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 Appropriations
BILL: CS/CS/SB 398
INTRODUCER: Appropriations Committee (Recommended by Appropriations Subcommittee on
Transportation, Tourism and Economic Development); Transportation Committee; and
Senator Hooper
SUBJECT: Transportation Projects
DATE: March 2, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Price Vickers TR Fav/CS
2. McAuliffe/Price Hrdlicka ATD Recommend: Fav/CS
3. McAuliffe Sadberry AP Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 398 revises the current requirement for an annual minimum commitment by the
Florida Department of Transportation (FDOT) of at least 15 percent of revenues deposited into
State Transportation Trust Fund (STTF) for specified public transportation projects, by imposing
a maximum commitment of no more than 25 percent of such revenues, excluding state revenues
used for matching federal grants, unless otherwise specified in the General Appropriations Act.
The bill also clarifies the FDOT’s authority to engage in “progressive” design-build contracting
as an innovative technique of highway and bridge design and construction, exempts certain
progressive design-build contracts from an existing cap on innovative contracts, and removes a
limitation on design-build contracting to certain types of projects.
The bill clarifies that stipends paid by the FDOT to non-selected design-build firms that have
submitted responsive proposals for construction contracts contained in the FDOT’s legislatively
approved work program are not subject to existing documentation and notification requirements
for stipend payments made by the FDOT to resolve a bid protest through a settlement.
Additionally, the bill revises authorization for an applying contractor who desires to bid
exclusively on construction contracts with proposed budget estimates of $2 million (rather than
$1 million) to submit reviewed (rather than audited, certified) annual or reviewed interim
BILL: CS/CS/SB 398 Page 2
financial statements prepared by a certified public accountant. The bill also authorizes an
applicant for an FDOT contractor certificate of qualification to submit with a timely submitted
application a request to keep an existing certificate, with the current maximum capacity rating, in
place until the expiration date.
Further, the bill repeals a current provision of law providing temporary confidential and exempt
status from public records requirements for a document that reveals the identity of a person who
has requested or obtained a bid package, plan, or specifications pertaining to any project to be let
by the FDOT.
The fiscal impact of the bill is indeterminate. Please see the “Fiscal Impact Statement” for
details.
The bill takes effect July 1, 2022.
II. Present Situation:
For ease of organization and readability, the present situation is discussed below in conjunction
with the effect of the proposed changes.
III. Effect of Proposed Changes:
Public Transportation Funding from the State Transportation Trust Fund (Section 1)
Present Situation
Section 206.46(1), F.S., creates the STTF, and all moneys in the trust fund must be used for
transportation purposes, as provided by law, under the direction of the FDOT. The FDOT is
required to annually commit from the STTF a minimum of 15 percent of all state revenues
deposited into the trust fund for public transportation projects in accordance with ch 311, F.S.
(relating to seaport programs and facilities), ss. 332.003-332.007, F.S. (relating to airports),
ch. 341, F.S. (relating to public transit), and ch. 343, F.S. (relating to regional transportation).
Projects eligible for funding under ch. 311, F.S., include, for example, transportation facilities
(e.g., roads) within the jurisdiction of a port, under the Florida Seaport Transportation and
Economic Development Program.1 Sections 332.003-332.007, F.S., make up the Florida Airport
Development and Assistance Act, which provides funding for projects at public airports such as
1
While bus service to and from a port could qualify as an eligible project, a variety of other projects are also eligible, such as
dredging or deepening of channels, turning basins, or harbors; acquisition of land to be used for port purposes; and
construction of wharves, docks, and cruise terminals. See s. 311.07(3)(b), F.S., for a full list of projects eligible for grant
funding under the Florida Seaport Transportation and Economic Development Program.
BILL: CS/CS/SB 398 Page 3
airport master planning,2 airport development,3 and airport discretionary capacity
improvements.4
Chapter 341, F.S., relating to “public transit” (the transporting of people by conveyances, or a
system of conveyances, traveling on land or water, local or regional in nature, and available for
use by the public, including paratransit)5 could include projects such as a public transit capital
project,6 a commuter assistance project,7 a transit corridor project,8 or an intercity bus service
project.9
Chapter 343, F.S., relating to regional transportation, establishes the South Florida Regional
Transportation Authority, the Central Florida Regional Transportation Authority, and the Tampa
Bay Regional Transit Authority. As an example of currently authorized uses of public
transportation funding in the context of regional transportation, s. 343.58(4), F.S., requires
specified amounts to be transferred from the STTF to the South Florida Regional Transportation
Authority, which operates Tri-Rail, a passenger rail service in Broward, Palm Beach, and Miami-
Dade Counties. As another example, s. 341.303, F.S., authorizes specified funding from the
STTF for SunRail, a passenger rail system currently operating in Volusia, Seminole, Orange, and
Osceola counties.
Various projects under these programs may be eligible for use of state revenues in the STTF to
match available federal funds.
The 15-percent public transportation requirement does not apply to certain STTF revenues.
Current law contains a number of provisions exempting certain revenue from the 15-percent
public transportation requirement, such as those from rental car surcharges under
s. 212.0606, F.S.; from initial registration fees under s. 320.072, F.S.; and from local option fuel
taxes under s. 215.211, F.S. The FDOT advises that while state revenues in Fiscal Year 2022-
2
Defined to mean “the development, for planning purposes, of information and guidance to determine the extent, type, and
nature of development needed at a specific airport.” Section 332.004(3), F.S.
3
Meaning “any activity associated with the design, construction, purchase, improvements, or repair of a public-use airport or
portion thereof…” Section 332.004(4), F.S.
4
Defined as “capacity improvements which are consistent, to the maximum extent feasible, with the approved local
government comprehensive plans of the units of local government in which the airport is located and which enhance
intercontinental capacity at [specified] airports…” Section 332.004(5), F.S.
5
Section 341.031(6), F.S.
6
Defined to mean “a project undertaken by a public agency to provide public transit to its constituency, and is limited to
acquisition, design, construction, reconstruction, or improvement of a governmentally owned or operated transit system.”
Section 341.031(7), F.S.
7
Meaning “financial and technical assistance by the department to promote alternatives to the use of automobiles by a single
commuter.” The term includes ridesharing, transportation demand management, and transportation management association
projects. See s. 341.031(9), F.S.
8
Defined to mean “a project that is undertaken by a public agency and designed to relieve congestion and improve capacity
within an identified transportation corridor by increasing people-carrying capacity of the system through the use and
facilitated movement of high-occupancy conveyances.” See s. 341.031(10), F.S., for additional definitional requirements.
9
Defined as “regularly scheduled bus service for the general public which operates with limited stops over fixed routes
connecting two or more urban areas not in close proximity…” See s. 341.031(11), F.S., for additional definitional
requirements.
BILL: CS/CS/SB 398 Page 4
2023 are projected at over $4.7 billion, more than $1.4 billion (30 percent) of that revenue is
exempt.10
In addition, while some revenue streams are exempt from the 15-percent requirement, a
requirement for use of a given revenue stream for public transportation may still be present. For
example, s. 201.15, F.S., requires 10 percent of documentary tax proceeds deposited into the
STTF to be used for the New Starts Program and s. 339.0801, F.S., requires $10 million annually
from tag and title fees to be used for the Seaport Investment Program.
According to FDOT, “[i]t is important to note that some of the state funds allocated for public
transportation are allocated to comply with the 15% requirement specified in s. 206.46(3), F.S.,
while other state funds are allocated to comply with statutory use requirements for documentary
stamp taxes, tag and title fees, and initial registration fees.”11
The FDOT reports public transportation programming as of July 1, 2021 (in millions) as
follows:12
State Funds Programmed for Public Transportation
Percent Programmed
Part of the
Total Public Subject to the
FY 15-Percent
Transportation 15-Percent
Requirement
Requirement
2016-2017 $648.0 $487.6 16.8
2017-2018 $783.6 $530.3 17.7
2018-2019 $878.9 $598.8 20.0
2019-2020 $844.0 $568.8 19.4
2020-2021 $852.0 $545.0 18.4
2021-2022 $1,060.2 $568.0 18.0
2022-2023 $893.7 $619.6 18.9
2023-2024 $862.9 $568.9 16.8
2024-2025 $770.8 $551.9 15.9
2025-2026 $877.1 $587.3 16.6
Effect of Proposed Changes
Section 1 of the bill amends s. 206.46(3), F.S., to provide a cap on the amount of state revenues
deposited into the STTF that can be used for public transportation projects of 25 percent. Unless
otherwise specified in the General Appropriations Act, the FDOT must commit at least 15
percent, but no more than 25 percent, of state revenues for such projects. The calculation for
10
See FDOT, 2022 Agency Legislative Bill Analysis: SB 398, p. 3 (on file in the Senate Transportation Committee).
11
FDOT, 2022 Agency Legislative Bill Analysis: SB 398, p. 3
12
Id.
BILL: CS/CS/SB 398 Page 5
purposes of determining the allowable funding range for the specified projects would not include
the amount of state revenues used for federal grant matching.
Design-Build, Progressive Design-Build, and Innovative Contracting (Sections 2 and 3)
Present Situation
The FDOT is generally authorized to enter into construction and maintenance contracts and must
ensure that all project descriptions, including design plans, “are complete, accurate, and up to
date prior to the advertisement for bids on such projects.”13
Current law also authorizes the FDOT, if it determines that doing so is in the public interest, to
combine the design and construction phases of a building, a major bridge, a limited access
facility, or a rail corridor project into a single contract, referred to as a “design-build” contract.14
The FDOT is also authorized to establish a program for transportation projects that demonstrate
innovative techniques of highway and bridge design, construction, maintenance, and finance.
The innovations must intend to measure resiliency and structural integrity and control time and
cost increases on construction projects. These techniques may include state-of-the-art technology
for pavement, safety, and other aspects of highway and bridge design, construction, and
maintenance; innovative bidding and financing techniques; accelerated construction procedures;
and techniques that have the potential to reduce project life cycle costs.15
To the maximum extent practical, the FDOT must use existing processes to award and
administer construction and maintenance contracts. If the FDOT intends to use specific
innovative techniques, it must document the need for any exceptions to current law that would
otherwise prohibit use of the techniques.
The FDOT is limited to $120 million annually for the purposes of contracting for innovative
transportation projects. However, the annual cap currently does not apply to:
 Turnpike Enterprise projects, and
 Low-bid design-build milling and resurfacing contracts.16
According to the Design-Build Institute of America (DBIA), design-build projects enable the
project owner to manage only one contract, with the designer and contractor working together
from the beginning and providing consensus project recommendations to fit the owner’s
schedule and budget. The entire team addresses any necessary changes, which leads “to
collaborative problem-solving and innovation....” This method of project delivery, the DBIA
asserts, creates an inherent “culture of collaboration.”17 As described by the DBIA, the
“progressive” type of design-build contract “uses a qualifications-based or best value selection,
13
Section 337.11(1) and (2), F.S.
14
Section 337.11(7)(a), F.S.
15
Section 337.025(1), F.S.
16
Section 337.025(2), F.S.
17
See DBIA, What is Design-Build, available at https://dbia.org/what-is-design-build/ (last visited December 15, 2021).
BILL: CS/CS/SB 398 Page 6
followed by a process whereby the owner then ‘progresses’ towards a design and contract price
with the team (thus the term ‘Progressive’).”18
The Florida Transportation Builders’ Association (FTBA) advises that traditional design-build
contracting has produced nearly two decades of successful projects and that progressive design-
build contracting represents an evolution from traditional design-build, allowing better allocation
and management of unforeseen conditions and risks19 encountered during the design of the
project. Once the design-build firm is selected based on qualifications, including past
performance, the firm then works collaboratively with the FDOT to “progress or advance” the
design until the design contains sufficient detail to competitively bid the work.20 As opposed to
the FDOT’s general contracting authority, under which design plans must be complete, accurate,
and up to date prior to advertising for bids, pricing in a progressive design-build contract is
delayed until design is closer to completion.
The FTBA further advises that progressive design-build contracting is already being used by the
Greater Orlando Aviation Authority and the Tampa International Airport Authority.21 According
to the DBIA, at least two other states are currently authorized to engage in some form of
progressive design-build contracting.22
Based on a review of the FDOT’s Work Program Instructions for development of the Tentative
Work Program for Fiscal Years 2022-2023 – 2026-2027, the FDOT, if not already in use under
its existing design-build aut