleanup or restoration costs resulting from the event.

History.--ss. 1, 2, 3, ch. 89-73.

255.047  Publicly owned or operated convention centers, sports stadiums, sports arenas, coliseums, or auditoriums; booking business records; confidentiality.--

(1)  As used in this section:

(a)  "Booking business records" means client calendars, client lists, exhibitor lists, and marketing files. The term does not include contract negotiation documents, lease agreements, rental rates, event invoices, event work orders, ticket sales information, box office records, attendance figures, payment schedules, certificates of insurance, accident reports, incident reports, or correspondence specific to a confirmed event.

(b)  "Client calendar" means a schedule of events and a listing of the space reserved for such events that have been scheduled or tentatively scheduled to be held on a date more than 24 months in the future from whatever date is the current date.

(c)  "Client list" means a list of names, addresses, and contact persons for selected, prequalified, and potential clients.

(d)  "Exhibitor list" means a list of names, addresses, and contact persons for individual exhibitors at an exhibition.

(e)  "Marketing file" means proprietary information on the booking history, location, attendance, space requirement, and other qualifying information for a potential client.

(2)  The booking business records of a publicly owned or publicly operated convention center, sports stadium, sports arena, coliseum, or auditorium are exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Nothing in this section shall prohibit the Department of Revenue from obtaining any booking business records or related information at the department's request if necessary for the department to administer its duties.

History.--s. 1, ch. 90-63; s. 1, ch. 95-118; s. 110, ch. 96-406.

255.05  Bond of contractor constructing public buildings; form; action by materialmen.--

(1)(a)  Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, or other public authority, for the construction of a public building, for the prosecution and completion of a public work, or for repairs upon a public building or public work shall be required, before commencing the work or before recommencing the work after a default or abandonment, to execute, deliver to the public owner, and record in the public records of the county where the improvement is located, a payment and performance bond with a surety insurer authorized to do business in this state as surety. A public entity may not require a contractor to secure a surety bond under this section from a specific agent or bonding company. The bond must state on its front page: the name, principal business address, and phone number of the contractor, the surety, the owner of the property being improved, and, if different from the owner, the contracting public entity; the contract number assigned by the contracting public entity; and a description of the project sufficient to identify it, such as a legal description or the street address of the property being improved, and a general description of the improvement. Such bond shall be conditioned upon the contractor's performance of the construction work in the time and manner prescribed in the contract and promptly making payments to all persons defined in s. 713.01 who furnish labor, services, or materials for the prosecution of the work provided for in the contract. Any claimant may apply to the governmental entity having charge of the work for copies of the contract and bond and shall thereupon be furnished with a certified copy of the contract and bond. The claimant shall have a right of action against the contractor and surety for the amount due him or her, including unpaid finance charges due under the claimant's contract. Such action shall not involve the public authority in any expense. When such work is done for the state and the contract is for $100,000 or less, no payment and performance bond shall be required. At the discretion of the official or board awarding such contract when such work is done for any county, city, political subdivision, or public authority, any person entering into such a contract which is for $200,000 or less may be exempted from executing the payment and performance bond. When such work is done for the state, the Secretary of the Department of Management Services may delegate to state agencies the authority to exempt any person entering into such a contract amounting to more than $100,000 but less than $200,000 from executing the payment and performance bond. In the event such exemption is granted, the officer or officials shall not be personally liable to persons suffering loss because of granting such exemption. The Department of Management Services shall maintain information on the number of requests by state agencies for delegation of authority to waive the bond requirements by agency and project number and whether any request for delegation was denied and the justification for the denial. Any provision in a payment bond furnished for public work contracts as provided by this subsection which restricts the classes of persons as defined in s. 713.01 protected by the bond or the venue of any proceeding relating to such bond is unenforceable.

(b)  The Department of Management Services shall adopt rules with respect to all contracts for $200,000 or less, to provide:

1.  Procedures for retaining up to 10 percent of each request for payment submitted by a contractor and procedures for determining disbursements from the amount retained on a pro rata basis to laborers, materialmen, and subcontractors, as defined in s. 713.01.

2.  Procedures for requiring certification from laborers, materialmen, and subcontractors, as defined in s. 713.01, prior to final payment to the contractor that such laborers, materialmen, and subcontractors have no claims against the contractor resulting from the completion of the work provided for in the contract.

The state shall not be held liable to any laborer, materialman, or subcontractor for any amounts greater than the pro rata share as determined under this section.

¹(2)(a)1.  If a claimant is no longer furnishing labor, services, or materials on a project, a contractor or the contractor's agent or attorney may elect to shorten the prescribed time in this paragraph within which an action to enforce any claim against a payment bond provided pursuant to this section may be commenced by recording in the clerk's office a notice in substantially the following form:

NOTICE OF CONTEST OF CLAIM
AGAINST PAYMENT BOND


To:  (Name and address of claimant) 

You are notified that the undersigned contests your notice of nonpayment, dated _______________, __________, and served on the undersigned on _______________, __________, and that the time within which you may file suit to enforce your claim is limited to 60 days after the date of service of this notice.

DATED on _______________, __________.


Signed: (Contractor or Attorney) 


The claim of any claimant upon whom such notice is served and who fails to institute a suit to enforce his or her claim against the payment bond within 60 days after service of such notice shall be extinguished automatically. The clerk shall mail a copy of the notice of contest to the claimant at the address shown in the notice of nonpayment or most recent amendment thereto and shall certify to such service on the face of such notice and record the notice. Service is complete upon mailing.

2.  A claimant, except a laborer, who is not in privity with the contractor shall, before commencing or not later than 45 days after commencing to furnish labor, materials, or supplies for the prosecution of the work, furnish the contractor with a notice that he or she intends to look to the bond for protection. A claimant who is not in privity with the contractor and who has not received payment for his or her labor, materials, or supplies shall deliver to the contractor and to the surety written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. The notice of nonpayment may be served at any time during the progress of the work or thereafter but not before 45 days after the first furnishing of labor, services, or materials, and not later than 90 days after the final furnishing of the labor, services, or materials by the claimant or, with respect to rental equipment, not later than 90 days after the date that the rental equipment was last on the job site available for use. Any notice of nonpayment served by a claimant who is not in privity with the contractor which includes sums for retainage must specify the portion of the amount claimed for retainage. No action for the labor, materials, or supplies may be instituted against the contractor or the surety unless both notices have been given. Notices required or permitted under this section may be served in accordance with s. 713.18. A claimant may not waive in advance his or her right to bring an action under the bond against the surety. In any action brought to enforce a claim against a payment bond under this section, the prevailing party is entitled to recover a reasonable fee for the services of his or her attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party's costs, as allowed in equitable actions. The time periods for service of a notice of nonpayment or for bringing an action against a contractor or a surety shall be measured from the last day of furnishing labor, services, or materials by the claimant and shall not be measured by other standards, such as the issuance of a certificate of occupancy or the issuance of a certificate of substantial completion.

(b)  When a person is required to execute a waiver of his or her right to make a claim against the payment bond in exchange for, or to induce payment of, a progress payment, the waiver may be in substantially the following form:

WAIVER OF RIGHT TO CLAIM
AGAINST THE PAYMENT BOND
(PROGRESS PAYMENT)

The undersigned, in consideration of the sum of $_____, hereby waives its right to claim against the payment bond for labor, services, or materials furnished through  (insert date)  to  (insert the name of your customer)  on the job of  (insert the name of the owner) , for improvements to the following described project:

(description of project)


This waiver does not cover any retention or any labor, services, or materials furnished after the date specified.

DATED ON __________, _____.

 (Claimant) 

By:_______________

(c)  When a person is required to execute a waiver of his or her right to make a claim against the payment bond, in exchange for, or to induce payment of, the final payment, the waiver may be in substantially the following form:

WAIVER OF RIGHT TO CLAIM
AGAINST THE PAYMENT BOND (FINAL PAYMENT)

The undersigned, in consideration of the final payment in the amount of $_____, hereby waives its right to claim against the payment bond for labor, services, or materials furnished to  (insert the name of your customer)  on the job of  (insert the name of the owner) , for improvements to the following described project:

(description of project)

DATED ON __________, _____.

 (Claimant) 

By:_______________

(d)  A person may not require a claimant to furnish a waiver that is different from the forms in paragraphs (b) and (c).

(e)  A claimant who executes a waiver in exchange for a check may condition the waiver on payment of the check.

(f)  A waiver that is not substantially similar to the forms in this subsection is enforceable in accordance with its terms.

(3)  The bond required in subsection (1) may be in substantially the following form:

PUBLIC CONSTRUCTION BOND

Bond No. (enter bond number) 

BY THIS BOND, We _____, as Principal and _____, a corporation, as Surety, are bound to _____, herein called Owner, in the sum of $_____, for payment of which we bind ourselves, our heirs, personal representatives, successors, and assigns, jointly and severally.

THE CONDITION OF THIS BOND is that if Principal:

1.  Performs the contract dated _____, _____, between Principal and Owner for construction of _____, the contract being made a part of this bond by reference, at the times and in the manner prescribed in the contract; and

2.  Promptly makes payments to all claimants, as defined in Section 255.05(1), Florida Statutes, supplying Principal with labor, materials, or supplies, used directly or indirectly by Principal in the prosecution of the work provided for in the contract; and

3.  Pays Owner all losses, damages, expenses, costs, and attorney's fees, including appellate proceedings, that Owner sustains because of a default by Principal under the contract; and

4.  Performs the guarantee of all work and materials furnished under the contract for the time specified in the contract, then this bond is void; otherwise it remains in full force.

Any action instituted by a claimant under this bond for payment must be in accordance with the notice and time limitation provisions in Section 255.05(2), Florida Statutes.

Any changes in or under the contract documents and compliance or noncompliance with any formalities connected with the contract or the changes does not affect Surety's obligation under this bond.

DATED ON _____, _____.

 (Name of Principal) 

By  (As Attorney in Fact) 

 (Name of Surety) 

(4)  The payment bond provisions of all bonds required by subsection (1) shall be construed and deemed statutory payment bonds furnished pursuant to this section and such bonds shall not under any circumstances be converted into common law bonds.

(5)  In addition to the provisions of chapter 47, any action authorized under this section may be brought in the county in which the public building or public work is being constructed or repaired. This subsection shall not apply to an action instituted prior to May 17, 1977.

(6)  All payment bond forms used by a public owner and all payment bonds executed pursuant to this section by a surety shall make reference to this section by number and shall contain reference to the notice and time limitation provisions in subsection (2).

(7)  In lieu of the bond required by this section, a contractor may file with the state, county, city, or other political authority an alternative form of security in the form of cash, a money order, a certified check, a cashier's check, an irrevocable letter of credit, or a security of a type listed in part II of chapter 625. Any such alternative form of security shall be for the same purpose and be subject to the same conditions as those applicable to the bond required by this section. The determination of the value of an alternative form of security shall be made by the appropriate state, county, city, or other political subdivision.

(8)  When a contractor has furnished a payment bond pursuant to this section, he or she may, when the state, county, municipality, political subdivision, or other public authority makes any payment to the contractor or directly to a claimant, serve a written demand on any claimant who is not in privity with the contractor for a written statement under oath of his or her account showing the nature of the labor or services performed and to be performed, if any; the materials furnished; the materials to be furnished, if known; the amount paid on account to date; the amount due; and the amount to become due, if known, as of the date of the statement by the claimant. Any such demand to a claimant who is not in privity with the contractor must be served on the claimant at the address and to the attention of any person who is designated to receive the demand in the notice to contractor served by the claimant. The failure or refusal to furnish the statement does not deprive the claimant of his or her rights under the bond if the demand is not served at the address of the claimant or directed to the attention of the person designated to receive the demand in the notice to contractor. The failure to furnish the statement within 30 days after the demand, or the furnishing of a false or fraudulent statement, deprives the claimant who fails to furnish the statement, or who furnishes the false or fraudulent statement, of his or her rights under the bond. If the contractor serves more than one demand for statement of account on a claimant and none of the information regarding the account has changed since the claimant's last response to a demand, the failure or refusal to furnish such statement does not deprive the claimant of his or her rights under the bond. The negligent inclusion or omission of any information deprives the claimant of his or her rights under the bond to the extent that the contractor can demonstrate prejudice from such act or omission by the claimant. The failure to furnish a response to a demand for statement of account does not affect the validity of any claim on the bond being enforced in a lawsuit filed before the date the demand for statement of account is received by the claimant.

(9)  On any public works project for which the public authority requires a performance and payment bond, suits at law and in equity may be brought and maintained by and against the public authority on any contract claim arising from breach of an express provision or an implied covenant of a written agreement or a written directive issued by the public authority pursuant to the written agreement. In any such suit, the public authority and the contractor shall have all of the same rights and obligations as a private person under a like contract except that no liability may be based on an oral modification of either the written contract or written directive. Nothing herein shall be construed to waive the sovereign immunity of the state and its political subdivisions from equitable claims and equitable remedies. The provisions of this subsection shall apply only to contracts entered into on or after July 1, 1999.

¹(10)  An action, except an action for recovery of retainage, must be instituted against the contractor or the surety on the payment bond or the payment provisions of a combined payment and performance bond within 1 year after the performance of the labor or completion of delivery of the materials or supplies. An action for recovery of retainage must be instituted against the contractor or the surety within 1 year after the performance of the labor or completion of delivery of the materials or supplies; however, such an action may not be instituted until one of the following conditions is satisfied:

(a)  The public entity has paid out the claimant's retainage to the contractor, and the time provided under s. 218.735 or s. 255.073(3) for payment of that retainage to the claimant has expired;

(b)  The claimant has completed all work required under its contract and 70 days have passed since the contractor sent its final payment request to the public entity; or

(c)  At least 160 days have passed since reaching substantial completion of the construction services purchased, as defined in the contract, or if not defined in the contract, since reaching beneficial occupancy or use of the project.

(d)  The claimant has asked the contractor, in writing, for any of the following information and the contractor has failed to respond to the claimant's request, in writing, within 10 days after receipt of the request:

1.  Whether the project has reached substantial completion, as that term is defined in the contract, or if not defined in the contract, if beneficial occupancy or use of the project has occurred.

2.  Whether the contractor has received payment of the claimant's retainage, and if so, the date the retainage was received by the contractor.

3.  Whether the contractor has sent its final payment request to the public entity, and if so, the date on which the final payment request was sent.

If none of the conditions described in paragraph (a), paragraph (b), paragraph (c), or paragraph (d) is satisfied and an action for recovery of retainage cannot be instituted within the 1-year limitation period set forth in this subsection, this limitation period shall be extended until 120 days after one of these conditions is satisfied.

History.--s. 1, ch. 6867, 1915; RGS 3533; s. 1, ch. 10035, 1925; CGL 5397; s. 1, ch. 59-491; s. 1, ch. 63-437; s. 1, ch. 71-47; ss. 1, 2, ch. 77-40; s. 1, ch. 77-78; s. 1, ch. 77-81; s. 1, ch. 80-32; s. 1, ch. 80-54; s. 1, ch. 82-196; s. 2, ch. 84-288; s. 2, ch. 85-130; s. 2, ch. 88-397; s. 21, ch. 90-109; s. 4, ch. 91-162; s. 176, ch. 92-279; s. 2, ch. 92-286; s. 55, ch. 92-326; s. 1, ch. 93-96; s. 5, ch. 94-322; s. 849, ch. 95-148; s. 25, ch. 95-196; s. 1, ch. 97-219; s. 1, ch. 98-135; s. 20, ch. 99-6; s. 33, ch. 99-13; s. 4, ch. 99-345; s. 2, ch. 99-386; s. 2, ch. 2001-118; s. 3, ch. 2001-211; s. 1, ch. 2005-218; s. 1, ch. 2005-227; s. 13, ch. 2005-230.

¹Note.--Section 16, ch. 2005-230, provides that "[n]either the amendments to sections 95.11, 218.70, 218.72, 218.735, and 255.071, Florida Statutes, and subsection (2) of section 255.05, Florida Statutes, as provided in this act, nor subsection (10) of section 255.05, Florida Statutes, and section 255.078, Florida Statutes, as created by this act, apply to any existing construction contract pending approval by a local governmental entity or public entity, or to any project advertised for bid by the local governmental entity or public entity, on or before October 1, 2005."

255.051  Public bids; check or draft as good faith deposit.--Whenever any form of bid of the state or any county or municipality thereof or any department or agency of the state, county or municipality or any other public body or institution shall specify that a good faith deposit shall be made by way of a certified check accompanying such bid, such requirement shall 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.

History.--s. 1, ch. 27999, 1953.

255.0515  Bids for state contracts; substitution of subcontractors.--With respect to state contracts let pursuant to competitive bidding, whether under chapter 1013, relating to educational facilities, or this chapter, relating to public buildings, the contractor shall not remove or replace subcontractors listed in the bid subsequent to the lists being made public at the bid opening, except upon good cause shown.

History.--s. 1, ch. 78-389; s. 928, ch. 2002-387.

255.0516  Bid protests by educational boards.--With respect to state contracts and bids pursuant to competitive bidding, whether under chapter 1013, relating to educational facilities, or under this chapter, relating to public buildings, if a school board, a community college board of trustees, or a state university board of trustees uses procedures pursuant to chapter 120 for bid protests, the board may require the protestor to post a bond amounting to:

(1)  Twenty-five thousand dollars or 2 percent of the lowest accepted bid, whichever is greater, for projects valued over $500,000; and

(2)  Five percent of the lowest accepted bid for all other projects,

conditioned upon payment of all costs and fees which may be adjudged against the protestor in the administrative hearing. If at the hearing the agency prevails, it shall recover all costs and attorney's fees from the protestor; if the protestor prevails, the protestor shall recover from the agency all costs and attorney's fees.

History.--s. 27, ch. 95-269; s. 929, ch. 2002-387.

255.0517  Owner-controlled insurance programs for public construction projects.--

(1)  DEFINITIONS.--As used in this section, the term:

(a)  "Owner-controlled insurance program" means a consolidated insurance program or series of insurance policies issued to a public agency that may provide one or more of the following types of insurance coverage for any contractor or subcontractor working at specified or multiple contracted work sites of a public construction project: general liability, property damage excluding coverage for damage to real property, workers' compensation, employer's liability, or pollution liability coverage.

(b)  "Specified contracted work site" means construction being performed during one or more fiscal years at one site or a series of contiguous sites separated only by a street, roadway, waterway, or railroad right-of-way or along a continuous system for the provision for water and power.

(c)  "Multiple contracted work site" means construction being performed at multiple sites during one or more fiscal years that is part of an ongoing capital infrastructure improvement program or involves the construction of one or more public schools.

(2)  PURCHASE REQUIREMENTS.--A state agency, political subdivision, state university, community college, airport authority, or other public agency in this state, or any instrumentality thereof, may only purchase an owner-controlled insurance program in connection with a public construction project if it is determined necessary and in the best interest of the public agency and if all of the following conditions are met:

(a)  The estimated total cost of the project is:

1.  Seventy-five million dollars or more;

2.  Thirty million dollars or more, if the project is for the construction or renovation of two or more public schools during a fiscal year; or

3.  Ten million dollars or more, if the project is for the construction or renovation of one public school, regardless of whether the project's duration extends beyond a fiscal year.

(b)  The program maintains completed operations insurance coverage for a term during which the coverage is reasonably commercially available, as determined by the public agency, but for no less than 5 years.

(c)  The bid or proposal specifications for the project clearly specify, for all bidders or proposers, the insurance coverage provided under the program and the minimum safety requirements that must be met.

(d)  The program does not prohibit a contractor or subcontractor from purchasing any additional insurance coverage that the contractor or subcontractor believes is necessary for protection against any liability arising out of the contract. The cost of the additional insurance must be disclosed to the public agency.

(e)  The program does not include surety insurance.

(f)  The public agency may only purchase an owner-controlled insurance policy that has a deductible or self-insured retention if the deductible or self-insured retention does not exceed $1 million per occurrence.

(g)  The public agency is responsible for payment of the applicable deductibles of all claims.

(3)  EXEMPTIONS.--This section does not apply to the following projects:

(a)  Any project of the Department of Transportation which is authorized under s. 337.11;

(b)  Any existing project or projects of a public agency which are the subject of an ongoing, owner-controlled insurance program issued before October 1, 2004; or

(c)  Any project of a public agency which is advertised by the public agency before October 1, 2004, for the purpose of receiving bids or proposals for the project.

History.--s. 1, ch. 2004-377.

255.052  Substitution of securities for amounts retained on public contracts.--

(1)  Under any contract made or awarded by the state or any county, city, or political subdivision thereof, or other public authority, the contractor may, from time to time, withdraw the whole or any portion of the amount retained for payments to the contractor pursuant to the terms of the contract, upon depositing with the Chief Financial Officer:

(a)  United States Treasury bonds, United States Treasury notes, United States Treasury certificates of indebtedness, or United States Treasury bills;

(b)  Bonds or notes of the State of Florida; or

(c)  Bonds of any political subdivision in the state; or

(d)  Cash delivered to the State Treasury for the Treasury Cash Deposit Trust Fund; or

(e)  Certificates of deposit from state or national banks or state or federal savings and loan associations in the state. Certificates of deposit shall possess the eligibility characteristics defined in s. 625.52.

No amount shall be withdrawn in excess of the market value of the securities listed in paragraphs (a), (b), and (c) at the time of withdrawal or of the par value of such securities, whichever is lower.

(2)  The Chief Financial Officer shall regularly collect all interest or income on the obligations so deposited, and shall pay the same, when and as collected, to the contractor who deposited the obligations. If the deposit is in the form of coupon bonds, the Chief Financial Officer shall deliver each coupon as it matures to the contractor.

(3)  Any amount deducted by the state or by any county, city, or political subdivision thereof, or by other public authority, pursuant to the terms of the contract, from the amounts retained for payments due the contractor shall be deducted, first from that portion of the amounts retained for which no security has been substituted, then from the proceeds of any deposited security. In the latter case, the contractor shall be entitled to receive interest, coupons, or income only from those securities which remain after such amount has been deducted.

Nothing in this section shall be construed to require the state or any county, city, or political subdivision thereof, or other public authority, to allow the contractor to withdraw the whole or any portion of the amount retained for payments to the contractor except pursuant to the terms of the contract.

History.--s. 1, ch. 70-70; s. 1, ch. 74-253; s. 5, ch. 92-87; s. 274, ch. 2003-261.

255.0525  Advertising for competitive bids or proposals.--

(1)  The solicitation of competitive bids or proposals for any state construction project that is projected to cost more than $200,000 shall be publicly advertised once in the Florida Administrative Weekly at least 21 days prior to the established bid opening. For state construction projects that are projected to cost more than $500,000, the advertisement shall be published in the Florida Administrative Weekly at least 30 days prior to the established bid opening and at least 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 prebid conference. The bids or proposals shall be received and opened publicly at the location, date, and time established in the bid or proposal advertisement. In cases of emergency, the Secretary of Management Services may alter the procedures required in this section in any manner that is reasonable under the emergency circumstances.

(2)  The solicitation of competitive bids or proposals for any county, municipality, or other political subdivision construction project that is projected to cost more than $200,000 shall be publicly advertised at least once in a newspaper of general circulation in the county where the project is located at least 21 days prior to the established bid opening and at least 5 days prior to any scheduled prebid conference. The solicitation of competitive bids or proposals for any county, municipality, or other political subdivision construction project that is projected to cost more than $500,000 shall be publicly advertised at least 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 prebid conference. Bids or proposals shall be received and opened at the location, date, and time established in the bid or proposal advertisement. In cases of emergency, the procedures required in this section may be altered by the local governmental entity in any manner that is reasonable under the emergency circumstances.

(3)  If the location, date, or time of the bid opening changes, written notice of the change must be given, as soon as practicable after the change is made, to all persons who are registered to receive any addenda to the plans and specifications.

(4)  A construction project may not be divided into more than one project for the purpose of evading the requirements in this section.

(5)  As used in this section, the term "emergency" means an unexpected turn of events that causes:

(a)  An immediate danger to the public health or safety;

(b)  An immediate danger of loss of public or private property; or

(c)  An interruption in the delivery of an essential governmental service.

History.--s. 26, ch. 95-196; s. 40, ch. 95-269.

255.0705  Popular name.--Sections 255.0705-255.078 may be cited as the "Florida Prompt Payment Act."

History.--s. 4, ch. 2005-230.

¹255.071  Payment of subcontractors, sub-subcontractors, materialmen, and suppliers on construction contracts for public projects.--

(1)  Any person, firm, or corporation who receives a payment from the state or any county, city, or political subdivision of the state, or other public authority, for the construction of a public building, for the prosecution and completion of a public work, or for repairs upon a public building or public work shall pay, in accordance with the contract terms, the undisputed contract obligations for labor, services, or materials provided on account of such improvements.

(2)  The failure to pay any undisputed obligations for such labor, services, or materials within 30 days after the date the labor, services, or materials were furnished and payment for such labor, services, or materials became due, or within the time limitations set forth in s. 255.073(3), whichever last occurs, shall entitle any person providing such labor, services, or materials to the procedures specified in subsection (3) and the remedies provided in subsection (4).

(3)  Any person providing labor, services, or materials for the construction of a public building, for the prosecution and completion of a public work, or for repairs upon a public building or public work improvements to real property may file a verified complaint alleging:

(a)  The existence of a contract for providing such labor, services, or materials to improve real property.

(b)  A description of the labor, services, or materials provided and alleging that the labor, services, or materials were provided in accordance with the contract.

(c)  The amount of the contract price.

(d)  The amount, if any, paid pursuant to the contract.

(e)  The amount that remains unpaid pursuant to the contract and the amount thereof that is undisputed.

(f)  That the undisputed amount has remained due and payable pursuant to the contract for more than 30 days after the date the labor or services were accepted or the materials were received.

(g)  That the person against whom the complaint was filed has received payment on account of the labor, services, or materials described in the complaint and, as of the date the complaint was filed, has failed to make payment within the time limitations set forth in s. 255.073(3).

(4)  After service of the complaint, the court shall conduct an evidentiary hearing on the complaint, upon not less than 15 days' written notice. The person providing labor, services, or materials is entitled to the following remedies to the extent of the undisputed amount due for labor or services performed or materials supplied, and upon proof of each allegation in the complaint:

(a)  An accounting of the use of any such payment from the person who received such payment.

(b)  A temporary injunction against the person who received the payment, subject to the bond requirements specified in the Florida Rules of Civil Procedure.

(c)  Prejudgment attachment against the person who received the payment, in accordance with each of the requirements of chapter 76.

(d)  Such other legal or equitable remedies as may be appropriate in accordance with the requirements of the law.

(5)  The remedies specified in subsection (4) must be granted without regard to any other remedy at law and without regard to whether or not irreparable damage has occurred or will occur.

(6)  The remedies specified in subsection (4) do not apply:

(a)  To the extent of a bona fide dispute regarding any portion of the contract price.

(b)  In the event the plaintiff has committed a material breach of the contract which would relieve the defendant from the obligations under the contract.

(7)  The prevailing party in any proceeding under this section is entitled to recover costs, including a reasonable attorney's fee, at trial and on appeal.

(8)  The provisions of this section shall also apply to any contract between a subcontractor and a sub-subcontractor or supplier and any contract between a sub-subcontractor and supplier on any project for the construction of a public building, for the prosecution and completion of a public work, or for repairs upon a public building or public work.

History.--s. 1, ch. 93-141; s. 5, ch. 2005-230.

¹Note.--Section 16, ch. 2005-230, provides that "[n]either the amendments to sections 95.11, 218.70, 218.72, 218.735, and 255.071, Florida Statutes, and subsection (2) of section 255.05, Florida Statutes, as provided in this act, nor subsection (10) of section 255.05, Florida Statutes, and section 255.078, Florida Statutes, as created by this act, apply to any existing construction contract pending approval by a local governmental entity or public entity, or to any project advertised for bid by the local governmental entity or public entity, on or before October 1, 2005."

255.072  Definitions.--As used in ss. 255.073-255.078, the term:

(1)  "Agent" means project architect, project engineer, or any other agency or person acting on behalf of a public entity.

(2)  "Construction services" means all labor, services, and materials provided in connection with the construction, alteration, repair, demolition, reconstruction, or any other improvements to real property. The term "construction services" does not include contracts or work performed for the Department of Transportation.

(3)  "Contractor" means any person who contracts directly with a public entity to provide construction services.

(4)  "Payment request" means a request for payment for construction services which conforms with all statutory requirements and with all requirements specified by the public entity to which the payment request is submitted.

(5)  "Public entity" means the state, or any office, board, bureau, commission, department, branch, division, or institution thereof, but does not include a local governmental entity as defined in s. 218.72.

(6)  "Purchase" means the purchase of construction services.

History.--s. 6, ch. 2005-230.

255.073  Timely payment for purchases of construction services.--

(1)  Except as otherwise provided in ss. 255.072-255.078, s. 215.422 governs the timely payment for construction services by a public entity.

(2)  If a public entity disputes a portion of a payment request, the undisputed portion must be timely paid.

(3)  When a contractor receives payment from a public entity for labor, services, or materials furnished by subcontractors and suppliers hired by the contractor, the contractor shall remit payment due to those subcontractors and suppliers within 10 days after the contractor's receipt of payment. When a subcontractor receives payment from a contractor for labor, services, or materials furnished by subcontractors and suppliers hired by the subcontractor, the subcontractor shall remit payment due to those subcontractors and suppliers within 7 days after the subcontractor's receipt of payment. This subsection does not prohibit a contractor or subcontractor from disputing, pursuant to the terms of the relevant contract, all or any portion of a payment alleged to be due to another party if the contractor or subcontractor notifies the party whose payment is disputed, in writing, of the amount in dispute and the actions required to cure the dispute. The contractor or subcontractor must pay all undisputed amounts due within the time limits imposed by this subsection.

(4)  All payments due for the purchase of construction services and not made within the applicable time limits shall bear interest at the rate specified in s. 215.422. After July 1, 2006, such payments shall bear interest at the rate of 1 percent per month, to the extent that the Chief Financial Officer's replacement project for the state's accounting and cash management systems is operational for the particular affected public entity. After January 1, 2007, all such payments due from public entity shall bear interest at the rate of 1 percent per month.

History.--s. 7, ch. 2005-230.

255.074  Procedures for calculation of payment due dates.--

(1)  Each public entity shall establish procedures whereby each payment request received by the public entity is marked as received on the date on which it is delivered to an agent or employee of the public entity or of a facility or office of the public entity.

(2)  If the terms under which a purchase is made allow for partial deliveries and a payment request is submitted for a partial delivery, the time for payment for the partial delivery must be calculated from the time of the partial delivery and the submission of the payment request.

(3)  A public entity must submit a payment request to the Chief Financial Officer for payment no more than 20 days after receipt of the payment request.

History.--s. 8, ch. 2005-230.

255.075  Mandatory interest.--A contract between a public entity and a contractor may not prohibit the collection of late payment interest charges authorized under s. 255.073(4).

History.--s. 9, ch. 2005-230.

255.076  Award of court costs and attorney's fees.--In an action to recover amounts due for construction services purchased by a public entity, the court shall award court costs and reasonable attorney's fees, including fees incurred through any appeal, to the prevailing party, if the court finds that the nonprevailing party withheld any portion of the payment that is the subject of the action without any reasonable basis in law or fact to dispute the prevailing party's claim to those amounts.

History.--s. 10, ch. 2005-230.

255.077  Project closeout and payment of retainage.--

(1)  Each contract for construction services between a public entity and a contractor must provide for the development of a list of items required to render complete, satisfactory, and acceptable the construction services purchased by the public entity. The contract must specify the process for the development of the list, including responsibilities of the public entity and the contractor in developing and reviewing the list and a reasonable time for developing the list, as follows:

(a)  For construction projects having an estimated cost of less than $10 million, within 30 calendar days after reaching substantial completion of the construction services purchased as defined in the contract, or, if not defined in the contract, upon reaching beneficial occupancy or use; or

(b)  For construction projects having an estimated cost of $10 million or more, within 30 calendar days, unless otherwise extended by contract not to exceed 60 calendar days, after reaching substantial completion of the construction services purchased as defined in the contract, or, if not defined in the contract, upon reaching beneficial occupancy or use.

(2)  If the contract between the public entity and the contractor relates to the purchase of construction services on more than one building or structure, or involves a multiphased project, the contract must provide for the development of a list of items required to render complete, satisfactory, and acceptable all the construction services purchased pursuant to the contract for each building, structure, or phase of the project within the time limitations provided in subsection (1).

(3)  The failure to include any corrective work or pending items not yet completed on the list developed pursuant to subsection (1) or subsection (2) does not alter the responsibility of the contractor to complete all the construction services purchased pursuant to the contract.

(4)  Upon completion of all items on the list, the contractor may submit a payment request for all remaining retainage withheld by the public entity pursuant to s. 255.078. If a good faith dispute exists as to whether one or more items identified on the list have been completed pursuant to the contract, the public entity may continue to withhold an amount not to exceed 150 percent of the total costs to complete such items.

(5)  All items that require correction under the contract and that are identified after the preparation and delivery of the list remain the obligation of the contractor as defined by the contract.

(6)  Warranty items may not affect the final payment of retainage as provided in this section or as provided in the contract between the contractor and its subcontractors and suppliers.

(7)  Retainage may not be held by a public entity or a contractor to secure payment of insurance premiums under a consolidated insurance program or series of insurance policies issued to a public entity or a contractor for a project or group of projects, and the final payment of retainage as provided in this section may not be delayed pending a final audit by the public entity's or contractor's insurance provider.

(8)  If a public entity fails to comply with its responsibilities to develop the list required under subsection (1) or subsection (2), as defined in the contract, within the time limitations provided in subsection (1), the contractor may submit a payment request for all remaining retainage withheld by the public entity pursuant to s. 255.078. The public entity need not pay or process any payment request for retainage if the contractor has, in whole or in part, failed to cooperate with the public entity in the development of the list or failed to perform its contractual responsibilities, if any, with regard to the development of the list or if s. 255.078(6) applies.

History.--s. 11, ch. 2005-230.

¹255.078  Public construction retainage.--

(1)  With regard to any contract for construction services, a public entity may withhold from each progress payment made to the contractor an amount not exceeding 10 percent of the payment as retainage until 50-percent completion of such services.

(2)  After 50-percent completion of the construction services purchased pursuant to the contract, the public entity must reduce to 5 percent the amount of retainage withheld from each subsequent progress payment made to the contractor. For purposes of this section, the term "50-percent completion" has the meaning set forth in the contract between the public entity and the contractor or, if not defined in the contract, the point at which the public entity has expended 50 percent of the total cost of the construction services purchased as identified in the contract together with all costs associated with existing change orders and other additions or modifications to the construction services provided for in the contract.

(3)  After 50-percent completion of the construction services purchased pursuant to the contract, the contractor may elect to withhold retainage from payments to its subcontractors at a rate higher than 5 percent. The specific amount to be withheld must be determined on a case-by-case basis and must be based on the contractor's assessment of the subcontractor's past performance, the likelihood that such performance will continue, and the contractor's ability to rely on other safeguards. The contractor shall notify the subcontractor, in writing, of its determination to withhold more than 5 percent of the progress payment and the reasons for making that determination, and the contractor may not request the release of such retained funds from the public entity.

(4)  After 50-percent completion of the construction services purchased pursuant to the contract, the contractor may present to the public entity a payment request for up to one-half of the retainage held by the public entity. The public entity shall promptly make payment to the contractor, unless the public entity has grounds, pursuant to subsection (6), for withholding the payment of retainage. If the public entity makes payment of retainage to the contractor under this subsection which is attributable to the labor, services, or materials supplied by one or more subcontractors or suppliers, the contractor shall timely remit payment of such retainage to those subcontractors and suppliers.

(5)  Neither this section nor s. 255.077 prohibits a public entity from withholding retainage at a rate less than 10 percent of each progress payment, from incrementally reducing the rate of retainage pursuant to a schedule provided for in the contract, or from releasing at any point all or a portion of any retainage withheld by the public entity which is attributable to the labor, services, or materials supplied by the contractor or by one or more subcontractors or suppliers. If a public entity makes any payment of retainage to the contractor which is attributable to the labor, services, or materials supplied by one or more subcontractors or suppliers, the contractor shall timely remit payment of such retainage to those subcontractors and suppliers.

(6)  Neither this section nor s. 255.077 requires the public entity to pay or release any amounts that are the subject of a good faith dispute, the subject of a claim brought pursuant to s. 255.05, or otherwise the subject of a claim or demand by the public entity or contractor.

(7)  The same time limits for payment of a payment request apply regardless of whether the payment request is for, or includes, retainage.

(8)  Subsections (1)-(4) do not apply to construction services purchased by a public entity which are paid for, in whole or in part, with federal funds and are subject to federal grantor laws and regulations or requirements that are contrary to any provision of the Florida Prompt Payment Act.

(9)  This section does not apply to any construction services purchased by a public entity if the total cost of the construction services purchased as identified in the contract is $200,000 or less.

History.--s. 12, ch. 2005-230.

¹Note.--Section 16, ch. 2005-230, provides that "[n]either the amendments to sections 95.11, 218.70, 218.72, 218.735, and 255.071, Florida Statutes, and subsection (2) of section 255.05, Florida Statutes, as provided in this act, nor subsection (10) of section 255.05, Florida Statutes, and section 255.078, Florida Statutes, as created by this act, apply to any existing construction contract pending approval by a local governmental entity or public entity, or to any project advertised for bid by the local governmental entity or public entity, on or before October 1, 2005."

255.101  Contracts for public construction works; utilization of minority business enterprises.--

(1)  All county officials, boards of county commissioners, school boards, city councils, city commissioners, and all other public officers of state boards or commissions which are charged with the letting of contracts for public works and for the construction of public bridges, buildings, and other structures shall operate in accordance with s. 287.093, except that all contracts for the construction of state facilities should comply with provisions in s. 287.09451, and rules adopted pursuant thereto, for the utilization of minority business enterprises. When construction is financed in whole or in part from federal funds and where federal provisions for utilization of minority business enterprises apply, this section shall not apply.

(2)  Counties, municipalities, and special districts as defined in chapter 189, or other political subdivisions of the state are encouraged to be sensitive to the effect of job-size barriers on minority businesses. To this end, these governmental entities are encouraged to competitively award public construction projects exceeding $100,000.

History.--ss. 6, 26, ch. 94-322; s. 41, ch. 2001-61.

255.102  Contractor utilization of minority business enterprises.--

(1)  Agencies shall consider the use of price preferences, weighted preference formulas, or other preferences for construction contracts, as determined appropriate by the Office of Supplier Diversity to increase minority participation.

(2)  The Office of Supplier Diversity, in collaboration with the State University System, shall adopt rules to determine what is a "good faith effort" for purposes of contractor compliance with minority participation goals established for competitively awarded building and construction projects. Pro forma efforts shall not be considered good faith. Factors which shall be considered by the state agency in determining whether a contractor has made good faith efforts shall include, but not be limited to:

(a)  Whether the contractor attended any presolicitation or prebid meetings that were scheduled by the agency to inform minority business enterprises of contracting and subcontracting opportunities.

(b)  Whether the contractor advertised in general circulation, trade association, or minority-focus media concerning the subcontracting opportunities.

(c)  Whether the contractor provided written notice to all relevant subcontractors listed on the minority vendor list for that locality and statewide as provided by the agency as of the date of issuance of the invitation to bid, that their interest in the contract was being solicited in sufficient time to allow the minority business enterprises to participate effectively.

(d)  Whether the contractor followed up initial solicitations of interest by contacting minority business enterprises, the Office of Supplier Diversity, or minority persons who responded and provided detailed information about prebid meetings, access to plans, specifications, contractor's project manager, subcontractor bonding, if any, payment schedule, bid addenda, and other assistance provided by the contractor to enhance minority business enterprise participation.

(e)  Whether the contractor selected portions of the work to be performed by minority business enterprises in order to increase the likelihood of meeting the minority business enterprise procurement goals, including, where appropriate, breaking down contracts into economically feasible units to facilitate minority business enterprise participation under reasonable and economical conditions of performance.

(f)  Whether the contractor provided the Office of Supplier Diversity as well as interested minority business enterprises or minority persons with adequate information about the plans, specifications, and requirements of the contract or the availability of jobs at a time no later than when such information was provided to other subcontractors.

(g)  Whether the contractor negotiated in good faith with interested minority business enterprises or minority persons, not rejecting minority business enterprises or minority persons as unqualified without sound reasons based on a thorough investigation of their capabilities or imposing implausible conditions of performance on the contract.

(h)  Whether the contractor diligently seeks to replace a minority business enterprise subcontractor that is unable to perform successfully with another minority business enterprise.

(i)  Whether the contractor effectively used the services of available minority community organizations; minority contractors' groups; local, state, and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of minority business enterprises or minority persons.

(3)  If an agency considers any other criteria in determining whether a contractor has made a good faith effort, the agency shall adopt such criteria in accordance with s. 120.54, and, where required by that section, by rule, after May 31, 1994. In adopting such criteria, the agency shall identify the specific factors in as objective a manner as possible to be used to assess a contractor's performance against said criteria.

(4)  Notwithstanding the provisions of s. 287.09451 to the contrary, agencies shall monitor good faith efforts of contractors in competitively awarded building and construction projects, in accordance with rules established pursuant to this section. It is the responsibility of the contractor to exercise good faith efforts in accordance with rules established pursuant to this section, and to provide documentation necessary to assess efforts to include minority business participation.

History.--ss. 7, 26, ch. 94-322; s. 59, ch. 96-410; s. 10, ch. 98-279; s. 8, ch. 2000-286; s. 42, ch. 2001-61.

255.20  Local bids and contracts for public construction works; specification of state-produced lumber.--

(1)  A county, municipality, special district as defined in chapter 189, or other political subdivision of the state seeking to construct or improve a public building, structure, or other public construction works must competitively award to an appropriately licensed contractor each project that is estimated in accordance with generally accepted cost-accounting principles to have total construction project costs of more than $200,000. For electrical work, local government must competitively award to an appropriately licensed contractor each project that is estimated in accordance with generally accepted cost-accounting principles to have a cost of more than $50,000. As used in this section, the term "competitively award" means to award contracts based on the submission of sealed bids, proposals submitted in response to a request for proposal, proposals submitted in response to a request for qualifications, or proposals submitted for competitive negotiation. This subsection expressly allows contracts for construction management services, design/build contracts, continuation contracts based on unit prices, and any other contract arrangement with a private sector contractor permitted by any applicable municipal or county ordinance, by district resolution, or by state law. For purposes of this section, construction costs include the cost of all labor, except inmate labor, and include the cost of equipment and materials to be used in the construction of the project. Subject to the provisions of subsection (3), the county, municipality, special district, or other political subdivision may establish, by municipal or county ordinance or special district resolution, procedures for conducting the bidding process.

(a)  Notwithstanding any other law to the contrary, a county, municipality, special district as defined in chapter 189, or other political subdivision of the state seeking to construct or improve bridges, roads, streets, highways, or railroads, and services incidental thereto, at costs in excess of $250,000 may require that persons interested in performing work under contract first be certified or qualified to perform such work. Any contractor may be considered ineligible to bid by the governmental entity if the contractor is behind on completing an approved progress schedule for the governmental entity by 10 percent or more at the time of advertisement of the work. Any contractor prequalified and considered eligible by the Department of Transportation to bid to perform the type of work described under the contract shall be presumed to be qualified to perform the work described. The governmental entity may provide an appeal process to overcome that presumption with de novo review based on the record below to the circuit court.

(b)  With respect to contractors not prequalified with the Department of Transportation, the governmental entity shall publish prequalification criteria and procedures prior to advertisement or notice of solicitation. Such publications shall include notice of a public hearing for comment on such criteria and procedures prior to adoption. The procedures shall provide for an appeal process within the authority for objections to the prequalification process with de novo review based on the record below to the circuit court within 30 days.

(c)  The provisions of this subsection do not apply:

1.  When the project is undertaken to replace, reconstruct, or repair an existing facility damaged or destroyed by a sudden unexpected turn of events, such as an act of God, riot, fire, flood, accident, or other urgent circumstances, and such damage or destruction creates:

a.  An immediate danger to the public health or safety;

b.  Other loss to public or private property which requires emergency government action; or

c.  An interruption of an essential governmental service.

2.  When, after notice by publication in accordance with the applicable ordinance or resolution, the governmental entity does not receive any responsive bids or responses.

3.  To construction, remodeling, repair, or improvement to a public electric or gas utility system when such work on the public utility system is performed by personnel of the system.

4.  To construction, remodeling, repair, or improvement by a utility commission whose major contracts are to construct and operate a public electric utility system.

5.  When the project is undertaken as repair or maintenance of an existing public facility.

6.  When the project is undertaken exclusively as part of a public educational program.

7.  When the funding source of the project will be diminished or lost because the time required to competitively award the project after the funds become available exceeds the time within which the funding source must be spent.

8.  When the local government has competitively awarded a project to a private sector contractor and the contractor has abandoned the project before completion or the local government has terminated the contract.

9.  When the governing board of the local government, after public notice, conducts a public meeting under s. 286.011 and finds by a majority vote of the governing board that it is in the public's best interest to perform the project using its own services, employees, and equipment. The public notice must be published at least 14 days prior to the date of the public meeting at which the governing board takes final action to apply this subparagraph. The notice must identify the project, the estimated cost of the project, and specify that the purpose for the public meeting is to consider whether it is in the public's best interest to perform the project using the local government's own services, employees, and equipment. In deciding whether it is in the public's best interest for local government to perform a project using its own services, employees, and equipment, the governing board may consider the cost of the project, whether the project requires an increase in the number of government employees, an increase in capital expenditures for public facilities, equipment or other capital assets, the impact on local economic development, the impact on small and minority business owners, the impact on state and local tax revenues, whether the private sector contractors provide health insurance and other benefits equivalent to those provided by the local government, and any other factor relevant to what is in the public's best interest.

10.  When the governing board of the local government determines upon consideration of specific substantive criteria and administrative procedures that it is in the best interest of the local government to award the project to an appropriately licensed private sector contractor according to procedures established by and expressly set forth in a charter, ordinance, or resolution of the local government adopted prior to July 1, 1994. The criteria and procedures must be set out in the charter, ordinance, or resolution and must be applied uniformly by the local government to avoid award of any project in an arbitrary or capricious manner. This exception shall apply when all of the following occur:

a.  When the governing board of the local government, after public notice, conducts a public meeting under s. 286.011 and finds by a two-thirds vote of the governing board that it is in the public's best interest to award the project according to the criteria and procedures established by charter, ordinance, or resolution. The public notice must be published at least 14 days prior to the date of the public meeting at which the governing board takes final action to apply this subparagraph. The notice must identify the project, the estimated cost of the project, and specify that the purpose for the public meeting is to consider whether it is in the public's best interest to award the project using the criteria and procedures permitted by the preexisting ordinance.

b.  In the event the project is to be awarded by any method other than a competitive selection process, the governing board must find evidence that:

(I)  There is one appropriately licensed contractor who is uniquely qualified to undertake the project because that contractor is currently under contract to perform work that is affiliated with the project; or

(II)  The time to competitively award the project will jeopardize the funding for the project, or will materially increase the cost of the project or will create an undue hardship on the public health, safety, or welfare.

c.  In the event the project is to be awarded by any method other than a competitive selection process, the published notice must clearly specify the ordinance or resolution by which the private sector contractor will be selected and the criteria to be considered.

d.  In the event the project is to be awarded by a method other than a competitive selection process, the architect or engineer of record has provided a written recommendation that the project be awarded to the private sector contractor without competitive selection; and the consideration by, and the justification of, the government body are documented, in writing, in the project file and are presented to the governing board prior to the approval required in this paragraph.

11.  To projects subject to chapter 336.

(d)1.  If the project is to be awarded based on price, the contract must be awarded to the lowest qualified and responsive bidder in accordance with the applicable county or municipal ordinance or district resolution and in accordance with the applicable contract documents. The county, municipality, or special district may reserve the right to reject all bids and to rebid the project or elect not to proceed with the project. This subsection is not intended to restrict the rights of any local government to reject the low bid of a nonqualified or nonresponsive bidder and to award the contract to any other qualified and responsive bidder in accordance with the standards and procedures of any applicable county or municipal ordinance or any resolution of a special district.

2.  If the project uses a request for proposal or a request for qualifications, the request must be publicly advertised and the contract must be awarded in accordance with the applicable local ordinances.

3.  If the project is subject to competitive negotiations, the contract must be awarded in accordance with s. 287.055.

(e)  If a construction project greater than $200,000, or $50,000 for electrical work, is started after October 1, 1999, and is to be performed by a local government using its own employees in a county or municipality that issues registered contractor licenses and the project would require a licensed contractor under chapter 489 if performed by a private sector contractor, the local government must use a person appropriately registered or certified under chapter 489 to supervise the work.

(f)  If a construction project greater than $200,000, or $50,000 for electrical work, is started after October 1, 1999, and is to be performed by a local government using its own employees in a county that does not issue registered contractor licenses and the project would require a licensed contractor under chapter 489 if performed by a private sector contractor, the local government must use a person appropriately registered or certified under chapter 489 or a person appropriately licensed under chapter 471 to supervise the work.

(g)  Projects performed by a local government using its own services and employees must be inspected in the same manner as inspections required for work performed by private sector contractors.

(h)  A construction project provided for in this subsection may not be divided into more than one project for the purpose of evading this subsection.

(i)  This subsection does not preempt the requirements of any small-business or disadvantaged-business enterprise program or any local-preference ordinance.

(2)  The threshold amount of $200,000 for construction or $50,000 for electrical work must be adjusted by the percentage change in the Consumer Price Index from January 1, 1994, to January 1 of the year in which the project is scheduled to begin.

(3)  All county officials, boards of county commissioners, school boards, city councils, city commissioners, and all other public officers of state boards or commissions that are charged with the letting of contracts for public work, for the construction of public bridges, buildings, and other structures must always specify lumber, timber, and other forest products produced and manufactured in this state whenever such products are available and their price, fitness, and quality are equal. This subsection does not apply when plywood specified for monolithic concrete forms, when the structural or service requirements for timber for a particular job cannot be supplied by native species, or when the construction is financed in whole or in part from federal funds with the requirements that there be no restrictions as to species or place of manufacture.

(4)  Any qualified contractor or vendor who could have been awarded the project had the project been competitively bid shall have standing to challenge the propriety of the local government's actions when the local government seeks to invoke the provisions of this section. The prevailing party in such action shall be entitled to recover its reasonable attorney's fees.

History.--s. 1, ch. 61-495; s. 1, ch. 94-175; s. 4, ch. 95-310; s. 5, ch. 95-341; s. 1, ch. 99-181; s. 62, ch. 2002-20; s. 9, ch. 2003-286.

255.21  Special facilities for physically disabled.--Any building or facility intended for use by the general public which, in whole or in part, is constructed or altered or operated as a lessee, by or on behalf of the state or any political subdivision, municipality, or special district thereof or any public administrative board or authority of the state shall, with respect to the altered or newly constructed or leased portion of such building or facility, comply with standards and specifications established by part V of chapter 553.

History.--s. 1, ch. 65-493; s. 1, ch. 72-281; s. 1, ch. 73-255; s. 82, ch. 77-104; s. 1, ch. 78-166; s. 7, ch. 89-97; s. 177, ch. 92-279; s. 55, ch. 92-326; s. 16, ch. 97-296; s. 135, ch. 2000-141; s. 37, ch. 2001-186; s. 6, ch. 2001-372.

255.211  Special symbol may be displayed.--All state-owned buildings providing facilities for wheelchair users, including, but not limited to, entrance and exit facilities, shall display at all entrances the internationally recognized symbol for wheelchair users.

History.--s. 1, ch. 70-403.

255.22  Reconveyance of lands not used for purpose specified.--

(1)  In the event any party owning adjoining land conveys real property, without receipt of valuable consideration, to any municipality or county for a specific purpose or use and if such county or municipality fails to use such property for such purpose for a period of 60 consecutive months or, with respect to property conveyed on or after October 1, 1984, fails to use such property for such purpose for a period of 60 consecutive months or identify during the 60-month period the proposed use of such property in a comprehensive plan or other public facilities plan, then, upon written demand of the grantor, or grantor's successors in title owning such adjoining land, the municipality or county may execute and deliver a quitclaim deed to the party making such demand provided such party is the owner of land adjoining such property on at least one side. No such quitclaim deed shall be delivered hereunder unless the specific purpose or use to be made of the property was disclosed to the grantee at the time of delivery of the conveyance or appeared in the conveyance or in an official record of the county; provided, however, that as to any such conveyance after July 1, 1967, the specific purpose or use must appear of record.

(2)  In the event the purpose for which the property was conveyed required physical improvement or construction on such property or the maintenance thereof, any such municipality or county that fails to construct, improve, or maintain such property for the period specified in subsection (1) shall be conclusively deemed to have abandoned the property for the purpose for which it was conveyed, unless, with respect to property conveyed on or after October 1, 1984, the proposed use of such property has been identified in a comprehensive plan or other public facilities plan of the municipality or county during the 60-month period specified in subsection (1).

History.--ss. 1, 2, ch. 67-383; ss. 1, 2, 3, ch. 84-366; s. 42, ch. 93-164; s. 3, ch. 94-175; s. 3, ch. 95-297; s. 16, ch. 95-310.

Note.--Consolidation of s. 255.22 and former s. 255.23.

255.248  Definitions; ss. 255.249 and 255.25.--The following definitions shall apply when used in ss. 255.249 and 255.25:

(1)  The term "state-owned office building" means any building title to which is vested in the state and which is used by one or more executive agencies predominantly for administrative direction and support functions. This term excludes:

(a)  District or area offices established for field operations where law enforcement, military, inspections, road operations, or tourist welcoming functions are performed.

(b)  All educational facilities and institutions under the supervision of the Department of Education.

(c)  All custodial facilities and institutions used primarily for the care, custody, or treatment of wards of the state.

(d)  Buildings or spaces used for legislative activities.

(e)  Buildings purchased or constructed from agricultural or citrus trust funds.

(2)  The term "privately owned building" shall mean any building not owned by a governmental agency.

History.--s. 3, ch. 75-70; s. 61, ch. 85-349.

255.249  Department of Management Services; responsibility; department rules.--

(1)  The Department of Management Services shall have responsibility and authority for the custodial and preventive maintenance, repair, and allocation of space of all buildings in the Florida Facilities Pool and the grounds located adjacent thereto.

(2)  The department shall require any state agency planning to terminate a lease for the purpose of occupying space in a new state-owned office building, the funds for which are appropriated after June 30, 2000, to state why the proposed relocation is in the best interest of the state.

(3)  The department shall, to the extent feasible, coordinate the vacation of privately owned leased space with the expiration of the lease on that space and, when a lease is terminated before expiration of its base term, will make a reasonable effort to place another state agency in the space vacated. Any state agency may lease the space in any building that was subject to a lease terminated by a state agency for a period of time equal to the remainder of the base term without the requirement of competitive bidding.

(4)  The department shall promulgate rules pursuant to chapter 120 providing:

(a)  Methods for accomplishing the duties outlined in subsection (1).

(b)  Procedures for soliciting and accepting competitive proposals for leased space of 5,000 square feet or more in privately owned buildings, for evaluating the proposals received, for exemption from competitive bidding requirements of any lease the purpose of which is the provision of care and living space for persons or emergency space needs as provided in s. 255.25(10), and for the securing of at least three documented quotes for a lease that is not required to be competitively bid.

(c)  A standard method for determining square footage or any other measurement used as the basis for lease payments or other charges.

(d)  Methods of allocating space in both state-owned office buildings and privately owned buildings leased by the state based on use, personnel, and office equipment.

(e)  Acceptable terms and conditions for inclusion in lease agreements.

(f)  Maximum rental rates, by geographic areas or by county, for leasing privately owned space.

(g)  A standard method for the assessment of rent to state agencies and other authorized occupants of state-owned office space, notwithstanding the source of funds.

(h)  For full disclosure of the names and the extent of interest of the owners holding a 4-percent or more interest in any privately owned property leased to the state or in the entity holding title to the property, for exemption from such disclosure of any beneficial interest which is represented by stock in any corporation registered with the Securities and Exchange Commission or registered pursuant to chapter 517, which stock is for sale to the general public, and for exemption from such disclosure of any leasehold interest in property located outside the territorial boundaries of the United States.

(i)  For full disclosure of the names of all public officials, agents, or employees holding any interest in any privately owned property leased to the state or in the entity holding title to the property, and the nature and extent of their interest, for exemption from such disclosure of any beneficial interest which is represented by stock in any corporation registered with the Securities and Exchange Commission or registered pursuant to chapter 517, which stock is for sale to the general public, and for exemption from such disclosure of any leasehold interest in property located outside the territorial boundaries of the United States.

(j)  A method for reporting leases for nominal or no consideration.

(k)  For a lease of less than 5,000 square feet, a method for certification by the agency head or the agency head's designated representative that all criteria for leasing have been fully complied with and for the filing of a copy of such lease and all supporting documents with the department for its review and approval as to technical sufficiency.

(5)  The Department of Management Services shall prepare a form listing all conditions and requirements adopted pursuant to this chapter which must be met by any state agency leasing any building or part thereof. This form shall be certified by the agency head or the agency head's designated representative.

History.--s. 4, ch. 75-70; s. 2, ch. 78-166; s. 168, ch. 81-259; s. 34, ch. 85-349; s. 2, ch. 90-224; s. 148, ch. 95-148; s. 1, ch. 95-342; s. 11, ch. 98-279; s. 21, ch. 99-399; s. 2, ch. 2000-172.

255.25  Approval required prior to construction or lease of buildings.--

(1)(a)  No state agency may lease space in a private building that is to be constructed for state use unless prior approval of the architectural design and preliminary construction plans is first obtained from the Department of Management Services.

(b)  During the term of existing leases, each agency shall monitor market conditions and shall initiate negotiations for each lease held in the private sector to effect the best overall lease terms reasonably available to that agency. Amendments to leases may be permitted to modify any lease provisions or any other terms or conditions, except to the extent specifically prohibited by this chapter. The Department of Management Services shall serve as a mediator in lease renegotiations if the agency and the lessor are unable to reach a compromise within 6 months of renegotiation and if either the agency or lessor requests the Department of Management Services' intervention.

(c)  When specifically authorized by the Appropriations Act and in accordance with s. 255.2501, if applicable, the Department of Management Services may approve a lease-purchase, sale-leaseback, or tax-exempt leveraged lease contract or other financing technique for the acquisition, renovation, or construction of a state fixed capital outlay project when it is in the best interest of the state.

(2)(a)  Except as provided in s. 255.2501, no state agency may lease a building or any part thereof unless prior approval of the lease conditions and of the need therefor is first obtained from the Department of Management Services. Any approved lease may include an option to purchase or an option to renew the lease, or both, upon such terms and conditions as are established by the department subject to final approval by the head of the Department of Management Services and s. 255.2502.

(b)  The approval of the Department of Management Services, except for technical sufficiency, need not be obtained for the lease of less than 5,000 square feet of space within a privately owned building, provided the agency head or the agency head's designated representative has certified compliance with applicable leasing criteria as may be provided pursuant to s. 255.249(4)(k) and has determined such lease to be in the best interest of the state. Such a lease which is for a term extending beyond the end of a fiscal year is subject to the provisions of ss. 216.311, 255.2502, and 255.2503.

(c)  The Department of Management Services shall adopt as a rule uniform leasing procedures for use by each state agency other than the Department of Transportation. Each state agency shall ensure that the leasing practices of that agency are in substantial compliance with the uniform leasing rules adopted under this section and ss. 255.249, 255.2502, and 255.2503.

(3)(a)  Except as provided in subsection (10), no state agency shall enter into a lease as lessee for the use of 5,000 square feet or more of space in a privately owned building except upon advertisement for and receipt of competitive bids and award to the lowest and best bidder. The Department of Management Services shall have the authority to approve a lease for 5,000 square feet or more of space that covers more than 1 fiscal year, subject to the provisions of ss. 216.311, 255.2501, 255.2502, and 255.2503, if such lease is, in the judgment of the department, in the best interests of the state. This paragraph does not apply to buildings or facilities of any size leased for the purpose of providing care and living space for persons.

(b)  The Department of Management Services may approve extensions of an existing lease of 5,000 square feet or more of space if such extensions are determined to be in the best interests of the state, but in no case shall the total of such extensions exceed 11 months. If at the end of the 11th month an agency still needs that space, it shall be procured by competitive bid in accordance with s. 255.249(4)(b). However, an agency that determines that it is in its best interest to remain in the space it currently occupies may negotiate a replacement lease with the lessor if an independent comparative market analysis demonstrates that the rates offered are within market rates for the space and the cost of the new lease does not exceed the cost of a comparable lease plus documented moving costs. A present-value analysis and the consumer price index shall be used in the calculation of lease costs. The term of the replacement lease may not exceed the base term of the expiring lease.

(c)  Any person who files an action protesting a decision or intended decision pertaining to a competitive bid for space to be leased by the agency pursuant to s. 120.57(3)(b) shall post with the state agency at the time of filing the formal written protest a bond payable to the agency in an amount equal to 1 percent of the estimated total rental of the basic lease period or $5,000, whichever is greater, which bond shall be conditioned upon the payment of all costs which may be adjudged against him or her in the administrative hearing in which the action is brought and in any subsequent appellate court proceeding. If the agency prevails after completion of the administrative hearing process and any appellate court proceedings, it shall recover all costs and charges which shall be included in the final order or judgment, excluding attorney's fees. Upon payment of such costs and charges by the person protesting the award, the bond shall be returned to him or her. If the person protesting the award prevails, the bond shall be returned to that person and he or she shall recover from the agency all costs and charges which shall be included in the final order of judgment, excluding attorney's fees.

(d)  The agency and the lessor, when entering into a lease for 5,000 or more square feet of a privately owned building, shall, before the effective date of the lease, agree upon and separately state the cost of tenant improvements which may qualify for reimbursement if the lease is terminated before the expiration of its base term. The department shall serve as mediator if the agency and the lessor are unable to agree. The amount agreed upon and stated shall, if appropriated, be amortized over the original base term of the lease on a straight-line basis.

(e)  The unamortized portion of tenant improvements, if appropriated, will be paid in equal monthly installments over the remaining term of the lease. If any portion of the original leased premises is occupied after termination but during the original term by a tenant that does not require material changes to the premises, the repayment of the cost of tenant improvements applicable to the occupied but unchanged portion shall be abated during occupancy. The portion of the repayment to be abated shall be based on the ratio of leased space to unleased space.

(4)(a)  The Department of Management Services shall not authorize any state agency to enter into a lease agreement for space in a privately owned building when suitable space is available in a state-owned building located in the same geographic region, except upon presentation to the department of sufficient written justification, acceptable to the department, that a separate space is required in order to fulfill the statutory duties of the agency making such request. The term "state-owned building" as used in this subsection means any state-owned facility regardless of use or control.

(b)  State agencies shall cooperate with local governmental units by using suitable, existing publicly owned facilities, subject to the provisions of ss. 255.2501, 255.2502, and 255.2503. Agencies may utilize unexpended funds appropriated for lease payments to:

1.  Pay their proportion of operating costs.

2.  Renovate applicable spaces.

(5)  Before construction or renovation of any state-owned building or state-leased space is commenced, the Department of Management Services shall ascertain, by submission of proposed plans to the Division of State Fire Marshal for review, that the proposed construction or renovation plan complies with the uniform firesafety standards required by the Division of State Fire Marshal. The review of construction or renovation plans for state-leased space shall be completed within 10 calendar days of receipt of the plans by the Division of State Fire Marshal. The review of construction or renovation plans for a state-owned building shall be completed within 30 calendar days of receipt of the plans by the Division of State Fire Marshal. The responsibility for submission and retrieval of the plans called for in this subsection shall not be imposed on the design architect or engineer, but shall be the responsibility of the two agencies. Whenever the Division of State Fire Marshal determines that a construction or renovation plan is not in compliance with such uniform firesafety standards, the Division of State Fire Marshal may issue an order to cease all construction or renovation activities until compliance is obtained, except those activities required to achieve such compliance. The Department of Management Services shall withhold approval of any proposed lease until the construction or renovation plan complies with the uniform firesafety standards of the Division of State Fire Marshal. The cost of all modifications or renovations made for the purpose of bringing leased property into compliance with the uniform firesafety standards shall be borne by the lessor.

(6)  Before construction or substantial improvement of any state-owned building is commenced, the Department of Management Services must ascertain that the proposed construction or substantial improvement complies with the flood plain management criteria for mitigation of flood hazards, as prescribed in the October 1, 1986, rules and regulations of the Federal Emergency Management Agency, and the department shall monitor the project to assure compliance with the criteria. In accordance with chapter 120, the Department of Management Services shall adopt any necessary rules to ensure that all such proposed state construction and substantial improvement of state buildings in designated flood-prone areas complies with the flood plain management criteria. Whenever the department determines that a construction or substantial improvement project is not in compliance with the established flood plain management criteria, the department may issue an order to cease all construction or improvement activities until compliance is obtained, except those activities required to achieve such compliance.

(7)  This section does not apply to any lease having a term of less than 120 consecutive days for the purpose of securing the one-time special use of the leased property. This section does not apply to any lease for nominal or no consideration.

(8)  No agency shall enter into more than one lease for space in the same privately owned facility or complex within any 12-month period except upon the solicitation of competitive bids.

(9)  Specialized educational facilities, excluding classrooms, shall be exempt from the competitive bid requirements for leasing pursuant to this section if the executive head of any state agency certifies in writing that said facility is available from a single source and that the competitive bid requirements would be detrimental to the state. Such certification shall include documentation of evidence of steps taken to determine sole-source status.

(10)  The Department of Management Services may approve emergency acquisition of space without competitive bids if existing state-owned or state-leased space is destroyed or rendered uninhabitable by an act of God, fire, malicious destruction, or structural failure, or by legal action, if the chief administrator of the state agency or the chief administrator's designated representative certifies in writing that no other agency-controlled space is available to meet this emergency need, but in no case shall the lease for such space exceed 11 months. If the lessor elects not to replace or renovate the destroyed or uninhabitable facility, the agency shall procure the needed space by competitive bid in accordance with s. 255.249(4)(b). If the lessor elects to replace or renovate the destroyed or uninhabitable facility and the construction or renovations will not be complete at the end of the 11-month lease, the agency may modify the lease to extend it on a month-to-month basis for an additional 6 months to allow completion of such construction or renovations.

(11)  In any leasing of space that is accomplished without competition, the individuals taking part in the development or selection of criteria for evaluation, in the evaluation, and in the award processes shall attest in writing that they are independent of, and have no conflict of interest in, the entities evaluated and selected.

History.--s. 22, ch. 69-106; s. 5, ch. 75-70; s. 12, ch. 75-151; s. 1, ch. 77-174; s. 2, ch. 77-280; s. 3, ch. 78-166; s. 1, ch. 80-55; s. 1, ch. 80-294; s. 1, ch. 81-25; s. 1, ch. 82-191; s. 3, ch. 84-143; s. 9, ch. 84-321; s. 35, ch. 85-349; s. 2, ch. 88-202; s. 8, ch. 88-409; s. 3, ch. 90-224; s. 179, ch. 92-279; s. 55, ch. 92-326; s. 12, ch. 94-265; s. 3, ch. 94-333; s. 850, ch. 95-148; s. 44, ch. 96-399; s. 60, ch. 96-410; s. 22, ch. 97-94; s. 12, ch. 98-279; s. 22, ch. 99-399; s. 14, ch. 2000-141; s. 3, ch. 2000-172; s. 43, ch. 2001-61; s. 34, ch. 2001-186; s. 1, ch. 2001-267; s. 3, ch. 2001-372.

255.25001  Suspension or delay of specified functions, programs, and requirements relating to governmental operations.--Notwithstanding the provisions of:

(1)  Section 946.504(3), as amended by chapter 92-279, Laws of Florida, the Department of Management Services shall not be required to participate with the Department of Corrections in the correctional work program (PRIDE) leasing process.

(2)  Sections 253.025 and 255.25, the Department of Management Services has the authority to promulgate rules pursuant to chapter 120 to be used in determining whether a lease-purchase of a state-owned office building is in the best interests of the state, which rules provide:

(a)  Procedures state agencies will follow to certify the need for a lease-purchase acquisition for a state-owned office building to the Department of Management Services and a notification procedure of the department's decision regarding state agencies' requests for a lease-purchase agreement. The certification process shall include but not be limited to the following:

1.  Current programmatic space requirements of the state agency.

2.  Future programmatic space requirements of the state agency.

3.  Time considerations in providing state-owned office building space.

4.  An analysis of existing leases affected by the lease-purchase agreement.

(b)  Procedures and document formats for the advertisement, competitive bid process, including format of submissions, and evaluation of lease-purchase acquisition proposals for state-owned office buildings. The evaluation process shall include but not be limited to the following:

1.  A consideration of the cost of comparable operating leases.

2.  The appraised value of the facility as required by s. 253.025.

3.  A present value analysis of the proposed payment stream.

4.  The cost of financing the facility to be acquired.

5.  The cost to repair identified physical defects.

6.  The cost to remove identified hazardous substances.

7.  An energy analysis.

8.  A determination of who is responsible for management and maintenance activities.

In order to minimize the cost of the evaluation process, the Department of Management Services may develop a multistage evaluation process to identify the most cost-efficient proposals for extensive evaluation. The studies developed as a result of this evaluation process shall be considered confidential and exempt from the provisions of s. 119.07(1) to the same extent that appraisal reports are considered confidential and exempt from the provisions of s. 119.07(1) as provided in s. 253.025(6)(d).

(c)  Acceptable terms and conditions for inclusion in lease-purchase agreements, which shall include but not be limited to:

1.  The assignment of the lease-purchase agreement to other governmental entities, including accumulated equity.

2.  The ability of the acquiring state agency to sublease a portion of the facility, not to exceed 25 percent, to other governmental entities. These subleases shall provide for the recovery of the agencies' cost of operations and maintenance.

The execution of a lease-purchase is conditioned upon a finding by the Department of Management Services that it would be in the best interests of the state. The language in this subsection shall be considered specific authorization for a lease-purchase pursuant to s. 255.25(1)(b) upon the Department of Management Services' certification that the lease-purchase is in the best interests of the state. Thereafter, the agency is authorized to enter into a lease-purchase agreement and to expend operating funds for lease-purchase payments. Any facility which is acquired pursuant to the processes authorized by this subsection shall be considered to be a "state-owned office building" and a "state-owned building" as those terms are applied in ss. 255.248-255.25.

(d)  That any costs resulting from the processes authorized by this subsection, including but not limited to appraisals, environmental analyses, and any other studies which may be required under these provisions, shall be borne by the owner of the property which is the subject of the proposed lease-purchase.

(3)  Chapters 253 and 287, the Department of Agriculture and Consumer Services shall be authorized to sell any tangible personal property, real property, or structures on leased or department-owned real property without complying with other provisions of law or Florida Statutes, with the proceeds being deposited into the Property Trust Account in the General Inspection Trust Fund. Prior to finalizing any such sale, the department's proposed action shall be subject to the notice and review procedures set forth in s. 216.177, as amended by chapter 92-142, Laws of Florida.

History.--s. 8, ch. 92-316; s. 15, ch. 94-240; s. 111, ch. 96-406; s. 13, ch. 98-279.

255.2501  Lease of space financed with local government obligations.--

(1)  Except when specifically authorized by the Appropriations Act, no executive agency, department, public officer or employee shall enter any contract on behalf of the state, the term of which contract is more than 5 years, including any and all renewal periods and including any and all leases which constitute a series of leases, for the lease, lease-purchase, sale-leaseback, purchase, or rental of any office space, building, real property and improvements thereto, or any other fixed capital outlay project, any of which is or is to be financed with local government obligations of any type.

(2)  No lease, lease-purchase, sale-leaseback, purchase, or rental of any office space, building, real property and improvements thereto, or any other fixed capital outlay project that is or is to be financed with local government obligations of any type shall be requested for approval in the Appropriations Act unless:

(a)  The construction for such project is to be or has been competitively bid unless the certificate of occupancy for such project was issued more than 3 years prior to the time such request is made;

(b)  The executive branch agency or department making the request has competitively bid its space needs prior to making such request and the project for which approval is sought was the lowest and best bidder for such needs; and

(c)  The rent, lease payment, lease-purchase payment, or other payment for such project is not greater than an amount equal to the same proportion of the debt service on the local government obligations to be issued to finance or which are outstanding that financed, as the case may be, the facility or project for which approval is sought that the executive agency or department seeking such approval will utilize under the lease, lease-purchase, sale-leaseback, purchase, or rental of the project in the facility or project as compared to the entire facility or project that is to be or was financed. This paragraph shall not apply when the certificate of occupancy for a facility or project was issued more than 3 years prior to the time such request is made.

(3)  Any project approved pursuant to this section shall be subject to the requirements of ss. 255.2502 and 255.2503.

(4)  Any contract entered on behalf of the state by any executive agency, department, public officer or employee in violation of this section shall be null and void.

History.--s. 9, ch. 88-409.

255.2502  Contracts which require annual appropriation; contingency statement.--No executive