HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/CS/HB 149 Continuing Contracts
SPONSOR(S): State Affairs Committee, State Administration & Technology Appropriations Subcommittee,
Constitutional Rights, Rule of Law & Government Operations Subcommittee, Alvarez, and others
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 656
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Constitutional Rights, Rule of Law & 15 Y, 0 N, As CS Villa Miller
Government Operations Subcommittee
2) State Administration & Technology 9 Y, 0 N, As CS Mullins Topp
Appropriations Subcommittee
3) State Affairs Committee 20 Y, 0 N, As CS Villa Williamson
SUMMARY ANALYSIS
In 1973, the Florida Legislature enacted the Consultants’ Competitive Negotiation Act (CCNA), which requires
state and local government agencies to procure the professional services of an architect, professional
engineer, landscape architect, or registered surveyor and mapper using a qualifications-based selection
process. Qualifications-based selection is a process whereby service providers are retained on the basis of
competency, qualifications, and experience, rather than price.
The CCNA does not prohibit a continuing contract between a firm and an agency. A “continuing contract” is a
contract for professional services entered into in accordance with the CCNA between a government agency
and a firm whereby the firm provides professional services to the agency for several projects. The CCNA
prohibits firms that are parties to a continuing contract from being required to bid against one another. Current
law authorizes the use of a continuing contract for construction projects in which the estimated construction
cost of each project does not exceed $4 million, for study activities if the fee for professional services for each
study does not exceed $500,000, or for work of a specified nature as outlined in the contract required by the
agency, with the contract being for a fixed term or with no time limitation except the contract must include a
termination clause.
The bill increases the maximum limit for continuing contracts covered by the CCNA from an estimated per-
project construction cost of $4 million to $7.5 million plus an annual increase based on the Consumer Price
Index (CPI). Beginning July 1, 2025, the bill requires the Department of Management Services to adjust
annually the maximum amount allowed for each individual project in a continuing contract by using the change
in the June-to-June CPI and to publish the adjusted amount on its website.
The bill may have a positive, yet indeterminate fiscal impact on state and local government expenditures by
increasing the dollar threshold for continuing contracts. See Fiscal Comments.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 2/14/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Consultant’s Competitive Negotiation Act
In 1972, Congress passed the Brooks Act,1 which requires federal agencies to use a qualifications-
based selection process for architectural, engineering, and associated services, such as mapping and
surveying. Qualifications-based selection is a process whereby service providers are retained on the
basis of competency, qualifications, and experience, rather than price.
In 1973, the Florida Legislature enacted the Consultants’ Competitive Negotiation Act (CCNA), 2 which
is modeled after the Brooks Act. The CCNA requires state and local government agencies 3 to procure
the professional services 4 of an architect, professional engineer, landscape architect, or registered
surveyor and mapper using a qualifications-based selection process.5
CCNA Procurement Process
The CCNA establishes a three-phrase process for procuring professional services:
Phase 1 – Public announcement and qualification.
Phase 2 – Competitive solicitation.
Phase 3 – Competitive negotiation.
During Phase 1, the public announcement and qualification phase, state and local agencies must
publicly announce each occasion when professional services will be purchased for one of the following:
A project,6 when the basic construction cost is estimated by the agency to exceed $325,000; or
A planning or study activity, when the fee for professional services exceeds $35,000. 7
The public notice must include a general description of the project and indicate how interested firms 8
may apply for consideration.9 A firm that wishes to provide professional services to an agency must first
be certified by the agency as qualified to provide the needed services pursuant to law and the agency’s
regulations.10 In determining whether a firm is qualified, the agency must consider the capabilities,
adequacy of personnel, past record, and experience of the firm as well as whether the firm is a certified
minority business enterprise.11 Each agency must encourage firms desiring to provide professional
services to the agency to submit annual statements of qualifications and performance data. 12
1 Pub. L. 92-582, 86 Stat. 1278 (1972).
2 Ch. 73-19, Laws of Fla., codified as s. 287.055, F.S.
3 “Agency” means the state, a state agency, a municipality, a political subdivision, a school district, or a school board. The term
“agency” does not extend to a nongovernmental developer that contributes public facilities to a political subdivision under s . 380.06,
F.S., or ss. 163.3220-163.3243, F.S. S. 287.055(2)(b), F.S.
4 “Professional services” means those services within the scope of the practice of architecture, professional engineering, land scape
architecture, or registered surveying and mapping, as defined by the laws of the state, or those performed by any architect, professional
engineer, landscape architect, or registered surveyor and mapper in connection with his or her professional employment or pra ctice. S.
287.055(2)(a), F.S.
5 S. 287.055, F.S.
6 (f) “Project” means that fixed capital outlay study or planning activity described in the public notice of the state or a state a gency
under s. 287.055(3)(a), F.S., and may include:
A grouping of minor construction, rehabilitation, or renovation activities.
A grouping of substantially similar construction, rehabilitation, or renovation activities. S. 287.055(2)(f), F.S.
7 S. 287.055(3)(a)1., F.S. As used in the statute, CATEGORY TWO refers to purchases of $35,000 or more and CATEGORY FIVE
refers to purchases of $325,000 or more. S. 287.017, F.S.
8 “Firm” means any individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice architecture,
engineering, or surveying and mapping in the state. S. 287.055(2)(c), F.S.
9 S. 287.055(3)(a)1., F.S.
10 S. 287.055(3)(c), F.S.
11 S. 287.055(3)(c) and (d), F.S.
12 S. 287.055(3)(b), F.S.
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During Phase 2, the competitive selection phase, an agency must evaluate the qualifications and past
performance of interested firms and conduct discussions with at least three firms regarding their
qualifications, approach to the project, and ability to furnish the required services. 13 The agency must
then select at least three firms, ranked in order of preference, that it considers the most highly qualified
to perform the required services. In determining whether a firm is qualified, the agency must consider
such factors as the ability of professional personnel; whether a firm is a certified minority business
enterprise; past performance; willingness to meet time and budget requirements; location; recent,
current, and projected workloads of the firm; and the volume of work previously awarded to each firm
by the agency, with the goal of equitably distributing contracts among qualified firms, provided such
distribution does not violate the principle of selecting the most highly qualified firms. During this phase,
the CCNA prohibits the agency from requesting, accepting, or considering proposals for the
compensation14 to be paid.15,16
During Phase 3, the competitive negotiation phase, an agency must first negotiate compensation with
the highest ranked firm. If the agency is unable to negotiate a satisfactory contract with that firm at a
price the agency determines to be fair, competitive, and reasonable, negotiations with the firm must be
formally terminated. The agency must then negotiate with the remaining ranked firms, in order of rank,
and follow the same process until an agreement is reached. If the agency is unable to negotiate a
satisfactory contract with any of the ranked firms, the agency must select additional firms, ranked in the
order of competence and qualification without regard to price, and continue negotiations until an
agreement is reached.17
Continuing Contracts under the CCNA
The CCNA does not prohibit a continuing contract18 between a firm and an agency.19 A “continuing
contract” is a contract for professional services entered into in accordance with the CCNA between an
agency and a firm whereby the firm provides professional services to the agency for projects where the
estimated cost of each project does not exceed a specified amount.20 The CCNA prohibits firms that
are parties to a continuing contract from being required to bid against one another. 21
Current law authorizes the use of a continuing contract for construction projects in which the estimated
construction cost of each individual project under the contract does not exceed $4 million, for study
activities if the fee for professional services for each individual study under the contract does not
exceed $500,000, or for work of a specified nature as outlined in the contract required by the agency,
with the contract being for a fixed term or with no time limitation except the contract must include a
termination clause.22 The maximum per-project and per-study limits were put in place by the Legislature
in 198823 and subsequently increased three times. In 1988, the maximum per-project and per-study
limits were $500,000 and $25,000, respectively;24 in 2002, the limits were increased to $1 million and
$50,000;25 in 2009, the limits were increased to $2 million and $200,000;26 and in 2020, the limits were
increased to $4 million and $500,000.27
13
S. 287.055(4)(a), F.S.
14 “Compensation” means the amount paid by the agency for professional services regardless of whether state d as compensation or
stated as hourly rates, overhead rates, or other figures or formulas from which compensation can be calculated. S. 287.055(2) (d), F.S.
15 S. 287.055(4)(b), F.S.
16 The CCNA did not prohibit discussion of compensation in the competitive selection phase until 1988, when the Legislature enacted a
provision that allows consideration of compensation to occur only during the competitive negotiation phase. Ch. 88 -108, L.O.F.
17 S. 287.055(5), F.S.
18 See s. 287.055(2)(g), F.S.
19 S. 287.055(4)(d), F.S.
20 S. 287.055(2)(g), F.S.
21 Id.
22 S. 287.055(2)(g), F.S. An entity may not use a continuing contract for work of a specified nature to exceed the monetary limi ts placed
on construction projects and study activities. Op. Fla. Att’y Gen. 2013-28 (2013).
23 Ch. 88-108, Laws of Fla.
24 Id.
25 Ch. 2002-20, Laws of Fla.
26 Ch. 2009-227, Laws of Fla.
27 Ch. 2020-127, Laws of Fla.
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Construction and Program Management Entities
Current law authorizes governmental entities 28 to contract with a construction management entity or a
program management entity.29 A construction management entity is responsible for construction project
scheduling and coordination in both preconstruction and construction phases and is generally
responsible for the successful, timely, and economical completion of a construction project. 30 A
program management entity is responsible for schedule control, cost control, and coordination in
providing or procuring planning, design, and construction services.31 Both construction and program
management entities must be procured pursuant to the CCNA and must consist of, or contract with,
licensed or registered professionals for the specific fields or areas of construction. 32 The governmental
entity procuring the services of a construction management or program management entity may choose
to enter into a continuing contract33 pursuant to the CCNA for construction projects where the estimated
construction cost of each project does not exceed $4 million.34
Construction Cost
Construction costs have seen an upswing since 2020, largely driven by a confluence of factors
exacerbated by the COVID-19 pandemic.35 Escalating prices of essential materials, such as steel and
lumber, influenced by disruptions in global supply chains, are prominent contributors as well as general
inflation in the economy. In addition, labor shortages have led to higher wages, further impacting costs.
However, construction input prices 36 have stabilized recently, falling about one percentage point from
October 2022 to October 2023. The following chart shows the percent change to certain construction
input and commodity prices as of October 2023: 37
1-month 12-month Since Feb. 2020
Inputs to Industries
Inputs to construction -1.2% -1.1% 33.1%
28 “Governmental entity” means a county, municipality, school district, special district as defined in ch. 189, F. S., or political subdivision
of the state. S. 255.103(1), F.S.
29
S. 255.103, F.S.
30 S. 255.103(2), F.S.
31 S. 255.103(3), F.S.
32 S. 255.103, F.S.
33 A continuing contract, for purposes of procuring a construction or program management entity, means a contract for work durin g a
defined period on construction projects described by type, which may or may not be identified at the time of entering into th e contract.
S. 255.103(4), F.S.
34 S. 255.103(4), F.S.
35 Point Acquisitions, Construction Costs Rising in 2022: Here’s Why It’s Happening, available at https://pointacquisitions.com/2022-
rising-construction-costs/ (last visited November 30, 2023).
36 Construction input prices refer to the costs associated with materials, labor, and other resources used in the construction industry.
37 See United States Department of Labor Bureau of Labor Statistics, Producer Price Index Detailed Reports for Feb ruary 2020 and
Octob er 2023, available at: https://www.bls.gov/ppi/detailed-report/#2023 (last visited December 1, 2023).
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Inputs to multifamily construction -0.9% 0.8% 32.4%
Inputs to nonresidential construction -1.1% -0.7% 33.6%
Inputs to commercial construction -0.7% -0.3% 33.6%
Inputs to healthcare construction -0.7% -0.2% 33.4%
Inputs to industrial construction -0.9% 1.1% 30.7%
Inputs to other nonresidential construction -1.2% -0.9% 33.7%
Inputs to maintenance and repair construction -1.3% -2.0% 31.8%
Inputs to highway and street construction -1.2% 0.0% 31.4%
Commodities
Adhesives and sealants 0.1% 1.8% 28.9%
Concrete products 0.7% 9.7% 30.5%
Construction machinery and equipment 0.0% 6.0% 23.6%
Copper wire and cable -1.3% 2.7% 24.2%
Crude petroleum -2.9% -3.0% 56.9%
Fabricated structural metal products 0.8% -0.7% 42.3%
Insulation materials -0.3% 1.6% 31.0%
Iron and Steel -2.3% -6.1% 40.79%
Lumber and wood products -0.3% -6.5% 22.3%
Natural gas 10.9% -54.9% 40.8%
Plumbing fixtures and brass fittings 0.5% 1.4%