The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/CS/SB 1076
INTRODUCER: Rules Committee; Community Affairs Committee; Governmental Oversight and
Accountability Committee; and Senator Brodeur
SUBJECT: Public Works Projects
DATE: April 20, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Ponder McVaney GO Fav/CS
2. Hackett Ryon CA Fav/CS
3. Ponder Phelps RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/CS/SB 1076 prohibits a state college, county, municipality, school district, or other
political subdivision of the state from using a local ordinance or regulation to prevent a certified,
licensed, or registered contractor, subcontractor, or material supplier or carrier from participating
in the bidding process based upon:
Maintaining an office or place of business within a particular local jurisdiction;
Hiring employees or subcontractors from within a particular local jurisdiction; or
Prior payment of local taxes, assessments, or duties within a particular local jurisdiction.
Current law provides that for a competitive solicitation for construction services in which 50
percent or more of the cost will be paid from state-appropriated funds, a state college, county,
municipality, school district, or other political subdivision of the state may not use a local
ordinance or regulation that provides a preference based upon: (1) the contractor’s maintaining
an office or place of business within a particular local jurisdiction; (2) the contractor’s hiring
employees or subcontractors from within a particular local jurisdiction; or (3) the contractor’s
prior payment of local taxes, assessments, or duties within a particular local jurisdiction.
The bill removes the 50 percent or more threshold. It also removes the local preference
prohibition in favor of a prohibition against a local ordinance or regulation that prevents the
participation of specified entities in the bidding process based on certain criteria (see above).
BILL: CS/CS/CS/SB 1076 Page 2
With the removal of the 50 percent or more threshold, the new prohibition in the bill applies to
all solicitations that will be paid for with any state-appropriated funds.
The bill amends the definition of the term “public works project” to remove the 50 percent or
more cost threshold and to provide that the term applies to activities exceeding $1 million in
value which are paid for with any state-appropriated funds. Additionally, this definition is
amended to remove the limitation to appropriations at the time of the competitive solicitation.
The bill prohibits the state or any political subdivision that contracts for public works projects,
except as required by federal or state law, from preventing a certified, licensed, or registered
contractor, subcontractor, or material supplier or carrier, from participating in the bidding
process based on the geographic location of the company headquarters or offices of the
contractor, subcontractor, or material supplier or carrier submitting a bid on a public works
project or the residence of an employee of such contractor, subcontractor, or material supplier or
carrier.
The bill also prohibits the state or any political subdivision from prohibiting a contractor,
subcontractor, or material supplier or carrier who is qualified, licensed, or certified by state or
local law – from receiving information about public works opportunities.
The bill provides that these restrictions do not apply to projects funded by the Charter County
and Regional Transportation System Surtax.
The bill may have an indeterminate fiscal impact on local governments.
The bill takes effect on July 1, 2021.
II. Present Situation:
Procurement of Construction Services
Chapter 255, F.S., specifies the procedures to be followed in the procurement of construction
services for public property and publicly owned buildings. Section 255.29, F.S., authorizes the
Department of Management Services to adopt rules for bidding on building construction
contracts. These rules must establish:
Procedures for determining the qualifications and responsibility of potential bidders prior to
advertising for and receiving bids for building construction contracts;
Procedures for awarding each state agency construction project to the lowest qualified
bidder;
Procedures to govern negotiations for construction contracts and contract modifications when
such negotiations are determined to be in the best interest of the state; and
Procedures for entering into performance-based contracts for the development of public
facilities when those contracts are determined to be in the best interest of the state.1
1
Section 255.29, F.S.; See Rule 60D-5.001 et seq., Florida Administrative Code.
BILL: CS/CS/CS/SB 1076 Page 3
State contracts for construction projects that are projected to cost in excess of $200,000 must be
competitively bid.2 A county, municipality, special district as defined in chapter 189, or other
political subdivision seeking to construct or improve a public building must competitively award
to an appropriately licensed contractor each project that is estimated to cost more than $300,000.3
Section 255.0525(1), F.S., requires the solicitation of competitive bids or proposals for any state
construction project that is projected to cost more than $200,000 to be publicly advertised in the
Florida Administrative Register (FAR) at least 21 days prior to the established bid opening. If the
cost of the construction project is projected to exceed $500,000, the advertisement must be
published in the FAR at least 30 days prior to the 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 bid
opening.4 Similar publishing requirements apply to counties, municipalities, and political
subdivisions under s. 255.0525(2), F.S.
Florida Preference to State Residents
Florida law provides a preference for the employment of state residents in construction contracts
funded by state funds.5 Such contracts must contain a provision requiring the contractor to give
preference to the employment of state residents in the performance of the work if state residents
have “substantially equal qualifications”6 to those of non-residents.7 A contract for construction
funded by local funds may contain such a provision but is not required to be included.8 A
contractor required to employ state residents must contact the Department of Economic
Opportunity to post the contractor’s employment needs in the state’s job bank system. 9
Prohibited Local Government Preferences
Section 255.0991, F.S., prohibits a local ordinance or regulation from giving preference to a
local contractor in certain circumstances. For a competitive solicitation10 for construction
services in which 50 percent or more of the cost will be paid from state-appropriated funds, a
state college, county, municipality, school district, or other political subdivision of the state may
not use a local ordinance or regulation that provides a preference based upon:
The contractor’s maintaining an office or place of business within a particular local
jurisdiction;
The contractor’s hiring employees or subcontractors from within a particular local
jurisdiction; or
2
Section 255.0525, F.S.,
3
Section 255.20, F.S.
4
Section 255.0525(1), F.S.
5
Section 255.099(1), F.S.
6
Section 255.099(1)(a), F.S., defines the term “substantially equal qualifications” to mean the qualifications of two or more
persons among whom the employer cannot make a reasonable determination that the qualifications held by one person are
better suited for the position than the qualifications held by the other person or persons.
7
Section 255.099(1), F.S.
8
Id.
9
Section 255.099(1)(b), F.S.
10
Section 255.248(2), F.S., defines “competitive solicitation” to mean an invitation to bid, a request for proposals, or an
invitation to negotiate.
BILL: CS/CS/CS/SB 1076 Page 4
The contractor’s prior payment of local taxes, assessments, or duties within a particular local
jurisdiction.11
When 50 percent or more of the costs will be paid from state-appropriated funds, a state college,
county, municipality, school district, or other political subdivision must disclose in the
solicitation document the amount of such funds or the percentage of such funds as compared to
the anticipated total cost of the construction services.12 If less than 50 percent of the costs for the
construction services will be funded from state-appropriated funds, a state college, county,
municipality, school district, or other political subdivision is not prevented from awarding a
contract to a contractor in accordance with applicable state laws or local ordinances or
regulations.13
Public Works Projects
In 2017, the Legislature created s. 255.0992, F.S., addressing limitations with respect to public
works contracts - except for contracts issued by the Department of Transportation (DOT) under
ch. 337, F.S.14 This section defines the terms “political subdivision” and “public works project.”
A political subdivision is defined to mean:
[A] separate agency or unit of local government created or established by
law or ordinance and the officers thereof. The term includes, but is not
limited to, a county; a city, town, or other municipality; or a department,
commission, authority, school district, taxing district, water management
district, board, public corporation, institution of higher education, or other
public agency or body thereof authorized to expend public funds for
construction, maintenance, repair, or improvement of public works.
The term “public works project” means:
[A]n activity of which 50 percent or more of the cost will be paid from state-
appropriated funds that were appropriated at the time of the competitive
solicitation and which consists of the construction, maintenance, repair,
renovation, remodeling, or improvement of a building, road, street, sewer,
storm drain, water system, site development, irrigation system, reclamation
project, gas or electrical distribution system, gas or electrical substation, or
other facility, project, or portion thereof that is owned in whole or in part by
any political subdivision.
Except as required by federal or state law, the state or any political subdivision that contracts for
a public works project may not require a contractor, subcontractor, or material supplier or carrier
engaged in the project to:
Pay employees a predetermined amount of wages or prescribe any wage rate;
Provide employees a specified type, amount, or rate of employee benefits;
11
Section 255.0991(2), F.S.
12
Section 255.0991(3), F.S.
13
Section 255.0991(4), F.S.
14
Chapter 2017-113, L.O.F.
BILL: CS/CS/CS/SB 1076 Page 5
Control, limit, or expand staffing; or
Recruit, train, or hire employees from a designated, restricted, or single source.15
The state or any political subdivision that contracts for a public works project may not prohibit
any contractor, subcontractor, or material supplier or carrier able to perform such work who is
qualified, licensed, or certified as required by state law to perform such work from submitting a
bid on the public works project.16 This provision does not apply to vendors listed on the
convicted and discriminatory vendor list.
Federal Labor and Wage Laws
The National Labor Relations Act of 193517 and the Labor Management Relations Act of 194718
constitute a comprehensive scheme of regulations guaranteeing employees the right to organize,
to bargain collectively through chosen representatives, and to engage in concerted activities to
secure their rights in industries involved in or affected by interstate commerce.
The Fair Labor Standards Act (FLSA or act) establishes a federal minimum wage, which is the
lowest hourly wage that can be paid in the United States.19 A state may set the rate higher than
the federal minimum, but not lower.20 The act also requires employers to pay time and a half to
their employees for overtime hours worked,21 and establishes standards for recordkeeping22 and
child labor.23 Over 135 million workers are covered under the act;24 most, but not all, jobs are
covered by the FLSA. In addition, some jobs covered by the act are considered “exempt” from
the FLSA overtime requirements.25
On February 12, 2014, President Obama signed Executive Order 13658, which establishes a
minimum wage for certain federal contractors.26 The Executive Order requires parties who
contract with the federal government to pay workers performing work on or in connection with
covered federal contracts at least $10.10 per hour beginning January 1, 2015. Beginning
15
Section 255.0992(2)(a), F.S.
16
Section 255.099(2)(b), F.S.
17
29 U.S.C. ss. 151-169 (encouraging the practice and procedure of collective bargaining and protecting the exercise by
workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the
purpose of negotiating the terms and conditions of their employment or other mutual aid or protection).
18
29 U.S.C. ss. 141-197 (prescribing the rights of both employees and employers in their relations affecting commerce, to
provide orderly and peaceful procedures for preventing the interference by either with the rights of the other, to protect the
rights of individual employees in their relations with labor organizations whose activities affect commerce, to define and
proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare, and
to protect the rights of the public in connection with labor disputes affecting commerce).
19
29 U.S.C. s. 206 .
20
29 U.S.C. s. 218(a).
21
29 U.S.C. s. 207(a)(1).
22
29 U.S.C. s. 211.
23
29 U.S.C. s. 212.
24
United States Department of Labor, Wage and Hour Division: Resources for Workers, available at
http://www.dol.gov/whd/workers.htm (last visited February 22, 2021).
25
29 U.S.C. s. 213; United States Department of Labor, Fact Sheet #14: Coverage Under the Fair Labor Standards Act
(FLSA), www.dol.gov/whd/regs/compliance/whdfs14.pdf (last visited February 22, 2021).
26
30 Exec. Order 13658, 79 Fed. Reg. 9851 (Feb. 12, 2014), available at http://www.whitehouse.gov/the-press-
office/2014/02/12/executive-order-minimum-wage-contractors (last visited February 22, 2021).
BILL: CS/CS/CS/SB 1076 Page 6
January 1, 2016, and annually thereafter, such workers must be paid an amount determined by
the Secretary of Labor in accordance with the Executive Order. The order stated that “[r]aising
the pay of low-wage workers increases their morale and the productivity and quality of their
work, lowers turnover and its accompanying costs, and reduces supervisory costs.”27 The
Executive Order hourly minimum wage in effect from January 1, 2021, through December 31,
2021, is $10.95.28
The Davis-Bacon Act29 applies to contractors and subcontractors performing on federally funded
or assisted contracts in excess of $2,000 for the construction, alteration, or repair (including
painting and decorating) of public buildings or public works.30 Contractors and subcontractors
subject to the Davis-Bacon Act are required to pay their laborers and mechanics employed under
the contract no less than the locally prevailing wages and fringe benefits for corresponding work
on similar projects in the area, as determined by the Department of Labor.31 The Davis-Bacon
Act applies to contractors and subcontractors performing work on federal or District of Columbia
contracts.32 Many federal laws that authorize federal assistance for construction thr