Loading...
07/20/2010 Audit i H AUDIT REPORT OF MONROE COUNTY'S • INTERLOCAL AGREEMENTS WITH THE KEY LARGO WASTEWATER TREATMENT DISTRICT July 20, 2010 �r�J GouNTy.`t: 4 !its u : r ; , 'eest8 �� ,',�Iil, ,�o� •. — _ _ .• i_ 11 C+ • •••..... ••• 01. 90 F ••• 00.COUNTY. }.. Prepared by: Internal Audit Department r-- Clerk of the Circuit Court . Danny L. Kolhage, Clerk Monroe County, Florida AUDIT REPORT OF MONROE COUNTY'S INTERLOCAL AGREEMENTS WITH THE KEY LARGO WASTEWATER TREATMENT DISTRICT I TABLE OF CONTENTS �.; Page I. OBJECTIVES AND SCOPE 1 II. METHODOLOGY 1-2 III. BACKGROUND INFORMATION 2-4 IV. AUDIT CONCLUSIONS 5 V. AUDIT FINDINGS I 1. KLWTD used continuing contracts with engineering firms for projects ' costing over$1 million, contrary to Section 287.055 (2)(g), Florida 6-9 Statutes,which requires a competitive selection process. 2. KLWTD change order process for construction contracts incorrectly based on Section 189.441 Florida Statutes. 10-12 VII. EXHIBITS A. Key Largo Wastewater Treatment District Capital Project Status Report B. KLWTD Project Consolidated Expenses (North & South) $20M Grant Summary C. Invitation for Bids D. Agreement Form E. Consultants' Competitive Negotiation Act Section 287.055, Florida Statutes F. KLWTD Procurement Policy#2-210.5.4 Competitive Negotiation G. Attorney General Opinion 93-56 H. Attorney General Opinion 75-131 I. Florida Statute Chapter 189.441 Contracts J. Florida Statute Chapter 189.432 Definitions; Community Improvement Authority Act K. Attorney General Opinion 2010-20 VIII.AUDITEE RESPONSES—KLWTD A. KLWTD Response, a four (4) page memorandum. B. KLWTD exhibits to the memorandum. (- 1 j f it AUDIT REPORT OF MONROE COUNTY'S INTERLOCAL AGREEMENT WITH THE KEY LARGO WASTEWATER TREATMENT DISTRICT I I. OBJECTIVES AND SCOPE ,= At the request of the Monroe County Clerk of the Circuit Court, the Internal Audit Department has completed a review of the Interlocal Agreement (Agreement) between the County and the Key Largo Wastewater District (KLWTD) and related amendments. The Agreement provides $20 million dollars in assistance to the District to develop centralized wastewater'treatment, and collection and disposal services on a regional basis. The objectives were to determine compliance with state and local laws, ordinances, and agreements, whether expenditures were appropriate, the degree of compliance with established operating policy and procedures, and to review the extent of contract oversight provided. II. METHODOLOGY A. We interviewed the following personnel to obtain information about the status of the Key Largo Wastewater Treatment District project: 1. Martin D. Waits, Chief Financial Officer KLWTD 2. Monroe County Senior Administrator—Sewer Projects �,. 3. Monroe County Director of Engineering Services 4. The Clerk's Finance Department personnel 5. The County Attorney's Office 6. Edward Miller, Construction Project Administrator,Weiler Engineering Corporation B. Internal Audit Department examined the following documents: 1. Florida Statute Chapter 189 Special Districts: General Provisions 2. Florida Statute Chapter 287.055 Consultant's Competitive Negotiations Act 3. Monroe County local ordinances,resolutions,policies and procedures 4. KLWTD reimbursement requests 5. Monroe County Invoices for KLWTD 6. KLWTD Procurement Policy 7. Minutes of the Key Largo Wastewater District Meetings 8. Interlocal Agreement Between The Board of County Commissioners Of Monroe County, Florida and The Key Largo Wastewater Treatment District dated June 15, 2005 9. First Amended and Restated Interlocal Agreement between The Board of County Commissioners Monroe County, Florida and The Key Largo Wastewater Treatment District dated July 20, 2Q05 10. Second Amendment To The Amended and Restated Interlocal Agreement between The Board of County Commissioners of Monroe County, Florida, and The Key Largo l Wastewater Treatment District dated January 16,2008 I 1 11. Various Attorney GeneralOpinions inions p C. The Internal Audit Department reviewed the contracts to ensure that the terms and conditions were being complied with as documented within the agreement. P � III. BACKGROUND INFORMATION The Key Largo Wastewater Treatment District (KLWTD) was created by the Legislature of the State of Florida, pursuant to House Bill 471, Chapter 2002-337, Laws of Florida, as an independent special district to plan, develop and operate facilities for the construction and treatment of wastewater. The KLWTD is administered by a five (5) member Board of Directors elected pursuant to Chapter 189 Special Districts: General Provisions, Florida Statutes. The District is authorized to adopt resolutions and policies necessary for implementation, regulation and enforcement, consent with the purposes of the District. Ti According to the Key Largo Wastewater Treatment District Act the district boundaries include the territory consisting of Key Largo, including all lands east of Tavernier Creek, including Tavernier, Key Largo, and Cross Key, with the exception of Ocean Reef. Wastewater funds and functions for this location were transferred from the Florida Keys Aqueduct Authority (FKAA) pursuant to an Interlocal Agreement dated February 26,2003 between the District,Monroe County,and FKAA. The total system construction cost is projected to total $143,333,343 upon completion of the system. The North Components and South Components projects combined are projected to cost $131,437,688. The Key Largo Trailer Village and Key Largo Park demonstration project represents the difference. The estimate for the total project cost in Weiler's 2005 Facilities Plan was $157 million, the estimated cost today has decreased by$14 million. Grants now in hand, total $43,990,243 and constitute 31% of total funding if additional grants are not obtained. Loan balances of$77,464,946 and $1,000,000 in land and equipment purchases are projected to be funded from assessments. The balance of funding required is estimated to be $17,434,742 as of March 31, 2010. See Exhibit A — Key Largo Wastewater Treatment District Capital Project Status Report. INTERLOCAL AGREEMENT I1 The County's Comprehensive Plan required that certain wastewater treatment levels be achieved in unincorporated areas of the County by 2010. The County was required to eliminate the use of cess pits and septic systems in the Key Largo area of the lower keys and desired to provide a regional wastewater collection, treatment and disposal system. The County agreed to reimburse the District up to twenty million dollars in the Interlocal Agreement for project costs expended by the District, less County Costs. An advance of($3,700,000) three million seven hundred thousand was provided as part of Amendment Number One to the First Amended and Restated Interlocal Agreement.dated August 16, 2006. As of March 5, 2010, the County has contributed$12, 875,813.80. See Exhibit B— KLWTD Project Consolidated Expenses (North &South) $20M Grant Summary. 2 Li PROFESSIONAL SERVICES The District issued a Request For Qualification (RFQ) professional designservices for future wastewater collection system expansions on September 13, 2006. Thirteen engineering firms submitted statements of qualifications. The submittals were evaluated by a five member team, and seven of the thirteen firms were selected for the engineering library. The selection committee included the General Manager KLWTD, Chuck Fishburn, the Engineer KLWTD, Ed Castle,Weiler Engineering, Tim Bergin, Consulting Engineer and Whit Van Cott, Consulting Engineer. The committee members were asked to select seven firms based on the following criteria listed in the RFQ: • Use of innovative and alternative designs and construction techniques to produce more cost-effective wastewater system • Wastewater vacuum collection system design and permitting experience • Wastewater gravity collection system design and permitting • Existence or availability of a local office • Staff qualifications and commitment to project • Estimated project cost accuracy • History of change orders for projects -' • Costs of projects per household • Success of projects in Monroe County • Success of projects in island environments • Wastewater STEP and low pressure system design and permitting experience According to the Memo to the KLWTD Board from Margaret Blank,PE dated September 13, 2006 the seven firms selected had a significant presence in Florida and considerable vacuum sewer collection system experience. The current library of engineering firms was selected in accordance with KLWTD Policies and Procedures Professional Services Section 2-210.05.3. The seven firms chosen for the Professional Services library are Wade Trim, Eckler Engineering, CPH Engineers, r Perez Engineering, Boyle Engineering, WF McCain/E-Sciences, and Reiss Environmental. Weiler is the District engineer. Since the project was large and required different areas of design expertise which included eleven basins, some gravity, some vacuum, a treatment plant, and deep wells the project was broken into various pieces. The District executed continuing contracts with the seven firms in accordance with Policies and Procedures Section Professional Services 2-210.05.3(4)(d). To date the District has used five of the seven library firms to design about 10 different pieces of the project over a five year time period. The estimated costs of design, engineering, and construction management for the total project are $16,621,565. When a Work Authorization to design a specific piece of the project is to be issued, the District General Manager, Construction Manager and District Engineer rank the seven library firms again based upon additional criteria specific to the work to be performed on that piece of the project. Based on that evaluation, one firm is selected for Competitive Negotiation. A Work Authorization is approved by Commissioners at a District meeting 3 n CONSTRUCTION AGREEMENTS According to District Management, KLWTD has separated or carved out the project into segments or phases since there are eleven basins. Each of the eleven basins was then divided into numerous phases. Some phases are competitively bid and advertised. Many of the phases lend themselves to unit price contracts because of the repetitive nature of the work. In a unit price contract,a project is divided into specific tasks called work units, and a price is attributed to each. The unit price includes labor (salary, fringe benefits and overhead), materials and profit. The estimate of quantities of work to be done is tabulated in the proposal and although stated with as much accuracy as possible, is approximate only and is assumed solely for the basis of calculation upon which the award of the contract shall be made. Payment to the contractor for unit price work is made based on the measurement of work such as linear feet of pipe actually installed. The unit price contract provides the District with information which is common to other basin projects. According to the District,bids to date include the North Transmission Line and South Transmission Line, Collection System Phases A-1, A-3, B-1, C-2, D2, El, E2, and F-1, Vacuum Station D, Deep Well, Treatment Tanks and Plant Expansion. There are five construction contractors working at this time who were selected initially by a bid process. In the interest of expediting construction, the District uses the change order process to award additional work. The District awards a contract to the low bidder when competitive sealed bidding is the method used for procurement. The invitation for bids states "In addition, provided the successful bidder is performing satisfactorily, Owner may offer the successful bidder similar work on other collection systems, basins and/or phases at the unit prices bid for this work. Contractor will be expected to accept any and all additional work at the unit prices bid for this work." See Exhibit C - Invitation for Bids. All other work was contracted by change orders. When a contractor has completed one phase they may request another phase or District management may contact the contractor and see if they would like to construct another phase. The plans and specifications for that phase are then given to the contractor to prepare a proposal if KLWTD is satisfied with this contractor's work. The contractor submits their proposal to the District. KLWTD then compares the total dollar proposal at proposer's unit costs with other contractor's total dollar costs using quantities associated with the new phase and unit costs from recent bid results and/or other current contractor's unit costs. Mobilization is removed as a cost since the contractor is already working. The award is added as a change order to another contract and is approved by the KLWTD Board. The Policies and Procedures of the District do not address the change order process for construction contracts. However, on the Agreement Form for the part of the contract originally bid it states "Owner may offer Contractor the opportunity to perform similar work on other collection system basins and/or phases at the unit prices bid for this work, and Contractor agrees to accept all work that is offered." See Exhibit D—Agreement Form. 4 IV.AUDIT CONCLUSIONS 1. KLWTD used continuing contracts with engineering firms for projects costing over $1 million, contrary to Section 287.055 (2)(g), Florida Statutes, which requires a competitive selection process. KLWTD did not publicly announce each occasion when professional services must be purchased for a project in accordance with Florida Statute 287.055. 2. KLWTD change order process for construction contracts incorrectly based on Section 189.441 Florida Statutes.. I 5 r-� V.Audit Findings: 1. KLWTD used continuing contracts with engineering firms for projects costing over $1 million, contrary to Section 287.055 (2)(g), Florida Statutes, which requires a competitive selection process. Finding: The Consultants' Competitive Negotiation Act Section 287.055, Florida Statutes provides that professional services, including architectural, professional engineering, landscape architecture, and {_ registered surveying services, be acquired pursuant to a formal competitive selection and negotiation process. The Act generally requires that the District publicly announce, in a uniform and consistent manner, each occasion when professional services must be purchased for a project with a basic construction cost that is estimated by the agency to exceed $250,000, or when a planning or study activity fee is estimated to exceed $25,000. Additionally, the Act provides that a continuing contract for professional services may be entered into for construction projects when the construction costs do not exceed $1 million, for a study activity when the fee for such professional service does not exceed $50,000, or for work of a specified nature as outlined in the contract. These parameters were increased to $2 million, and $200,000, respectively. The construction project as a whole was estimated to be $157 million which is over the stated threshold amount. The estimated costs of design, engineering, and construction management for the total project are $16,621,565. Requests for qualifications were issued in 2006 and a selection committee was established for evaluating the qualifications of responding firms, ranking the firms based on various qualification criteria, and recommending qualified firms to the Board. The seven Board-approved engineering firms were placed in a pool and continuing contracts were executed. When proposed construction projects were scheduled to begin, firms were selected from the continuing contract pool. Section 287.055(4)(a), Florida Statutes, requires the District, for each proposed project, to evaluate current statements of qualifications and performance data on file, together with those that may be submitted by other firms regarding the proposed project, and to conduct discussions with no fewer than three firms regarding their qualifications, approach to the project, and ability to furnish the required services. The announcement must include a general description of the "project" and indicate how interested consultants may apply for consideration. See Exhibit E - Consultants' Competitive Negotiation Act Section 287.055, Florida Statutes The District issued continuing contract task orders for the design, permitting, bidding, and construction phase engineering services to six engineering firms for wastewater projects in which construction costs exceeded the$1 million threshold in Florida Statute 287.055 (2)(g),as follows: 1-1 6 J KLWTD Project Professional Services Construction r Total Part Cost Sub Cost Cost Construction Management $2,700,000 i Weiler $2,700,000 Transmission Line $500,748 CPH $5,715,056 $6,215,804 Basins A&D $706,218 CPH $14,809,885 ' $15,516,103 Basin B $564,079 Eckler + CPH $8,572,854 $9,136,933 Basin C $492,454 ; Wa CPH + , $10 309 861 $10 802 315 Basins E & F $900,229 I Eckler $11,057,300 $11,957,529 Basins G& H $712,535 McCain $10,372,966 $11,085,501 Basins I,J & K $1,823,026 ; Weiler $25,640,942 $27,463,968 Treatment Plant $1,349,696 : Arcadis $25,705,599 $27,055,295 Based on the information from Key Largo, when a Work Authorization to design a specific piece of our project is to be issued, the District (General Manager, Construction Manager, District Engineer) ranks the seven library firms again based upon additional criteria specific to the work to be performed on that piece of the project. (Criteria for designing the treatment plant might be different than the criteria for designing a vacuum collection basin.) Based on that evaluation, a firm is selected for Competitive Negotiation in accordance with #2-210.05.4 and a Work Authorization eventually issued. See Exhibit F—KLWTD Procurement Policy#2-210.5.4 Competitive Negotiation. The CCNA definitions and applicable sections are as follows: f) "Project" means that fixed capital outlay study or planning activity described in the public notice of the state or a state agency under paragraph (3)(a). A project may include: 1. A grouping of minor construction,rehabilitation, or renovation activities. 2. A grouping of substantially similar construction,rehabilitation, or renovation activities. (g) A "continuing contract" is a contract for professional services entered into in accordance with all the procedures of this act•between an agency and a firm whereby the firm provides professional services to the agency for projects in which the estimated construction cost of each individual project under the contract does not exceed $2 million, for study activity if the fee for professional services for each individual study under the contract does not exceed $200,000, or for work of a specified nature as outlined in the contract required by the agency, with the contract being for a fixed term or with no time limitation except that the contract must provide a termination clause. Firms providing professional services under continuing contracts shall not be required to bid against one another. (3) PUBLIC ANNOUNCEMENT AND QUALIFICATION PROCEDURES.-- (a)1. Each agency shall publicly announce,in a uniform and consistent manner, each occasion when professional services must be purchased for a project the basic construction cost of which is 7 ', I estimated by the agency to exceed the threshold amount provided in s. 287.017 for CATEGORY FIVE or for a planning or study activity when the fee for professional services exceeds the threshold amount provided in s. 287.017 for CATEGORY TWO, except in cases of valid public emergencies certified by the agency head. The public notice must include a general description of the project and must indicate how interested consultants may apply for consideration. 2. Each agency shall provide a good faith estimate in determining whether the proposed activity meets the threshold amounts referred to in this paragraph. (b) Each agency shall encourage firms engaged in the lawful practice of their professions that desire to provide professional services to the agency to submit annually statements of qualifications and performance data. See Exhibit E—Florida Statute 287.055. We also reviewed Attorney General Opinions on the subject. Advisory Legal Opinion —AGO 93- 56 Footnote 1 states: [1] While this office has not been asked to comment on this arrangement I would note that the continuing contract provision of s. 287.055, F.S. (1992 Supp.),represents an exception to the general competitive bidding provisions of the Act and should be read narrowly and utilized sparingly in order to avoid an appearance of circumventing the requirements of the statute. Cf., City of Lynn Haven v. Bay County Council of Registered Architects, Inc., 528 So.2d 1244, 1246 (1 D.C.A. Fla., 1988) (in which the court determined that the City's procedures contravened the legislative intent and undermined the effectiveness of the CCNA. Specifically, the City's bidding procedure would not effectuate an equitable distribution of contracts among the most qualified firms pursuant to Section 287.055(4),Florida Statutes. See Exhibit G—AGO 93-56. Advisory Legal Opinion—AGO 75 — 131 SUMMARY: A city may employ a city engineer under a yearly contract to provide general advice and assistance without complying with the Consultants' Competitive Negotiation Act, s. 287.055, F. S. However, a particular engineering project must be publicly announced, notices sent to interested engineering firms, and, if the compensation for the engineering services is more than $5,000, at least three engineering firms must be considered before finally negotiating an engineering contract for the project, as required by the act. The Consultants' Competitive Negotiation Act (the "CCNA" hereafter) was adopted in 1973 for the purpose of promoting competition among firms supplying professional architectural, engineering, and land surveying services to public agencies. Attorney General Opinion 074-191. Except in an emergency, the agency is required to make a public announcement on "each occasion" when professional services are required to be "purchased" and, in addition, to mail the announcement to each "certified" firm which has requested notification of the need for the services. The announcement must include a general description of the "project" and indicate how interested consultants may apply for consideration. Section 287.055(3), F. S. If the compensation for the professional services in question will exceed $5,000, the public agency is required to consider at least three firms in the light of various "factors" listed in the statute "with the object of effecting an equitable distribution of contracts among qualified firms," s. 287.055(4), id.; and, under s. 287.055(5), the agency is required to "negotiate a contract with the most qualified firm for professional services at compensation which the agency determines is fair, competitive, and reasonable. . . .". See Exhibit H—AGO 75-131. 8 it The Legislature has recognized in Section 287.001, Florida Statutes, that fair and open competition is a basic tenet of public procurement, and that such competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically. Absent utilization of the required competitive selection process, the District's ability to demonstrate the fair, equitable, and economic procurement of professional services is limited. In summary, the KLWTD needs to publicly announce each occasion when professional services must be purchased for a project subject to the threshold amounts. Recommendation(s): - 1. KLWTD Management should consider obtaining an official Attorney General Opinion on the public announcement issue. 2. We recommend that the District establish written policies and procedures to ensure that professional services are obtained pursuant to competitive selection and negotiation when the construction cost or the fee for professional services is estimated to exceed the thresholds specified in Section 287.055,Florida Statutes. KLWTD Response: KLWTD management believes it has fully complied with Section 287.055(2)(g), Florida Statutes. The basis for this belief is detailed in Section VIII of this report in a Memorandum prepared by District Counsel, Thomas M. Dillon, to Chief Financial Officer, Martin D. Waits, dated June 18, 2010. See exhibit VIII A and B—Auditee Responses—KLWTD. KLWTD management believes this finding is incorrect and unsupported by the law or the facts, and therefore should be removed from the Audit Report. Auditor's Comment: Attorney General Opinion 2010-20, CCNA, price and qualitative considerations dated June 7, 2010 further defines the requirement for the District to publicly announce each occasion when professional services must be purchased for a project. See Exhibit K—Attorney General Opinion 2010-20. i 9 L_i 2. KLWTD Change Order Process for Construction Contracts Incorrectly Based on Section 189.441 Florida Statutes. Finding: KLWTD competitively bid Phase 1 of its wastewater system project and in April 2006 awarded a contract to J.A. LaRocco Enterprise Inc. for $1,399,986, the low bidder. On October 6, 2006, KLWTD passed Resolution Number 50-10-06, which states that the District will award the contract for Phase II to LaRocco as a Change Order, because the Board believed there was no basis to assume that a responsible bidder would bid a lower price than that proposed by J.A. LaRocco Enterprise Inc. and competitive bidding of the North Transmission Forcemain, Phase II project would consume District resources and funds without any concomitant benefit to the District. Basin F-2 for$1,800,199 was also awarded by Change Order. The District awards a contract to the low bidder when competitive sealed bidding is the method used for procurement. The invitation for bids states "In addition, provided the successful bidder is performing satisfactorily, Owner may offer the successful bidder similar work on other collection systems, basins and/or phases at the unit prices bid for this work. Contractor will be expected to accept any and all additional work at the unit prices bid for this work." See Exhibit C - Invitation for Bids. All other work was contracted by change orders. When a contractor has completed one phase they may request another phase or District management may contact the contractor and see if they would like to construct another phase. The plans and specifications for that phase are then given to the contractor to prepare a proposal since KLWTD is satisfied with this contractor's work. The contractor submits their proposal to the District. KLWTD then compares the total dollar proposal at proposer's unit costs with other contractor's total dollar costs using quantities associated with the new phase and unit costs from recent bid results and/or other current contractor's unit costs. Mobilization is removed as a cost since the contractor is already working. The award is added as a change order to another contract and is approved by the KLWTD Board. The Policies and Procedures of the District do not address the change order process for construction contracts. However, on the Agreement Form for the part of the contract originally bid it states "Owner may offer Contractor the opportunity to perform similar work on other collection system basins and/or phases at the unit prices bid for this work, and Contractor agrees to accept all work that is offered." See Exhibit D—Agreement Form. The Key Largo Wastewater Treatment District has the authority to adopt and publish procedures to govern procurement of supplies, services, professional services, and construction. According to KLWTD Policy and Procedure 1-101.01 the policies are based on competitive principles consistent with Section 189.441 Florida Statutes and other Florida Statutes. The District's opinion is that 189.441 is statutory authority for non-competitive procurement. Section 189.441 provides,in part: Contracts for the construction of projects and for any other purpose of the authority may be awarded by the authority in a manner that will best promote free and open competition, including advertisement for competitive bids; however, if the authority determines that the purposes of this act will be more effectively served thereby, the authority may award or cause to li 10 P be awarded contracts for the construction of anyproject,includingdesign-build contracts, or any part thereof, or for any other purpose of the authority upon a negotiated basis as determined by the authority. According to information supplied by the District "In order for the District to use non-competitive I I procurement, the District must make a determination that the purposes of the act, and the best interests of the District will be served thereby." See Exhibit I — Florida Statute Chapter 189.441 Contracts Internal Audit research revealed that KLWTD is not a Community Improvement Authority. 189.441, FS,is part of the "Community Improvement Authority Act" (which starts at s. 189.430 and ends at 189.444, FS) and would not be applicable to KLWTD since the District is not a community improvement authority. To meet the requirements of a Community Improvement Authority the population has to be at least 1.5 million and have at least two professional sports facilities. The law that created the Act is 2000-348. See Exhibit J — Florida Statute Chapter 189.432 Definitions; Community Improvement Authority Act. The District should not use non-competitive procurement based on Florida Statutes Section 189.441 since the District does not meet the definition of a Community Improvement District. Florida Statute Section 287.001, states that fair and open competition is a basic tenet of public procurement, and that such competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically. Note that the current KLWTD estimate to complete the project is $14 million less than the original 2005 estimate. However, absent utilization of the required competitive process, the District's ability to demonstrate the fair, equitable, and economic procurement of construction contracts is limited. Recommendation(s): 1. We recommend that KLWTD construction contracts be competitively awarded according to applicable Florida Statutes. If any question remains as to the applicability of Florida Statute 189.441 by KLWTD an official Attorney General Opinion should be obtained. KLWTD Response(s): KLWTD agrees that the District is not authorized to waive competitive processes under Section 189.441, Florida Statutes. However, KLWTD management believes it has competitively awarded all construction contracts according to all applicable Florida Statutes, including section 255.20, Florida Statutes, the Local Bid Law. The basis for this belief is detailed in Section VIII of this report in a Memorandum prepared by District Counsel, Thomas M. Dillon, to Chief Financial Officer, Martin D. Waits, dated June 18, 2010. KLWTD management believes this finding is incorrect and unsupported by the law or the facts, and therefore should be removed from the Audit Report. 11 Auditor's Comment: KLWTD Management is now.in Agreement that Section 189.441 is not applicable to the District. The change order process used by KLWTD to award construction contracts is not defined in their policies and procedures. An official Attorney General Opinion should be obtained to support their method of awarding construction contracts. • • i • • • • • 12 r-, i � �I • VII. EXHIBITS (-' EXHIBIT A Key Largo Wastewater Treatment District Capital Project Status Report I I ' '`1,111f KEY LARGO WASTLiWATER TREATMENT DISTRICT x; P.O. BOX 491; KEY LARGO, FLORIDA 33037 (305) 453-5804 FAX(305) 453-5807 • I_I Mem.o To Board of Commissioners ss oners From: Marty Waits Date: 03/25/10 Re: Capital Projects Status Report - r Commissioners, The financial report of all Sources& Uses of Funds for capitalprojects through March 31 2010, P is attached for your review. I offer the following commentary to assist you in identifying the information which I feel is particularly worthy of note: Consolidated Project§ources&Uses of Funds(Paste 1) The North Components and South Components projects combined are currently projected to cost $131,437,688.When combined with the cost of the KLTV/KLP demonstration project,total system construction cost is projected to total$143,333,343 upon completion of the system. Grants now in hand, including $2,500,000 of Islamorada ACOE funds, total $43,990,243 and will constitute 31%of total funding if no additional grants are obtained.Assessments are projected to fund $77,464,946 in loans and $1,000,000 in land and equipment purchases. The balance of funding required is currently projected to be $17,434,742. This requirement is a worst case scenario because it assumes no additional grant funding,state or federal,will be obtained. Design &engineering costs are projected to be approximately 5.4% of total project cost Project management expense is projected to be approximately 6.4%of total project cost. North Components Sources&Uses of Funds(Pape 2) The North Components project is currently projected to cost$72,212,720 and is totally funded with $22,638,000 in grants (31%) and $49,574,720 (69%) in bans, essentially all SRF related debt. Since 98% of all work is either completed or under firm contract, this projected cost upon • completion is considered a very accurate estimate. On a financial basis,the North Components project is 84%complete. • North Components Collection System Detail(Pane 3) All collections systems are essentiallycomplete ys p ete except for the unique properties. The completed cost of$35,268,473 for collection systems in Basins A—D is projected to be approximately 8.5%, or$3 million,less than Weiler's 2005 Facilities Plan estimate. South Components Sources&Uses of Funds(Pane 4) The South Components project is currently projected to cost $59,224,968, which is $13 million (18%) less than Weiler's 2005 Facilities Plan estimate.At this time approximately$17.5 million in funding has not been specifically identified, and will have to be provided by additional grants and/or loans funded by monthly rates. On a financial basis,the South Components project is 21%complete. • South Components Collection System Detail(Pane 5) All seven phases in Basins E and F are under contract, and total just over half of the projected cost in Weiler's 2005 Facilities Plan. Basins G & H, based on two phases under contract and recent engineering cost estimates for the other four phases, will also total just over half of the projected Facilities Plan cost. With three out of five phases contracted in Basin I, the cost is projected to be approximately two-thirds of the cost projected in the Facilities Plan. Conservatively projecting the cost for Basins J and K at 75%of the Facilities Plan cost, the total construction cost for all South Components collection systems is estimated to be$48,071,208. Total System Construction Cost The total project cost predicted in Weiler's 2005 Facilities plan was $157,000,000. Total project cost is now estimated to be approximately$143,000,000,which is$14,000,000 less than originally anticipated. 1v\ 1 . Key Largo Wastewater Treatment District TOTAL PROJECT SOURCES AND USES OF FUNDS Prepared By:Marty Waits Date:March 31,2010 FUNDING PROJECTION North&South Demonstration Total Components Project Project Grants(Committed): Various Federal,State&Local $ - $ 11,002,243 $ 11,002,243 FDEP Grant 6,038,000 6,038,000 Corps of Engineers 10,500,000 10,500,000 Monroe County Grant 19,000,000 19,000,000 35,538,000 11,002,243 46,540,243 27% 92% 32% SDC Prepayments 1,000,000 1,000,000 1% 1% Loans(Required): 5 SRF Related Loans 47,464,946 893,412 48,358,358 $30 M Bank Loan 30,000,000 30,030,000 New Grants or Operations Funded Loans _ 17,434,742 _ 17,434,742 94,899,688 893,412 95,793,100 72% 8% 87% Total Funds $ 131,437,888, $ 11,895,856 $ 143,333,343 ESTIMATED PROJECT COST - Design,Engineering&Conat.Mgmt: Weiler Engineering-Const.Mgmt. $ 2,700,000 $ 365,872 3,065,872 Transmission Unes Engineering 500,748 500,748 Collection Systems Engineering 5,198,541 5,198,541 Treatment Plant Engineering 1,349,696 1,349,696 Plant Site Mitigation 423,797 423,797 Other Expenses 2,300,000 71,268 2,371268 KLWTD Staff Expense(Mgmt,Legal) 3,400,000 311,843 3,711,643 15,872,782 748,783 18,621,565 Construction: Design Build Contract - 11,146,872 11,148,872 Transmission Unes 5,715,058 5,715,056 Collection Systems&Vacuum Stations 83,339,681 83,339,681 Regional Plant 25,705,599 25,705,599 ( ' Land Acquisition 804,57D 804,570 115,564,908 11,146,872 126,711,778 Total Expenses $ 1311437,688 S 11,895,655 $ 1431333,343 (1) Key Largo Northern Half TOTAL PROJECT SOURCES AND USES OF FUNDS Prepared By:Marty Waits Date:March 31,2010 FUNDING COMMITMENT % Total Received Balance Due Utilized Grants: FDEP Grant $ 6,038,000 $ 6,038,000 $ 100% Corps of Engineers 4,600 000 Monroe CountyGrant 3,537,5i 1 1,082,489 77°,6 12,000,000 10.583,565 1,416,435 88% 22,638,000 20,159,078 2,478,924 89% 31% , Loans: _i SRF Preconstruction Loan 2,670,199 2,670,199 - 100% SRF Loan Commitments 10,000,000 10,000,000 100% SRF/RWA Bridge Loan 14,794,747 14,794,747 - 100% SRF Bond Funded Loan 20,000,000 12,273,320 7,728,680 61% $30M Bank Loan 2.109,774 - 2,109.774 49,574,720 39,738,266 9,836,454 80% , 69% Total Funds $ 72 212 720 $ 69,897,3442 $ 12,316,378 83% ESTIMATED PROJECT COST Est.Total Billings to Balance % Completed Coat 3/31/2010 - To Complete Expended st. Design,Engineering&Con Mgmt Weiler Engineering-Const.Mgmt. $ 2,000,000 $ 1,534,765 $ 465,235 77% Transmission Line-CPH 206,351 208,351 - 100% -Additional Work 10,000 9,758 242 98% Basins A&D-CPH 694,808 676,434 18,174 97% -Vacuum Station C.O. 11,610 - 11,810 0% Basin B-Eckler 470,601 470,601 - 100% -CPH(Survey) 93,478 93,478 - 100% _ Basin C-Wade Trim 385,678 346,442 39,138 90% -CPH(Survey) 106,876 106,876 - 100% Treatment Plant-Arcadis 742,400 742,400 - 100% -C.O. 174,282 174,282 100% -Deep Well Oversight 333,414 321,676 11,738 96% . -Plant Oversight 99,600 99,800 - 100% Plant Site Mitigation 423,797 423,797 - 100% Other Expenses 1,300,000 1,019,762 280,238 78% KLWTD Staff Expense(Mgmt,Legal) 1,800,000 1,634,154 185,846 91% 8,852,595 7,880,376 992,219 89% Construction: Transmission Line-LaRocco 2,386,053 2,386,053 - 100% Collection Systems(Schedule A) 35,268,473 29,743,958 5,524,515 84% I-I Disposal Well-Youngquist/Ozone 5,272,3132 5,272,382 - 100% Treatment Tanks-Precon 3,546,237 3,350,635 195,602 94% Treatment Plant-Wharton-Smith 16,887,000 12,564,528 4,322,472 74% 63,380,125 53,317,536 10,042,589 84% Total Expenses $ 72,212,720 $ 81,177,912 $ 11,034,808 85% Facilities Plan Estimate $ 68,049,675 (2) La. -� Schedule A NORTHERN HALF COLLECTION SYSTEM CONSTRUCTION COSTS Prepared By:Marty Waits Date:March 31,2010 Est.Total Billed through 03/3112010 Est.Balance % Completed Cost Construction Materials To Complete, Expended Basin A Phase 1 (Fountain$1,179,001) $ 1,323,876 $ 1,093,038 $ 144,875 $ 85,963 94% Phase 2. (GlobeTec 8 984,488) 1,091,254 964,488 126,786 - 100% Phase 3 (GlobeTec$1,189,390) 1.418,776 1,189,390 229,386 100% lJ, - Phase 4 (Fountains 828,335) 979,247 757,472 150.912 70,863 93% Phase 5 (Fountain$1,183,241) 1,427,718 1,084,451 244,477 98 790 83% $ 6,240,871 $ 5,088,839 $ 896,416 $ 255,616 98% Basin B Phase 1 (Ric Man 51,022,630) 1,230.788 1,022,530 208,258 100% Phase 2 (Ric-Man$1,150,980) 1,307,928 1,150,980 156,948 - 100% Phase 3 (Metro $1,360,639) 1,570,969 1,284.673 220,330 65,966 96% Phase 4 (LaRocco$1,353,611) 1,592,051 1,258,406 238,440 95,205 94% Phase 5 (Metro 61,184,941) 1,381,126 1,125,693 198.185 59,248 96% Phase 6 (Fountain 51,408,600) 1,489,992 1,2637 81,492 144,803 90% $ 8,572,854 $ 7,105,979 $1,101.653 $ 385,222 96% Basin C Phase 1 (Metro$2,372,439) 2,726,491 2,254,118 344,052 128,321 95% Phase 2 (Metro$1,367,489) 1,572,733 1,288,494 205,224 79,015 95% Phase 3 (Fountain$1,987,248) 2,247,920 1,635,914 280,674 331,332 85% Phase 4 (Metro$3,460,917) 3,762,717 1,718,478 301,800 _ 1,742,439 54% $ 10,309,861 $ 6,897,004 $1,131,750 $ 2,281,107 78% Basin D Phase 1 (LaRocco$1,737,603) 1,973,225 1,575,953 235,422 161,850 92% Phase 2 (LaRocco$1,717,300) 1,934,613 1,459,481 217.313 257,819 87% Phase 3 (LaRocco$1,322,770) 1,531,028 1,142,899 208 179,871 88% $ 5,438,866. $ 4,178,333 $ 660,993 $ 599.540 89% Unique Properties $ 1,500,000 $ - $ - 1,500,000 0 o � Vacuum Stations I Vac A (Overholt$1,139,680) 1,686,397 616,630 546,737 523,030 69% Vac D (Overholt$ 896,014) 1,443,751 896,014 547,737 - 100% $ 3,130,148 $ 1,512,644 $ 1,094,474 $ 523,030 33% Miscellaneous Materials $ 75,873 $ - $ 75,873 $ - 100% TOTAL CONSTRUCTION COST $ 36.•® $24,782,798 =$4�981,:189 ..$ 5,624,616 84% Facilities Plan Estimate $ 38,545,512 (3) 1 ' Key Largo Southern Half ;r TOTAL PROJECT SOURCES AND USES OF FUNDS Prepared By:Marty Waits Date:March 31,2010 FUNDING PROJECTION SG II 1 Total Received Balance Due Utilized 1 Grants(Committed): Corps of Engineers 5,900,000 3,101,131 2,798,869 53% Monroe County Grant 7,000,000. 3,358,144 3,841,858 48% 12,900,000 6,459,275 6,440,725 50% 22% SDC Prepayments 1,000,000 830,569 169,431 83% 2% Loans(Required): o $30 M Bank Loan 27,890,228 95,750 27,794,476 0% r New Grants or Operations Funded Loans 17,434,742 17.434,742 0% 1 45,324,968 95,750 45,229,218 0% 78% 1-1 Total Funds $ 59,224,988 $ 7,385,594 $ 51,869.943 12% ESTIMATED PROJECT COST Est Total Billings to Balance % Completed Cost 3/31/2010 To Complete Expended Design,Engineering&Coust.Mgmt: Weiler Engineering-Const.Mgmt. $ 700,000 $ 139,348 $ 560,652 20% I Transmission Line-CPH 284,397 280,993 3,404 99% __1 Basins E&F-Eckler 875,839 851,534 24,305 97% j Ocean Cay Design-Eckler J 24,390 - 24,390 0% Basins G&H-McCain 712.535 621,452 91,083 87% II, Basins I,J&K-Weiler 1,823,026 1,836,858 186,368 90% Other Expenses 1,000,000 282,028 717,974 28% KLWTD Staff Expense j (Mgmt,Legal) 1,800,000 268,818 1,333,182 17% 7,020,187 4,078,829 2,941,358 58% Construction: Transmission Line-Metro 3,329,003 630,600 2,698,403 19% Collection Systems-Basins E-K 48,071,208 6,758,054 41,313,154 14% Land Acquisition • 804,570 804,570 100% 52,204,781 8,193,224 44,011,557 16% Total Expenses $ 59,224,968 $ _L,053 $ 46,952,915 21% Facility Plan Estimate $ 72,140,000 (4) I L Z. • Schedule A I SOUTH COMPONENTS COLLECTION SYSTEM CONSTRUCTION COSTS Prepared By:Marty Waits Date:March 31,2010 ,—'I Eat.Total Billed through 0313112010 Eat Butane % _ 1 Completed Cost Construction Materials To Complete Expended Basin E-1,2 8<F-t —_ (Redland$1,870,273) $ 2,259,391 861,838 S 389,118 $ 1,008,435 55% Basin F Phase 2 (LaRocco$1,800,1891 2,068,116 1,371,460 287.917 428,739 79% r Phase 3 (Metro $1,711,195) 1,959,245 1,499,427 281,538 198,280. 90% L Phase 4,6 (Rsdland 81,800,013) 1,848.157 _ 258,625 348.144 1,243,308 33% $ 8,134,909 $3,989,350 $1,266,717 $ 2,878,842 65% Weller Estimate E&F $ 14,837,000 _ Basins G&H 13-1&H-1 (Metro 82,801,873) 3,077,148 124,604 189,709 2,762,835 10% Phase 2 Engineers Estimate 1,135,964 1,135,984 _ 1 Phase 3 Engineers Estimate 1,512,787 - - 1,512,787 Phase 4 Engineer's Estimate 2,027,559 - - 2,027,559 Phase 5 Engineer's ES6mate 1�107,608 - 1,i07.508 $ 8,860,966 $ 124.604 $ 189,709 $ 8,548,653 4% Facilities Plan Estimate $ 17,015,000 Phase 1 Stall Estimate $ 2,000,000 - - 2,000,000 Phases 2,3 (Larocco $2,165,266) 2,467.755 - 121,201 2,348.554 Phase 4 (Fountain$1,496,057) 1,749,187 119,880 218,673 1,410,634 Phase 5 Staff Estimate 2 000 000 - 88,797 1,911,203 6,216,942 $ 119.880 $ 428,671 5 7,668,391 7% Facilities Plan Estimate $ 13,190,000 Basin J Phase 1 Engineers Estimate - - - Phase 2 Engineer's Estimate Phase 3 Engineers Estimate - - Staff Estimate(75%) $ 7,800,000 0% Facilities Plan Estimate $ 10,404,000 Basin K Phase 1 Engineer's Estimate - - - - Phase 2 Engineer's Estimate Staff Estimate(75%) $ 6,600,000 - - 0% Facilities Plan Estimate $ 8,771,000 Unique Pr000rtles $ 1.000,000 $ - $ - $ 1,000,000 0% Vacuum Stations Basin F Mini Redland($413,000) 683,000 94,545 - 588,455 14% r`i Vac O Overholt($981,287) 1,512,000 - 51,820 1,460,180 3%. Vac I Overholt($951,287) 1,512,000 - 51,820 1,460,180 3% Vac J Estimate 1,512r000 - 51,820 1,480,160 3% Staff Estimate $ 5,189,000 $ 94245 $ 155,460 5 4,948,995 6% TOTAL CONSTRUCTION COST $ 48,0,726 4 32 70 $2,429,876 28 I61.316 14% (5) j° Ij EXHIBIT B KLWTD Project Consolidated Expenses (North & ��� South) $20M Grant Summary ri Key Largo Wastewater Project Consolidated Expenses (North & South) $20M Grant Summary September 1, 2005 through March 5, 2010 1 % of Total Expenses Expenses 512000-Employee payroll 512010-General Manager 251,448.85 1.95% __i 513010-Chief Financial Officer 13,750.00 0.11% 513013-Sr. Financial Officer 2,663.78 0.02% 513012-Engineer 211,571.91 1.64% 513011 -Project Manager 145,740.50 1.13% 513015-.Inspectors/Maintenance 264,517.22 2.05% - 513016-Operations manager 50,026.16 0.39% 513014-Plant Operators 442.01 0.00% 513019-Temporary/Part-time 281.529.53 2.19% Total 512000-Employee Payroll $1,221,689.96 9.49% I 511200-Payroll Taxes&Benefits 511211 -P/R Tax-FICA 70,754.66 0.55% n511212-P/RTax-Medicare 16.254.52 0.13% Total 511200-Payroll Taxes&Benefits $87,009.18 0.68% � 511000-General A&O Expenses 1511011 -Rents&Leases 5,000.00 0.04% 511018-Water 69,669.21 0.54% 511023-Repairs&maintenance 21,402.91 0.17% r1511012-Telephone .489.80 0.00% 511007-Legal Advertisements 13,618.76 0.11% 511008-Supplies 3,278.70 0.03% --- 511010-Travel 33,821.55 0.26% 511009-Dues&Subscriptions 395.00 0.00% -515002-Regulatory/Permit Fees 467,182.06 3.63% 511006-Miscellaneous Expenses 208,865.50 1.61% 511099-Reserve For Contingencies 501.99 0.00% 1 Total 511000-General A&O Expenses $822,225.48 6.39% 514000-Professional Services ' 514010-Computer Support 112.50 0.00% 514005-Engineering Services 904,480.27 7.02% _ 514001 -Legal-General Counsel 148,982.00 1.16% ,514002-Legal-Litigation Reserve 9,520.00 0.07% _-.514007-Project Planning Contingency 5.000.00 0.04% Total 514000-Professional Services $1,068,094.77 8.30% 515000-Other Expenses -514016-Engineering&Design 2,997,434.06 23.28% 514008-Construction Services 2,468,633.20 19.17% 514011 -Construction Materials 479,570.03 3.72% 1514019-Construction Equipment 80.00 0.00% Total 515000-Other Expenses $5,945,717.29 46.18% County Grant Paid $9,144,736.68 71.02% Advance 3.731.077.1Z 28.98% Total Expenses 12,875,813.80 100.00% I EXHIBIT C Invitation for Bids SECTION 00100 INVITATION FOR BIDS Key Largo Wastewater Treatment District(KLWTD) hereby requests Sealed Bids up to 2:00 PM on Wednesday, May 27,2009 for: Vacuum Collection System-Service Area'E'and'F'-Phase E-i, E-Il and F-I This project consists of the construction of approximately 15,000 lineal feet of flinch, 5,210 lineal feet of 6-Inch, 1,780 lineal feet of 8-inch, and 3,060 lineal feet of 12-Inch vacuum mains which includes directional drilling under U.S. 1 in three locations; 120 collection pits and laterals, and gravity laterals to serve approximately 350 properties within Service Areas 'E' and F. In addition, provided the successful bidder Is performing satisfactorily, Owner may offer the successful bidder similar work on other collection systems, basins and/or phases at the unit prices bid for this work. Contractor will be expected to accept any and all additional work at the unit prices bid for this work. Bids shall be delivered to KLWTD offices at 98880 Overseas Highway, Key Largo, FL.33037 (Attention: Carol Walker) by the Bid date and time indicated above. Bids will be publicly opened and read aloud in the KLWTD offices at the above date and time by the General Manager or his designee. The clock in the KLWTD offices shall reflect the official time.All proper bid packages received will be opened In no specific order. Bids delivered after the date and time indicated above will not be opened or otherwise considered. Please note that facsimile bids,telegraph bids, email bids, or non sealed bids(i.e. bids not enclosed in an opaque sealed envelope) will not be opened or considered. Any uncertainty regarding the time a Bid is received will be resolved against the Bidder. There will be a MANDATORY Pre-Bid meeting held at the KLWTD offices at 2 P.M. on Monday, May 18, 2009. The bidders are.requested to perform a site visit to familiarize themselves with the conditions along the project alignment before the pre-bid meeting. Solicitation packages including specifications, terms, conditions, general Instructions and bid submission documents will be available by Monday, May 4, 2009 and may be obtained at Demandstar.com.Addenda will be distributed by Demandstar. The SOLICITATION PACKAGE, consisting of the Contract Documents,may be examined at the following locations: 1) Eckier Engineering, Inc.,4700 Riverside Drive, Suite 110,Coral Springs, FL 33067 2) Demandstar.com 3) KLWTD,98880 Overseas Highway, Key Largo, Florida, 33037 Each Bid shall be accompanied by a Bid Bond for 5% of the maximum Bid amount. Each BID shall be submitted In duplicate originals in one sealed envelope with the name and address of the Bidder and the bid date and time on the outside along with the following information: "BID FOR VACUUM COLLECTION SYSTEM - SERVICE AREA 'E' AND 'F',PHASE E-I, E-li, AND F-1. 00100-1 rl EXHIBIT D • Agreement Form 0 • I� . • • II 1I -1 SECTION 00620 AGREEMENT FORM PART 1 GENERAL 1.01 THIS AGREEMENT, made this day of by and between Key Largo Wastewater Treatment District, hereinafter called the Owner, and 1) , doing business as a 2) , and hereinafter called the Contractor. 1) Name of Contractor 2) Corponition,Parfiershtp,Sole Proprietor 1.02 The Owner and Contractor agree as follows: A. Contract Documents The Contract Documents include the Agreement,Addenda (which pertain to the Contract Documents), Instructions to Bidders, Contractor's Bid, Notice to Proceed, the Bonds, the General Conditions, the Supplementary Conditions, the Specifications listed in the Index to the Project Manual, any technical specifications as incorporated by the Project Manual; the Drawings as listed in the Project Manual, all Written Amendments, Change Orders, Work Change Directives; Field Orders, and Engineer's written interpretations and clarifications issued on or after the Effective Date of this Agreement. These.form the Contract and all are as fully a part of the Contract as if attached to this Agreement or repeated herein. B. Scope of Work The Contractor shall perform all work required by the Contract Documents for the construction of the Vacuum Collection Svst m- Service Area 'E' and 'F'- Phase E-I, E-II. F-1. In addition, provided Contractor is performing satisfactorily. Owner may offer Contractor the opportunity to perform similar work on other collection system basins and/or phases at the unit prices bid for this work, and Contractor agrees to accent all work that is offered. C. Contract Time The Contractor shall begin work within 60 days after the issuance of a written Notice to Proceed and shall achieve substantial completion of the work within 240 calendar days from the date of the Notice to Proceed. The work shall be finally complete, ready for Final Payment in accordance with the General Conditions, within 30 calendar days from the actual date of substantial completion. See also Supplementary Condition, Section 00800, SC-12.02.C-E. 00620.1 NAME OF PROJECT: Vacuum Collection System—Service Area`E'and'F'—Phase E 1, E-II,F-I P EXHIBIT E Consultants' Competitive Negotiation Act Section . 287.055, Florida Statutes -Statutes&Constitution :View Statutes :->2009->Ch0287->Section 055 : Online Sunshine Page 1 of 6 II Select Year: 12009 The 2009 Florida Statutes Title XIX Chapter 287 View Entire Chapter PUBLIC BUSINESS PROCUREMENT OF PERSONAL PROPERTY AND SERVICES 287.055 Acquisition of professional architectural, engineering, landscape architectural, or surveying and mapping services; definitions; procedures; contingent fees prohibited; penalties.-- (1) SHORT TITLE.--This section shall be known as the"Consultants'Competitive Negotiation Act." (2) DEFINITIONS. -For purposes of this section: (a) "Professional services"means those services within the scope of the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping, as defined by the laws of the state, or those performed by any architect, professional engineer, landscape architect, or registered surveyor and mapper in connection with his or her professional employment or practice. (b) "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 or ss. 163.3220-163.3243. - (c) "Firm"means any individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice architecture, engineering, or surveying and mapping in the state. (d) "Compensation" means the amount paid by the agency for professional services regardless of whether stated as compensation or stated as hourly rates, overhead rates, or other figures or formulas from which compensation can be calculated. (e) "Agency official"means any elected or appointed officeholder, employee, consultant, person in the category of other personal service or any other person receiving compensation from the state, a state agency, municipality, or political subdivision, a school district or a school board. (f) "Project"means that fixed capital outlay study or planning activity described in the public notice of the state or a state agency under paragraph (3)(a). A project may include: 1. A grouping of minor construction, rehabilitation, or renovation activities. 2. A grouping of substantially similar construction, rehabilitation, or renovation activities. (g) A"continuing contract"is a contract for professional services entered into in accordance with all the procedures of this act between an agency and a firm whereby the firm provides professional services to the agency for projects in which it i the estimated construction cost of each individual project under the contract does not exceed $2 million, for study _ activity if the fee for professional services for each individual study under the contract does not exceed $200,000, or for ittp://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search String=&URL=Ch0287/5... 5/5/2010 Statutes&Constitution :View Statutes :->2009->Ch0287->Section 055 : Online Sunshine Page 2 of 6 work of a specified nature as outlined in the contract required by the agency, with the contract being for a fixed term or with no time limitation except that the contract must provide a termination clause. Firms providing professional services under continuing contracts shall not be required to bid against one another. (h) A"design-build firm"means a partnership, cor poration, or other legal entity that: - 1. Is certified under s. 489.119 to engage in contracting through a certified or registered general contractor or a certified or registered building contractor as the qualifying agent; or 2. Is certified under s. 471.023 to practice or to offer to practice engineering; certified under s. 481.219 to practice or to - offer to practice architecture; or certified under s. 481.319 to practice or to offer to practice landscape architecture. (i) A"design-build contract" means a single contract with a design-build firm for the design and construction of a public construction project. • (j) A"design criteria package"means concise, performance-oriented drawings or specifications of the public construction project. The purpose of the design criteria package is to furnish sufficient information to permit design-build firms to prepare a bid or a response to an agency's request for proposal, or to permit an agency to enter into a negotiated design- build contract.The design criteria package must specify performance-based criteria for the public construction project, including the legal description of the site, survey information concerning the site, interior space requirements, material quality standards, schematic layouts and conceptual design criteria of the project, cost or budget estimates, design and _i construction schedules, site development requirements, provisions for utilities, stormwater retention and disposal, and parking requirements applicable to the project. (k) A"design criteria professional"means a firm who holds a current certificate of registration under chapter 481 to practice architecture or landscape architecture or a firm who holds a current certificate as a registered engineer under chapter 471 to practice engineering and who is employed by or under contract to the agency for the providing of - professional architect services, landscape architect services, or engineering services in connection with the preparation of the design criteria package. — (I) "Negotiate"or any form of that word means to conduct legitimate, arms length discussions and conferences to reach an agreement on a term or price. For purposes of this section, the term does not include presentation of flat-fee schedules. with no alternatives or discussion. - (3) PUBLIC ANNOUNCEMENT AND QUALIFICATION PROCEDURES.-- • • (a)1. Each agency shall publicly announce, in a uniform and consistent manner, each occasion when professional services _l must be purchased for a project the basic construction cost of which is estimated by the agency to exceed the threshold i amount provided in s. 287.017 for CATEGORY FIVE or for a planning or study activity when the fee for professional services exceeds the threshold amount provided in s. 287.017 for CATEGORY TWO, except in cases of valid public emergencies i certified by the agency head. The public notice must include a general description of the project and must indicate how - interested consultants may apply for consideration. 2. Each agency shall provide a good faith estimate in determining whether the proposed activity meets the threshold — amounts referred to in this paragraph. j (b) Each agency shall encourage firms engaged in the lawful practice of their professions that desire to provide • ittp://www.leg.state.fl.us/Statutes/index.cfm?App mode=Display_Statute&Search String=&URL h0287/S... 5/5/2010 'Statutes&Constitution :View Statutes :->2009->Ch0287->Section 055 : Online Sunshine Page 3 of 6 - professional services to the agency to submit annually statements of qualifications and performance data. (c) Any firm or individual desiring to provide professional services to the agency must first be certified by the agency as qualified pursuant to law and the regulations of the agency. The agency must find that the firm or individual to be employed is fully qualified to render the required service. Among the factors to be considered in making this finding are the capabilities, adequacy of personnel, past record, and experience of the firm or individual. (d) Each agency shall evaluate professional services, including capabilities, adequacy of personnel, past record, experience, whether the firm is a certified minority business enterprise as defined by the Florida Small and Minority Business Assistance Act, and other factors determined by the agency to be applicable to its particular.requirements. When securing professional services, an agency must endeavor to meet the minority business enterprise procurement goals _ under s. 287.09451. (e) The public must not be excluded from the proceedings under this section. (4) COMPETITIVE SELECTION.-- (a) For each proposed project, the agency shall evaluate current statements of qualifications and performance data on j file with the agency, together with those that may be submitted by other firms regarding the proposed project, and shall conduct discussions with, and may require public presentations by, no fewer than three firms regarding their i qualifications, approach to the project, and ability to furnish the required services. (b) The agency shall select in order of preference no fewer than three firms deemed to be the most highly qualified to - perform the required services. In determining whether a firm is qualified, the agency shall consider such factors as the ability of professional personnel; whether a firm is a certified minority business enterprise; past performance; willingness to meet time and budget requirements; location; recent, current,and projected workloads of the firms; and the volume of work previously awarded to each firm by the agency, with the object of effecting an equitable distribution of contracts. among qualified firms, provided such distribution does not violate the principle of selection of the most highly qualified - firms. The agency may request, accept, and consider proposals for the compensation to be paid under the contract only during.competitive negotiations under subsection (5). • - (c) This subsection does not apply to a professional service contract for a project the basic construction cost of which is estimated by the agency to be not in excess of the threshold amount provided in s. 287.017 for CATEGORY FIVE or for a planning or study activity when the fee for professional services is not in excess of the threshold amount provided in s. - 287.017 for CATEGORY TWO. However, if, in using another procurement process, the majority of the compensation proposed by firms is in excess of the appropriate threshold amount, the agency shall reject all proposals and reinitiate the procurement pursuant to this subsection. (d) Nothing In this act shall be construed to prohibit a continuing contract between a firm and an agency. (5) COMPETITIVE NEGOTIATION.-- (a): The agency shall negotiate a contract with the most qualified firm for professional services at compensation which the agency determines is fair, competitive, and reasonable. In making such determination, the agency shall conduct a detailed analysis of the cost of the professional services required in addition to considering their scope and complexity. For any, lump-sum or cost-plus-a-fixed-fee professional service contract over the threshold amount provided in s. 287.017 for CATEGORY FOUR, the agency shall require the firm receiving the award to execute a truth-in-negotiation certificate ttp://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0287/S... 5/5/2010 iStatutes&Constitution :View Statutes :->2009->Ch0287->Section 055 : Online Sunshine Page 4 of 6 stating that wage rates and other factual unit costs supporting the compensation are accurate, complete, and current at the time of contracting. Any professional service contract under which such a certificate is required must contain a provision that the original contract price and any additions thereto will be adjusted to exclude any significant sums by - which the agency determines the contract price was increased due to inaccurate, incomplete, or noncurrent wage rates and other factual unit costs. All such contract adjustments must be made within 1 year following the end of the contract. - (b) Should the agency be unable to negotiate a satisfactory contract with the firm considered to be the most qualified at a price the agency determines to be fair, competitive, and reasonable, negotiations with that firm must be formally terminated. The agency shall then undertake negotiations with the second most qualified firm. Failing accord with the - second most qualified firm, the agency must terminate negotiations. The agency shall then undertake negotiations with the third most qualified firm. (c) Should the agency be unable to negotiate a satisfactory contract with any of the selected firms, the agency shall select additional firms in the order of their competence and qualification and continue negotiations in accordance with this subsection until an agreement is reached. - (6) PROHIBITION AGAINST CONTINGENT FEES.-- (a) Each contract entered into by the agency for professional services must contain a prohibition against contingent fees as follows: The architect(or registered surveyor and mapper or professional engineer, as applicable)warrants that he or - she has not employed or retained any company or person, other than a bona fide employee working solely for the architect (or registered surveyor and mapper, or professional engineer, as applicable) to solicit or secure this agreement and that he or she has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona — fide employee working solely for the architect (or registered surveyor and mapper or professional engineer, as applicable) any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this agreement." For the breach or violation of this provision, the agency shall have the right to terminate the agreement without liability and, at its discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. (b) Any individual, corporation, partnership, firm, or company, other than a bona fide employee working solely for an - = architect, professional engineer, or registered land surveyor and mapper, who offers, agrees, or contracts to solicit or - secure agency contracts for professional services for any other individual, company, corporation, partnership, or firm and to be paid, or is paid, any fee, commission, percentage, gift, or other consideration contingent upon, or resulting from, - the award or the making of a contract for professional services shall, upon conviction in a competent court of this state, -n be found guilty of a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083. (c) Any architect,professional engineer, or registered surveyor and mapper, or any group, association, company, in corporation, firm, or partnership thereof, who offers to pay, or pays, any fee, commission, percentage, gift, or other I_ consideration contingent upon, or resulting from, the award or making of any agency contract for professional services shall, upon conviction in a state court of competent authority, be found guilty of a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083. (d) Any agency official who offers to solicit or secure, or solicits or secures, a contract for professional services and to be , paid, or is paid, any fee, commission, percentage, gift, or other consideration contingent upon the award or making of such a contract for professional services between the agency and any individual person, company, firm, partnership, or corporation shall, upon conviction by a court of competent authority, be found guilty of a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083. Ittp://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search String=&URL=Ch0287/S... 5/5/2010 �r-iStatutes&Constitution:View Statutes :->2009->Ch0287->Section 055 : Online Sunshine Page 5 of 6 -1 (7) AUTHORITY OF DEPARTMENT OF MANAGEMENT SERVICES.--Notwithstanding any other provision of this section, the Department of Management Services shall be the agency of state government which is solely and exclusively authorized and empowered to administer and perform the functions described in subsections (3), (4), and (5) respecting all projects for which the funds necessary to complete same are appropriated to the Department of Management Services, irrespective } of whether such projects are intended for the use and benefit of the Department of Management Services or any other agency of government. However, nothing herein shall be construed to be in derogation of any authority conferred on the Department of Management Services by other express provisions of law. Additionally, any agency of government may, with the approval of the Department of Management Services, delegate to the Department of Management Services authority to administer and perform the functions described in subsections (3), (4), and (5). Under the terms of the delegation, the agency may reserve its right to accept or reject a proposed contract. (8) STATE ASSISTANCE TO LOCAL AGENCIES.--On any professional service contract for which the fee is over$25,000, the Department of Transportation or the Department of Management Services shall provide, upon request by.a municipality, political subdivision, school board, or school district, and upon reimbursement of the costs involved, assistance in selecting consultants and in negotiating consultant contracts. (9) APPLICABILITY TO DESIGN-BUILD CONTRACTS.-- - i (a) Except as provided in this subsection, this section is not applicable to the procurement of design-build contracts by any agency, and the agency must award design-build contracts in accordance with the procurement laws, rules, and - ordinances applicable to the agency. (b) The design criteria package must be prepared and seated by a design criteria professional employed by or retained by ' the agency. If the agency elects to enter into a professional services contract for the preparation of the design criteria package, then the design criteria professional must be selected and contracted with under the requirements of subsections (4)and (5). A design criteria professional who has been selected to prepare the design criteria package is not eligible to render services under a design-build contract executed pursuant to the design criteria package. - (c) Except as otherwise provided in s. 337.11(7), the Department of Management Services shall adopt rules for the award of design-build contracts to be followed by state agencies. Each other agency must adopt rules or ordinances for the award of design-build contracts. Municipalities, political subdivisions, school districts, and school boards shall award design-build contracts by the use of a competitive proposal selection process as described in this subsection, or by the use of a qualifications-based selection process pursuant to subsections (3), (4), and (5) for entering into a contract whereby the selected firm will, subsequent to competitive negotiations, establish a guaranteed maximum price and guaranteed completion date. If the procuring agency elects the option of qualifications-based selection, during the selection of the design-build firm the procuring agency shall employ or retain a licensed design professional appropriate to the project to serve as the agency's representative. Procedures for the use of a competitive proposal selection process must include as a minimum the following: 1. The preparation of a design criteria package for the design and construction of the public construction project. 2. The qualification and selection of no fewer than three design-build firms as the most qualified, based on the qualifications, availability, and past work of the firms, including the partners or members thereof. 3. The criteria, procedures, and standards for the evaluation of design-build contract proposals or bids, based on price, - technical, and design aspects of the public construction project, weighted for the project. -Lttp://www.leg.state.fl.us/Statutes/index.cfm?Appmode=Display_Statute&Search_String=&URL=Ch0287/5... 5/5/2010 `i Statutes&Constitution:View Statutes :->2009->Ch0287->Section 055 : Online Sunshine Page 6 of 6 4..The solicitation of competitive proposals, pursuant to a design criteria package, from those qualified design-build firms and the evaluation of the responses or bids submitted by those firms based on the evaluation criteria and procedures established prior to the solicitation of competitive proposals. 5. For consultation with the employed or retained design criteria professional concerning the evaluation of the responses or bids submitted by the design-build firms, the supervision or approval by the agency of the detailed working drawings of the project; and for evaluation of the compliance of the project construction with the design criteria package by the design criteria professional. 6. In the case of public emergencies, for the agency head to declare an emergency and authorize negotiations with the I best qualified design-build firm available at that time. (10) REUSE OF EXISTING PLANS.--Notwithstanding any other provision of this section, there shall be no public notice requirement or utilization of the selection process as provided In this section for projects in which the agency is able to reuse existing plans from a prior project of the agency, or, in the case of a board as defined in s. 1013.01, a prior project of that or any other board. Except for plans of aboard as defined in s. 1013.01, public notice for any plans that are intended to be reused at some future time must contain a statement that provides that the plans are subject to reuse in accordance with the provisions of this subsection. (11) CONSTRUCTION OF LAW.--Nothing in the amendment of this section by chapter 75-281, Laws of Florida, is intended to supersede the provisions of ss. 1013.45 and 1013.46. History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, ch. 73-19; ss. 1, 2, 3, ch. 75-281; s. 1, ch. 77-174; s. 1, ch. 77-199; s. 10, ch. 84-321; ss. 23, 32, ch. 85-104; s. 57, ch. 85-349; s. 6, ch. 86-204; s. 1, ch. 88-108; s. 1, ch. 89-158; s. 16, ch. 90-268; s. 15, ch. 91- 137; s. 7, ch. 91-162; s. 250, ch. 92-279; s. 55, ch. 92-326; s. 1, ch. 93-95; s. 114, ch. 94-119; s. 10, ch. 94-322; s. 868, ch. 95-148; s. 2, ch. 95-410; s. 45, ch. 96-399; s. 38, ch. 97-100; s. 1, ch. 97-296; s. 80, ch. 98-279; s. 55, ch. 2001-61; s. 63, ch. 2002-20; s. 944, ch. 2002-387; s. 1, ch. 2005-224; s. 19, ch. 2007-157; s. 3, ch. 2007-159; s. 3, ch. 2009-227. Copyright C 1995-2010 The Florida Legislature •Privacy Statement•Contact Us • I (^ittp://www.leg.statell.us/Statutes/index.cfm?App_mode=Display_Statute&Search String=&URL=Ch0287/S... 5/5/2010 i EXHIBIT F KLWTD PROCUREMENT Policy # 2-210.5.4 Competitive Negotiation • • • it it (F) recent, current, and projected workloads of the firms; and (G) the volume of work previously awarded to each firm by the District, with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of selection of the most highly qualified firms. The District may request, accept, and consider proposals for the j compensation to be paid under the contract only during competitive negotiations under 2-201.05.4. (3) This section does not apply to a professional service contract for a project the basic construction cost of which is estimated by the District to be not in excess of $250,000 or for a planning or study activity when the fee for professional services is not in excess of $25,000. However, if, in using another procurement process, the majority of the compensation proposed by firms is in excess of the appropriate threshold amount, the District shall reject all proposals and reinitiate the procurement pursuant to this subsection. (4) (d) Nothing in this section shall be construed to prohibit a continuing contract between a firm and the District 2-210.05.4 Competitive negotiation. (1) The District will negotiate a contract with the most qualified firm for design professional services at compensation which the District determines is fair, competitive, and reasonable. in making such determination, the District will conduct a detailed analysis of the cost of the professional services required in addition to.considering their scope and complexity. For any lump-sum or cost-plus-a-fixed-fee professional service __ contract over$150,000, the District will require the firm receiving the award to execute a truth-in-negotiation certificate stating that wage rates and other factual unit costs supporting the compensation are accurate, complete, and current at the time of contracting. Any design professional service contract under which such a certificate is required will contain a provision that the original contract price and any additions thereto will be adjusted to exclude any significant sums by which the District determines the contract price was increased due to inaccurate, incomplete, or non-current wage rates and other factual unit costs. All such contract adjustments will be made within 1 year following the end of the contract. (2) Should the District be unable to a negotiate satisfactorycontract with the 9 firm considered to be the most qualified at a price the District determines to be fair, competitive, and reasonable, negotiations with that firm will be formally terminated. The District will then undertake negotiations with the second most qualified firm. Failing accord with the second most qualified firm, the District will terminate negotiations. The District will then undertake negotiations with the third most qualified.firm. (3) Should the District be unable to negotiate a satisfactory contract with any of the selected firms, the District shall select additional firms in the order of their competence and qualification and continue negotiations in accordance with this subsection until an agreement is reached. 38 it EXHIBIT G Attorney General Opinion 93-56 i ! Advisory Legal Opinion-Municipal procedure/contract for professional services Page 11 of 3 Florida Attorney General Advisory Legal Opinion Number: AGO 93-56 Date: August 23, 1993 Subject:'Municipal procedure/contract for professional services Mr.. Fred- S. Diseeelkoen City Attorney City of Ormond Beach Post Office Box 277 Ormond Beach, Florida 32175-0277 jI RE: CONSULTANTS' COMPETITIVE NEGOTIATION ACT-MUNICIPALITIES--CONTINUING CONTRACTS-- municipal procedure for negotiating contract for professional services. s. 287.055, F.S. (1992 Supp.) Dear Mr. 'Disselkoen: You have asked for my opinion on the following question: • `T When a local government has entered into a number of continuing contracts for professional engineering services in accordance with the Consultants' Competitive Negotiation Act may the local government seek fee quotations from those firms under contract, in the course of selecting a firm to perform a given project? In sum: ' The Consultants'Competitive Negotiation Act does not provide criteria for negotiating a contract for professional services under a continuing contract and a municipality may develop its own procedures for evaluating such a contract: • According to your letter, the City of Ormond Beach currently has four "continuing contracts, " as defined in s. 2B7.055.(2) (g)., P.S. (1992 Supp.) , for the provision of professional engineering services., Each contract has a general fee .structure describing the hourly fee ,per position, but each _, also provides that given projects will be negotiated and defined in subsequent addenda..[1) The Consultants' Competitive Negotiation Act, s. 287.055, F..S. (1992 Supp.) , Sets forth requirements for the procurement and contracting of ` professional architectural, engineering, landscape architectural, or. land surveying-services [2] by governmental agencies. (3.] The statute also ? provides. that " En]othing in this act shall be construed to prohibit a ( continuing contract betweena firm and an agency." (43 A "continuing contract" is defined in s. 287.058(2) (g) , F.S. (1992 Supp.) , cis: " [A] contract for professional services entered into in accordance with http://www.myfloridalegal.com/ago.nsf/printview/FD690A778A432CBD8525623F005EF40A ' 5/7/2010 Advisory Legal Opinion - Municipal procedure/contract for professional services Page 2 of 3 all the procedures of this act between an agency and a firm whereby the firm provides professional services to the agency for projects in which construction costs do not exceed 500, 000, for study activity when the fee for such professional service does not exceed 25, 000, or for work of a specified nature as outlined in the contract required by the agency, with no time limitation except that the contract shall provide a termination clause. " However, nothing in a . 287 . 055, F.S. (1992 Supp. ) , purports to regulate the terms of a continuing contract. Nor does the statute address instances where an agency seeks to impose additional criteria on continuing contractors to insure impartiality when a choice must be made among them. You have specifically directed my attention to subsection (4) of a . 287 . 055, F. S. (1992 Supp. ) , which provides that • [t] he agency may request, accept, and consider proposals for the compensation to be paid under the contract only during competitive negotiations . . . . N [5] You question whether this provision would preclude the City of Ormond Beach from considering compensation for projects falling within the scope of its continuing contracts. However, the plain language of the statute indicates that these requirements are to be utilized in the competitive negotiation process. [6] In fact, subsection (4) (d) , states that N [n] othing in this act shall be construed to prohibit a continuing contract between a firm and an agency. " Therefore, if a municipality determines that it is appropriate to develop criteria for determining which firm under continuing contract with the city will be selected to perform a project, it may do so. [7] It may be advisable for the city to adopt an ordinance or develop an administrative rule or procedure to insure that these criteria are applied uniformly to all continuing contracts into which the city enters. Sincerely, Robert A. Butterworth Attorney General RAB/tgk [1] While this office has not been asked to comment on this arrangement I would note that the continuing contract provision of a. 287 .055, F.S. (1992 Supp. ) , represents an exception to the general competitive bidding provisions of the Act and should be read narrowly and utilized sparingly in order to avoid an appearance of circumventing the requirements of the statute. Cf. , City of Lynn Haven v. Bay County Council of Registered Architects, Inc. , 528 So.2d 1244, 1246 (1 D.C.A. Fla. , 1988) (in which the court determined that the City' s procedures contravened the legislative intent and undermined the effectiveness of the CCNA. Specifically, the City' s bidding procedure would not effectuate an equitable distribution of contracts among the most qualified firms pursuant to Section 287 .055 (4) , http://www.myfloridalegal.com/ago.nsf/printview/FD690A778A432CBD8525623F005EF40A 5/7/2010 Advisory Legal Opinion - Municipal procedure/contract for professional services Page 3 of 3 Florida Statutes. ) (2] See, s. 287 . 055 (2) (a) , P.S. (1992 Supp. ) , defining " (p] rofessional services. " [3] See, s. 287 .055 (2) (b) , F.S. (1992 Supp. ) , which defines " [a] gency" as "the state or a state agency, municipality, or political subdivision, or a school district or school board. " [4] Section 287 . 055 (4) (d) , P.S. (1992 Supp. ) . :5) Section 287 . 055 (4) (b) , F. S. (1992 Supp. ) . (6] See, Heading to s. 287 .055 (4) , F.S. (1992 Supp. ) , which indicates that this subsection relates to competitive selection. [7) Cf. , Marriott Corporation v. Metropolitan Dade County, 383 So.2d 662 (3 D.C.A. Fla. , 1980) , which recognizes that even under competitive bidding requirements contracts must be awarded as a function of the reasonable exercise of power by municipal governmental authorities as a matter of public policy and fidelity to the public trust; William A. Berbusse, Jr. , Incorporated v. North Broward Hospital District, 117 So.2d 550 (2 D.C.A. Fla. , 1960) (where statute requires that public body award contracts to low bidder, proper municipal authorities have wide discretion in determination of lowest responsible bidder) . http:/rwww.myfloridalegal.com/ago.nsf/printview/FD690A778A432CBD8525623F005EF40A 5/7/2010 EXHIBIT H Attorney General Opinion 75-131 11 1I Advisory Legal Opinion -Consultants'competitive negotiation act Page 1 01'2 Florida Attorney General Advisory Legal Opinion Number: AGO 75-131 Date: May 5, 1975 Subject: Consultants' competitive negotiation act 075-131 - - May 5, 1975 CONSULTANTS ' COMPETITIVE NEGOTIATION ACT APPLICABILITY TO EMPLOYMENT OF CITY ENGINEER ro: Michael Zealy, Lauderdale Lakes City Attorney, Ft. Lauderdale Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General QUESTION: May a city utilize its city engineer, employed under a yearly contract with stated fees for specified services, for all engineering services, including those in excess of $5, 000 , without complying with the Consultants ' Competitive Negotiation Act, s . 287 . 055, F. S. ? SUMMARY: A city may employ a city engineer under a yearly contract to provide general advice and assistance without complying with the Consultants ' Competitive Negotiation Act, s . 287 . 055, F. S . However, a particular engineering project must be publicly announced, notices sent to interested engineering firms, and, if the compensation for the engineering services is more than $5, 000, at least three engineering firms must be considered before finally negotiating an engineering contract for the project, as required by the act. The Consultants ' Competitive Negotiation Act (the "CCNA" hereafter) was adopted in 1973 for the purpose of promoting competition among firms supplying professional architectural, engineering, and land surveying services to public agencies. Attorney General Opinion 074-191. Except in an emergency, the agency is required to make a public announcement on "each occasion" when professional services are required to be "purchased" and, in addition, to mail the announcement to each "certified" firm which has requested notification of the need for the services . The announcement must include a general description of the "project" and indicate how interested consultants may apply for consideration. Section 287 . 055 (3) , F. S. If the compensation for the professional services in question will exceed $5, 000, the public agency is required to consider at least three firms in the light of various "factors" listed in the statute "with the object of effecting an equitable distribution of contracts among qualified firms, " s. http://www.myfloridalegal.com/ago.nsf/printview/483622F309974184852566B70055B l DA 5/7/2010 Advisory Legal Opinion - Consultants' competitive negotiation act Page2o12 287 . 055 (4) , id. ; and, under s. 287 . 055 (5) , the agency is required to "negotiate a contract with the most qualified firm for professional services at compensation which the agency determines is fair, competitive, and reasonable. . . . " I see no reason why a city could not employ a so-called city engineer under a yearly contract for general consultation and advice to supplement the city' s own staff, including attendance at meetings of the city council and other assistance of a general nature. And it seems clear that the requirements of the CCNA would not have to be complied with each time the city called upon the city engineer for general advice or assistance pursuant to the contract of employment. (The contract of employment, itself, would not appear to be a "project" that should be negotiated under the CCNA. ) However, such an employment contract should be limited to general advice and assistance; and an engineering contract for a particular project should be negotiated in compliance with the CCNA requirements by making a public announcement, sending notice to interested certified firms, and, if the compensation will exceed $5, 000, selecting at least three engineering firms for consideration before negotiating an engineering contract with the most qualified firm at a fair, competitive, and reasonable compensation. Any other construction of the statute would be contrary to the purpose and intent of the CCNA to promote competition among engineering firms for the city' s engineering business and effect an "equitable distribution" of engineering contracts among qualified firms. http://www.myfloridalegal.com/ago.nsflprintview/483622F309974184852566B70055B 1 DA 5/7/2010 EXHIBIT I Florida Statute Chapter 189.441 Contracts Statutes&Constitution :View Statutes :->2009->Ch0189->Section 441 : Online Sunshine Page 1 of 1 Select Year: 12009 r The 2009 Florida Statutes Title XIII Chapter 189 View Entire Chapter PLANNING AND DEVELOPMENT SPECIAL DISTRICTS: GENERAL PROVISIONS 189.441 Contracts.--Contracts for the construction of projects and for any other purpose of the authority may be awarded by the authority in a manner that will best promote free and open competition, including advertisement for competitive bids; however, if the authority determines that the purposes of this act will be more effectively served thereby, the authority may award or cause to be awarded contracts for the construction of any project, including design- ' build contracts, or any part.thereof, or for any other purpose of the authority upon a negotiated basis as determined by the authority. Each contractor doing business with the authority and required to be licensed by the state or local general- purpose governments must maintain the license during the term of the contract with the authority. The authority may prescribe bid security requirements and other procedures in connection with the award of contracts which protect the public interest. The authority may, and in the case of a new professional sports franchise must, by written contract engage the services of the operator, lessee, sublessee, or purchaser, or prospective operator, lessee, sublessee, or purchaser, of any project in the construction of the project and may, and in the case of a professional sports franchise must, provide in the contract that the lessee, sublessee, purchaser, or prospective lessee, sublessee, or purchaser, may act as an agent of, or an independent contractor for, the authority for the performance of the functions described therein, subject to the conditions and requirements prescribed in the contract, including functions such as the acquisition of the site and other real property for the project; the preparation of plans, specifications, financing, and contract documents; the award of construction and other contracts upon a competitive or negotiated basis; the construction of the project, or any part thereof, directly by the lessee, purchaser, or prospective Lessee or purchaser; the inspection and supervision of construction; the employment of engineers, architects, builders, and other contractors; and -- the provision of money to pay the cost thereof pending reimbursement by the authority. Any such contract may, and in the case of a new professional sports franchise must, allow the authority to make advances to or reimburse the lessee, sublessee, or purchaser, or prospective lessee, sublessee, or purchaser for its costs incurred in the performance of those -- functions, and must set forth the supporting documents required to be submitted to the authority and the reviews, - examinations, and audits that are required in connection therewith to assure compliance with the contract. History.--s. 12, ch. 2000-348; s. 59, ch. 2002-20. Copyright©1995-2010 The Florida Legislature •Privacy Statement•Contact Us ttp://www.leg.state.fl.us/Statutes/index.cfm?Appmode=Display_Statute&Search String=&URL=Ch0189/... 5/10/2010 EXHIBIT J Florida Statute Chapter 189.432 Definitions; Community Improvement Authority Act Statutes&Constitution :View Statutes :->2009->Ch0189->Section 432 : Online Sunshine Page 1 of 1 Select Year: 12009 A .•�,.;� The 2009 Florida Statutes Title XIII Chapter 189 View Entire Chapter PLANNING AND DEVELOPMENT SPECIAL DISTRICTS: GENERAL PROVISIONS 189.432 Definitions; Community Improvement Authority Act.--As used in this act, the term: , J (1) "Authority" means an authority created under this act. (2) "Board"or"board of supervisors"means the governing body of an authority. (3) "Bond" means any general obligation bond, revenue bond, refunding bond, note, or other debt obligation authorized under this act. (4) "Department" means the Department of Revenue. _ (5) "Eligible county"means any county within the state which simultaneously satisfies the following criteria: (a) At least two professional sports facilities exist in the county, and (b) The county has a population of not less than 1.5 million according to the,most recent annual publication of County Population Estimates of the U.S. Bureau of the Census. Once a governing body has been appointed for an authority in an eligible county, that county is considered an eligible county for all purposes of this act, notwithstanding subsequent —I reductions in population. (6) "Professional sports facility"means a ballpark, stadium,arena, coliseum, or similar facility intended for use by a professional sports franchise that exists within the National League or the American League of Major League Baseball, the National Basketball Association, the National Football League, or the National Hockey League. -- (7) "Project"means facilities, attractions, and other improvements authorized by this act, including professional sports facilities, related amenities and infrastructure, and systems, facilities, and services determined by an authority to be beneficial to the development, ownership, and operation of any of the foregoing, including the acquisition of land and any interest therein. (8) "Refunding bonds"means bonds issued to retire or refinance outstanding bonds of an authority and the interest and redemption premium thereon. (9) "Revenue bonds"means obligations of an authority or other governmental body which are payable from revenues or other funds derived from sources other than ad valorem taxes on real or tangible personal property. History.--s. 3, ch. 2000-348. Copyright®t995-2010 The Florida Legislature •Privacy Statement•Contact Us http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search String=&URL=Ch0189/... 5/10/2010 EXHIBIT K Attorney General Opinion 2010-20 �-1 � I ADVISORY BULLETIN Florida Association of Court Clerks Co/ mptroilers REF:AGO 2010.20-CCNA, Price and Qualitative Considerations DATE:June 10,2010. NO: 10-038 FILE NO. F02-008.061010-01 TELEPHONE: (850)921-0808 CONTACT: S. Hudson .PAGE 1 OF 9 Number: AGO 2010-20 Date: June 7, 2010 Subject: CCNA,price and qualitative considerations The Honorable Dwight E. Brock Collier County Clerk of Courts Post Office Box 413044 Naples, Florida 34101-3044 j ' RE: CLERK OF THE CIRCUIT COURT—CO NSULTANTS'COMPETITIVE NEGOTIATION ACT—COUNTIES—QUANTUM MERUIT—validity of county purchasing j procedure; CCNA requirements. s. 287.055, Fla. Stat. Dear Mr. Brock: i You have asked for my opinion on substantially the following questions: I. Does a procedure for the.acquisition of professional services which is based upon an • evaluation of a combination of price and qualitative considerations comply with the provisions of section 287.055, Florida Statutes? 2. Does the concept of quantum meruit authorize the Clerk of the Circuit Court to legally pay for { professional services provided under contracts entered into b Collier Count y ty which may not conform to the requirements of section 287.055, Florida Statutes? In sum: 1. Section 287.055, Florida Statutes, the "Consultants'Competitive Negotiation Act," describes a process of qualification based selection whereby professional services firms are selected in order of preference based on their ability to perform the required services. Following competitive selection, a contract is negotiated for professional services at a fair, competitive, and reasonable price. Nothing in section 287.055, Florida Statutes, authorizes an agency to include compensation rates as a factor in the initial consideration and selection of a firm to provide professional services. i I i ADVISORY BULLETIN 10.038 PAGE 2 2. The Collier County Commission is authorized to determine the validity of an equitable claim such as quantum meruit and the Clerk of the Circuit Court maypaysuch claim at the County's Y direction. As the elected Clerk of the Circuit Court of Collier County, you are charged by the Florida Constitution with acting as the "ex officio clerk of the board of county commissioners,auditor, recorder and custodian of all county funds."[1] Section 129.09, Florida Statutes, also makes the clerk personally liable if he or she pays any claim against the county that is not authorized by law. Thus, as your letter advises, the clerk, by law, possesses certain pre-audit functions and powers requiring him or her to refuse to make expenditures or authorize disbursements of public funds that he or she believes may be illegal. You have questioned the procedure used by Collier County in several contracts entered into for professional services. This office has no authority to review contracts entered into by the county or to comment on the terms of those contracts. Like the courts,this office must presume that official actions taken by the county are valid and enforceable until a court of competent jurisdiction determines otherwise.[2] For these reasons, my response to your request for an opinion on Collier County's compliance with the procedures of the Consultant's Competitive Negotiation Act(the CCNA)will be general in nature. Question One The Consultants' Competitive Negotiation Act, section 287.055, Florida Statutes, creates a qualifications based selection process for the procurement of professional architectural, engineering, landscape architectural, or land surveying services[3] by governmental agencies.[4] Pursuant to the act, an agency, including a county, must competitively select and negotiate with the most qualified firm to provide these professional services for a project.[5] The statute also provides that "[n]othing in this act shall be construed to prohibit a continuing contract between a firm and an agency."[6] Section 287.055(3), Florida Statutes, operates to require a county subject to the CCNA to follow certain procedures for announcing occasions when professional services are required to be purchased and for certifying firms or individuals desiring to provide such services as qualified. The statute directs agencies to adopt administrative b p at ve procedures for the evaluation of professional services.[7] An agency is required to publicly announce each occasion when professional services are required to be purchased for a project covered by the statute.[8] Section 287.055(4), Florida Statutes, states that an agency must evaluate firms that offer to provide professional services for a proposed project and select no fewer than three firms that are deemed to be the most highly qualified to perform the required services.[9] The statute provides criteria for evaluating the qualifications of these firms and prohibits the consideration of compensation until after the three most qualified firms are selected: ADVISORY BULLETIN 10.038 PAGE 3 "In determining whether a firm is qualified,the agency shall consider such factors as the ability of professional personnel; whether a firm is a certified minority business enterprise; past performance; willingness to meet time and budget requirements; location; recent, current, and projected workloads of the firms; and the volume of work previously awarded to each firm by the agency, with the object of effecting an equitable distribution of contracts among qualified firms,provided such distribution does not violate the principle of selection of the most highly qualified firms. The agency may request, accept, and consider proposals for the compensation to be paid under the contract only during competitive negotiations under subsection (5)."[10] (e.s.) Following competitive selection, the act requires that the agency negotiate a contract with the most qualified firm at a compensation level determined to be fair, competitive, and reasonable. To make this determination, "the agency shall conduct a detailed analysis of the cost of the professional services required in addition to considering their scope and complexity."[11] If the agency is unable to negotiate a satisfactory contract with the most qualified firm at a price that the agency determines to be fair, competitive and reasonable, negotiations with that firm are terminated and the agency must undertake negotiations with the second most qualified firm.[12] This procedure is followed until an agreement is reached.[13] Thus, the CCNA is a statutory procurement system that contemplates a four-step process: public announcement of the work,qualifications-based selection of the professional firm, arms-length negotiations with the most qualified firm and,ultimately, execution of a contract. As.this office concluded in Attorney General Opinion 88-42, a process that establishes a fee for proposed professional services prior to the initiation of the other steps required by section 287.055, Florida Statutes, would not comply with the requirements of the act, which mandates a project-by- project selection and negotiation process.[14] Collier County's procurement policy for professional services recognizes that "requests exclusively for services defined under VILB.2 [relating to those services within the scope of the CCNA] will be procured in a manner consistent with Section 287.055, F.S., known as "The Consultant's Competitive Negotiation Act" as required bysaid statute. may P b q Projects include, but are not strictly limited to one or more of the following: 1. Fixed assignment contracts: A grouping of minor professional service(including construction inspection services)assignments. 2. Fixed term contracts: Countywide agreements for various and miscellaneous minor professional services(including construction inspection services)on an as needed basis. 3. General Professional Services: Includes administration, support and management of engineering, architectural, surveying and planning activities." _j 1 ADVISORY BULLETIN 10.038 PAGE 4 However, the policy goes on to authorize the county's purchasing director to qualify those requests for services by soliciting proposals on a "best value" basis involving both qualifications and price. Nothing in section 287.055, Florida Statutes, would authorize a county to adopt a procedure in conflict with the provision of the CCNA mandating a project-by-project selection and negotiation process. In Attorney General Opinion 07-12, this office was asked whether a city project met the requirements of section 287.055, Florida Statutes, the Consultants' Competitive Negotiation Act, when a construction manager at risk or program manager at risk contract was used for the design r—r and construction of a multi-phase project and each phase of the project was separately negotiated I for a guaranteed maximum price and completion date. The opinion concluded that "separately negotiating each phase of a multi-phase project that has been awarded to a construction manager at risk or program manager at risk does not comply with the plain language or intent of section 287.055(9)(c), Florida Statutes," and that the procedures of the statute "clearly indicate that compensation will be negotiated prior to the selected firm beginning work under the contract."[15] It appears that Collier County has attempted to adopt a procurement procedure similar to that _ authorized under section 287.057, Florida Statutes. That statute includes a provision for using a "best value" approach in acquiring certain commodities and services outside the scope of the . CCNA. However, nothing in section 287.055, Florida Statutes, would extend the authority to negotiate price as a factor in the competitive selection and negotiation process except by using the project-by-project evaluation process mandated in section 287.055, Florida Statutes. Finally, there is a suggestion in some of the materials forwarded to this office that continuing contracts or fixed term contracts may not be subject to the same project-by-project consideration that the CCNA otherwise requires. On the contrar y, "continuing contracts" for the acquisition of professional services including those for a fixed term are specifically made subject to section 287.055, Florida Statutes, and the Legislature has directed that these contracts may only be entered into "in accordance with all the procedures of this act."[16] Thus, an agency is required to comply with the four-step process when entering into continuing or fixed term contracts: public announcement of the work, qualifications-based selection of the professional firm, arms- length negotiations with the most qualified firm and, ultimately, execution of a contract. The Legislature has specifically provided that "[fjirms providing professional services under continuing contracts shall not be required to bid against one another."[17] While this office has concluded that an agency may enter into multiple continuing contracts, compliance with the CCNA is required in each instance.[18] Thus, section 287.055(2)(g), Florida Statutes, would control any continuing contracts for professional services into which Collier County may enter and would prohibit the authority from asking firms providing professional services under continuing contracts to bid against one another. • It ADVISORY BULLETIN 10.038 PAGE 5 Question Two You ask whether you are authorized under a claim of quantum meruit to pay contractors who have provided professional services to Collier County pursuant to the policy discussed above. While this office will not comment on contracts into which Collier County has entered, I would note that the general rule is that a contract which is beyond the scope of authority vested by law in the board of county commissioners or which is in violation of law is invalid and unenforceable.[19] Similarly, since county officers can exercise only such powers as are conferred on them expressly or impliedly by constitutional or statutory provision, contracts made on behalf of the county by officers or agents without lawful authority to do so are likewise invalid.[20] However, you have suggested that the board of county commissioners may be estopped to deny the validity of contracts entered into under the policies of the county when these contracts have been fully executed and professional services have been provided to the county. Under these circumstances, you ask whether you, as clerk of the circuit court, are authorized to make a determination of the validity of any such claim and make payment for professional services rendered thereunder. This office has previously stated that the clerk of the circuit court, although a constitutional officer,possesses only such powers as have been expressly or by necessary implication granted by statute.[21] Thus,the clerk's powers, like those of other constitutional county officers, are limited to those powers which have been expressly granted or are clearly necessary to give meaning and effect to those powers which have been expressly granted.[22] In the case of Alachua County v. Powers,[23] the Clerk of the Circuit Court of Alachua County sought a declaratory judgment to clarify his fiscal duties as clerk of the county commission in four capacities: as auditor, accountant, custodian, and investor of county funds. The Florida Supreme Court stated that the trial court had correctly determined that "the Clerk was to act as county auditor in all auditing functions except when the board employs an independent auditing firm pursuant to Section 125.01(1)(x), Florida Statutes (1975)."As the Court in Alachua County v. Powers. stated: "The clerk has the authority and responsibility to perform the auditing functions both as an arm of the board in auditing the records of constitutional officers and as a watchdog of the board in the case of pre-auditing accounts of the board in determining legality of expenditure. The phrase "legality of expenditure" includes that the funds are spent for a public purpose,that the funds are spent in conformity with county purchasing procedures or statutory bidding procedures,that the expenditure does not overspend any account or fund of the budget as finally adopted and recorded in the office of the clerk. If the board becomes concerned, it has the authority to require a performance audit or post-audit by an independent accounting firm."[24] No statutory or constitutional authority would authorize the clerk of court to make a determination of the validity of equitable claims made under contracts entered into by Collier County. Section 1(e), Article VIII of the Florida Constitution states that, unless otherwise provided by county charter,the governing body of each county shall be a board of county commissioners. ADVISORY BULLETIN 10-038 PAGE 6 Section 125.01(1), Florida Statutes,provides, in pertinent part, that "[tlhe legislative and governingbodyof a county shall have the power to carry on county government. . . ." Pursuant to section 125.01(3)(a), Florida Statutes,the county commission is empowered to enter into contractual obligations to carry rry out any of its enumerated or implied powers. Finally, under section 125.15, Florida Statutes, the county commissioners must sue and be sued in the name of the county of which they are commissioners. Thus, it is clear that, under state law,the board of county commissioners is the agency which is authorized to act for or on behalf of the coup 25 ] As a number of Florida Attorney General Opinions and Florida Supreme Court Opinions have noted: 1 "Florida has, for many years, recognized the liability of a County on quantum meruit for the value of work done and materials furnished to a County which receives benefit therefrom[:]"[26] Thus, while this office is not a fact-finding agency and is without authority to determine whether or not a negotiated settlement represents the fair and reasonable value of the professional services provided to Collier County, it would appear that the county commission would be authorized to make such a determination and order payment of the claim.[271 I am, therefore, of the opinion that the clerk of the circuit court does not have the authority to. determine the validity of an equitable claim such as quantum meruit and to make payment of such a claim unless directed to do so by the board of county commissioners. Finally, the materials you have submitted ubmitted cite several cases which hold that a contract entered into in violation of statutes and rules requiring competitive bids "is absolutely void, and . . . no rights can be acquired thereunder by the contracting party."[28] In these cases, a local governmental entity contracted for goods, but did not comply with competitive bidding requirements and Florida courts refused to employ equitable remedies to compensate the contracting party. Under this analysis, a contractor may not recover even on a quantum meruit basis if the contract was let without compliance with mandatory competitive bidding requirements. While expressing no comment on how a court might view the contracts entered into by Collier County under its "procurement of professional services"procedures, I would note that the county's procedure does not completely disregard or abandon the CCNA and competitive negotiation. Rather, the county appears to have utilized additional factors in its competitive selection process that are not currently contemplated by the.CCNA. Sincerely, • Bill McCollum Attorney General BM/tgh ADVISORY BULLETIN 104138 PAGE 7 [1] Article VIII, s. 1(d), Fla. Const. - [2] C fEvans v. Hillsborough County, 186 So. 193, 196 (Fla. 1938); White v. Crandon, 156 So. 303, 305 (Fla. 1934);State ex rel. Gillespie v. Thursby, 139 So. 372, 375 (Fla. 1932); Belk- James, Inc., v. Nuzum, 358 So. 2d 174, 177 (Fla. 1978), for the proposition that a statute is presumptively valid and must be obeyed and given effect unless and until it is judicially determined invalid. • [3]See s. 287.055(2)(a), Fla. Stat., defining "[p]rofessional services." A review of the "Procurement of Professional Services" section of the Purchasing Policy of.Collier County indicates that "a professional service" for purposes of the county policy may also include such services as medical services and legal services. These services are obviously outside the scope of section 287.055, Florida Statutes. [4] See s.287.055(2)(b),Fla. Stat., which defines "[a]gency" as "the state, a state agency, a municipality, a political subdivision,a school district or a school board[;]" and s. 1.01(8), Fla. Stat., defining the term "political subdivision' to include counties. ' [5] Section 287.055(4) and (5), Fla. Stat. [6] Section 287.055(4)(d),Fla. Stat. [7] See s. 287.055(2)(a) and (b), Fla. Stat., respectively defining "[p]rofessional services" and "[a]gency." [8] Section 287.055(3), Fla. Stat. [9] See s. 287.055(4)(c), Fla. Stat., setting forth exceptions to the application of the statute. [10] Section 287.055(4)(b), Fla. Stat. [11] Section 287.055(5)(a), Fla. Stat. [12] Section 287.055(5)(b), Fla. Stat. [13] Section 287.055(5)(c),Fla. Stat. [14] See Alsop v. Pierce, 19 So. 2d 799, 805 (Fla. 1944) ("When the Legislature has prescribed the mode, that mode must be observed."). C.f City of Jacksonville v. Reynolds, Smith & Hills, Architects, Engineers & Planners, Inc., 424 So. 2d 63 (Fla. 1st DCA 1982), in which the court recognizes that budget considerations may be a factor in selecting the covered professional services. r ADVISORY BULLETIN 10-038 PAGE 8 [15] Subsequent to issuance of this opinion, Ch. 2007-159, Laws sot Fla.,was enacted to define the manner in which local governments can utilize the services of construction management or program management entities. [16] Section 287.055(2)(g), Fla. Stat. [17] Id. [18] See Op. Att'y Gen. Fla. 07-49 (2007). [19] 20 C.J.S. Counties s. 193;Jones v. Pinellas County, 88 So. 389, 390 (Fla. 1921);National Bank of Jacksonville v. Duval County,34 So. 894, 895 (Fla. 1903);accord: Robert G. Lassiter & Co. v. Taylor, I28 So. 14(Fla. 1930) (applying rule with respect to contracts made by municipal corporations). [20] 20 C.J.S. Counties s. 193; Ramsey v. City of Kissimmee, 149 So. 553, 554 (Fla. 1933) (in the absence of ratification by the city council, a contract will not-be enforced where the mayor rather than the city council signed the contract, and where the city charter did not authorize the mayor to contract on behalf of the city); Fruchtl v. Foley, 84 So. 2d 906, 908 (Fla. 1956) (where charter required the city attorney to perform such duties 'as may be required of him by ordinance or resolution of the City Board of Managers'the city attorney who received only oral instructions to represent city in land transaction did not have the power to bind the city to the resulting conveyances; hence, such conveyances were void). School Board of Leon County v. Goodson, 335 So. 2d 308, 310 (Fla. 1st DCA 1976) (school board has exclusive authority to form contracts with instructional personnel of school system;hence, agreement between principal and teacher in regard to teacher's employment was not binding on county school board, absent any indication board approved agreement). [21] See, e.g., Op. Att'y Gen. Fla. 78-95 (1978), concluding that,in the absence of any authorizing statute,the clerk of the circuit court was not authorized to enter into a contract for insurance as specified therein, and Ops. Att'y Gen. Fla. 77-76 (1977)and 79-70 (1979); cf. Op. Att'y Gen. Fla. 80-59 (1980).And see Security Finance Co. v. Gentry, 109 So. 220, 222 (Fla. 1926), in which the Florida Supreme Court stated that "[t]he clerk's authority is entirely statutory, and his official action, to be binding upon others, must be in conformity with the statutes." Cf. Pan American World Airways v. Gregory, 96 So. 2d 669, 671 (Fla. 3d DCA 1957), stating that "[t]he clerk is an officer of the court whose duties are ministerial and as such he does not exercise any discretion." [22] See Overholser v. Overstreet, 383 So. 2d 953 (Fla. 3d DCA 1980) (clerk's authority is entirely statutory, and his official action to be binding upon others,must be in conformity with such statutes);Ferlita v. State, 380 So.2d 1118 (Fla. 2d DCA 1980) (clerk of court's power to act must clearly appear from particular statute). Gessner v. Del-Air Corporation, 17 So. 2d 522 (F1a.1944); and 67 C.J.S. Officers s. 190(a).See also Ops. Att'y Gen. Fla. 86-94 (1986), 78-95 (1978) and 75-161 (1975). [23]Alachua County v. Powers, 351 So. 2d 32 (Fla. 1977). [24] Supra at 37. ADVISORY BULLETIN 10-038 PAGE 9 [25] See Kirkland v. State, 97 So. 502 (Fla. 1923). [26] Pinellas County v. Guarantee Abstract & Title Co., 184 So. 2d 670 (Fla. 2d DCA 1966), citing Harwell v. Hillsborough County, 149 So. 547 (Fla. I935); Moore v. Spanish River Land Co., 159 So. 673 (Fla. 1935); and Webb v. Hillsborough County ,t . 175 So. 874 (Fla. y. 1937). [27] See s. 125.01(l)(b), Fla. Stat.,providing that the board of county commissioners is 1- empowered to "[p]rovide for the prosecution and defense of legal causes in behalf of the county . . .;" White v. Crandon, 156 So. 303, 305 (Fla. 1934), in which the Supreme Court held that a bona fide dispute between the county commissioners and another county officer regarding the disbursement of county revenues pursuant to acts of the county officer,whose authority to act for and bind the county as purchasing agent is reasonably questionable by the county commissioners, constituted a "legal cause" which the county commissioners were entitled to prosecute or defend under statutory authority conferred upon them to represent the county in the prosecution and defense of"all legal causes"; and Op. Att'y Gen. Fla. 60-90 (1960), in which this office concluded that "[a]s the financial agent of the county having general control over its property and the management of its business, the board of county commissioners has the power to compromise and settle claims in favor of the county and claims against the county." [28] Harris v. School Board of Duval County, 921 So. 2d 725 (Fla. 1st DCA 2006);Armco Drainage &Metal Products, Inc. v. County of Pinellas, 137 So. 2d 234 (Fla. 2d DCA 1962). VIII. AUDITEE RESPONSES - KLWTD ; , EXHIBIT A KLWTD Response, a four (4) page memorandum. MEMORANDUM FROM: Thomas M. Dillon, Attorney at Law Board Certified in Construction Law P.O. Box 370736 Key Largo, Florida 33037-0736 Tel: 305-240-1767 Fax: 305-723-6333 E-mail Iawtmd@gmail.com To: Martin D. Waits, CFO Key Largo Wastewater Treatment District Date: June 18, 2010 . Subject: Monroe County Audit Report of May 27, 2010 This memorandum will respond to the findings in the captioned report regarding the District's procurement of the services of design professionals and the District's use of change orders to award additional work to contractors. As further explained below, it is my opinion that the audit findings are incorrect and unsupported by the law or the facts. Therefore, I believe that the findings should be removed from the audit report. Procurement of Design Services This issue turns on the correct application of the Consultants Competitive Negotiation Act ("CCNA".) § 287.055, F.S. CCNA governs the procurement of the services of design professionals. A "design professional" is an architect, professional engineer, landscape architect, or registered surveyor and mapper in connection with his or her professional employment or practice. § 287.055(2)(a). . The audit report correctlystates that CCNA requires the District to follow certain u P procedures in the procurement of design services. However, the audit report incorrectly interprets the requirements of CCNA and their application to the District's procurement of these services. CCNA requires the District to announce publicly each occasion when professional services must be purchased for a project in which the basic construction cost is estimated to exceed a specified threshold amount or the cost of the design services is estimated to exceed a specified threshold amount. CCNA defines the term "project" to include "A grouping of substantially similar construction, rehabilitation, or renovation activities." § 287.055(2)(f)2. The design and construction of central sewer infrastructure, which occurred in several phases, dearly meets the statutory definition of"project." In April 2003, prior to my tenure as District Counsel, the District issued a "Request for - Statement of Qualifications for Wastewater Professional Engineering Services" ("RFQ".) _. A copy of the RFQ is attached to this memorandum. As a result of the RFQ, the District obtained statements of qualifications from a number of design firms, and entered into written contracts with 7 engineering firms. These firms, collectively, constituted a "library' of firms that were eligible to perform design services for the District. In February 2006, the District sent out another RFQ for design services, a copy of which is attached to this memorandum. As a result of this RFQ, the District updated its contracts with engineering firms, and also updated its library of firms. Since 2003, the District has had several occasions to award design work to design firms. On each of those occasions, the District assigned three persons (District General Manager, District Engineer, and District Engineering Consultant) to review independently the statements of qualifications of the firms in the library. The District. General Manager received the results of these reviews, and submitted a ranking of the three most qualified firms to the District Board for review. As a result, the District awarded design contracts for various phases of the project to seven different firms. There are no reported Florida judicial decisions interpreting the public announcement , requirements of CCNA. A commentator has described the public announcement process as follows: Under the CCNA, the public announcement may be the only written statement of the scope of the project. Consequently, a public announcement under the CCNA takes on great importance. For example, an agency may be limited in what the architect can do because of an abbreviated public announcement. The public announcement, therefore, should be wide in scope and include any reasonable work associated with the project. John W Bakas, Jr. in FLORIDA CONSTRUCTION LAW AND PRACTICE (Fla. Bar CLE 5th ed. 2006) §7.98. Based on the foregoing,, it is clear that the District complied with the requirements of CCNA by establishing libraries of qualified firms and following the evaluation process in CCNA on each occasion when design services were required. The fact that the District used continuing contracts as the contracting vehicles is simply immaterial. The audit report acknowledges that the District followed the procedures above. Nevertheless, the audit report finds that the District violated CCNA by using continuing contracts with the various firms. There are no judicial decisions or other authorities for the auditors' finding. It is my belief that the auditors have erroneously interpreted the requirements of CCNA with regard to the requirement to publicly announce projects. The auditors have assumed erroneously that a public announcement was required for each phase of the design work when, in fact, the announcement is required only for the "project' as defined in CCNA. As a result, the auditors have found erroneously that the District failed to comply with CCNA. It is my opinion that the auditors' erroneous finding should be stricken from the audit report. Monroe County Audit Report Page 2 of 4 (-i L Change Orders This issue turns on whether the District may use the change order process to award additional work to contractors on publicly bid contracts. Under the Local Bid Law (§ 255.20, F.S.), local governments, including the District, are required to "competitively award" construction projects exceeding a certain threshold amount. § 255.20(1). Beginning in 2007, the District began to solicit bids for construction of collection systems. The very first solicitation was for Basin A, Phase 1. The solicitation documents identified Basin A, Phase 1 as the work for which bids were solicited. However, among the documents in the solicitation was Section 00520 (copy attached), the form agreement, which included the following provision: B. Scope of Work The Contrac tor shall perform all work required by the Contract Documents for the construction of the Vacuum Collection System - Basin A, Phase 1. In addition, provided Contractor is performing satisfactorily, Owner may offer Contractor the opportunity to perform similar work on other collection system basins andlor phases. Thus, the scope of work included not only Basin A, Phase 1, but also, at the District's option and subject to satisfactory performance by the contractor, additional work in other basins or phases. All bidders were aware of the scope of the contract to be awarded. Five companies bid on this work, and no-one protested or otherwise objected to the scope of the work as set out in Section 00520. All of the subsequent contract solicitation packages included Section 00520 (copy attached) as set out above. Later solicitation packages also included similar words in the Invitation to Bid (Section 00100), as follows: This project consists of the construction of approximately lineal feet.of 4-inch, lineal feet of 6-inch and lineal feet of 10 inch vacuum mains, collection pits and laterals and lineal feet of 8 inch gravity sewers and laterals within Basin_. In addition, provided the successful bidder is performing satisfactorily, Owner may offer the successful bidder the similar work on other collection system basins andlor phases at the unit prices bid for this work. Contractor will be expected to accept any and all additional work at the unit prices bid for this work. It is well-known that nearly every construction contract involves change orders. Bruce D. Partington, Luis Prats, and Wm. Cary Wright in FLORIDA CONSTRUCTION LAW AND PRACTICE (Fla. Bar CLE 5th ed. 2006) § 2.13. There are no reported Florida judicial decisions addressing the question whether a local government must follow competitive procurement procedures in order to issue a change order expanding the work under the Local Bid Law. Monroe County Audit Report Page 3 of 4 iI The general rule regarding change orders is that an owner is entitled to issue change orders expanding the work when the expanded work is within the scope of the contract and most owner-contractor agreements provide a mechanism for these types of changes. Id. at § 2.13. The District uses the EJCDC (Engineers Joint Documents Committee Design and Construction Related Documents) form as the basis for District contracts, and these documents include a provision for change orders, as follows: 10.01 Authorized Changes in the Work A. Without invalidating the Contract and without notice to any surety, Owner may, at any time or from time to time, order additions, deletions, or revisions in the Work by a Change Order, or a Work Change Directive. Upon receipt of any such document, Contractor shall promptly proceed with the Work involved which will be performed under the applicable conditions of the Contract Documents (except as otherwise specifically provided). Therefore, the District had the right under its competitively bid contracts to increase the quantity of the work to include basins and phases in addition to those for which the contract solicitation was issued, and the issuance of change orders did not violate the Local Bid Law. In addition, the auditors failed to consider that the District, actually did competitively procure the change order work. The Local Bid Law, does not require competitive sealed bids for work, but requires only that such work be"competitively awarded." F.S. 255.20, the "Local Bid Law," requires counties, cities, and special districts to "competitively award" projects exceeding $200,000. F.S. 255.20(1). "Competitively award" does not always mean "bidding." It may include the use of a request for proposals or even competitive negotiation. John W Bakas, Jr. In FLORIDA CONSTRUCTION LAW AND PRACTICE (Fla. Bar CLE 5th ed. 2006) § 7.4. In every case, the District awarded competitively bid contracts to the responsible bidder submitting the lowest responsive bid. In awarding the changes, the District General Manager solicited proposals from its existing contractors for the change order work, competitively negotiated with them, considering such factors as satisfactory performance and completion of previously awarded work, ability to perform proposed work, and price, and recommended the award of change order work to existing contractors who provided the lowest-priced proposals. The Board approved these - recommendations at public meetings. Therefore, the change order process was consistent with the Local Bid Law. While the auditors are technically correct in their assertion that the District is not authorized to waive competitive processes under § 189.441, F.S., that assertion does not affect the validity of the change order processes, which were entirely consistent with the Local Bid Law. Monroe County Audit Report Page 4 of 4 EXHIBIT B IMWTD exhibits to the memorandum. 71 Effie Miami Herr'ib www.herald.com www.elherald.com PUBLISIIED DAILY ?IIAMI-DADE.FLORIDA WARTEw TEA i 1VIEAYMENTIl{ DIS7atCT S'IsAl'E OF FLORIDA • pp QQulOTKOA OV LIciGA710NB ' COUNTY OF 11IIA5II•DADE wi�o�7ewtrTBa CommiASM10610Np CYSTPM DESIGN . Before the undersigned authority personally Was tewaoe Large i appeared: TggIdmOnli {KLW TTM pence/,mlo nta nooks Dae111(Callona ienle t°m Fi ORFINIM IVIORENU hrWl"..a hn�a Drooviiwar • me tgi.v i i i futwa I waslawat.r Gollob t who on oath says that he/she is •�^ a a""°n'- i xLwgd'tuned. 10 nlar Ines A rc.clonal w Ih up pgroamenta w M uP 1 CLISTOI)IAN OF RECORDS n na„w,of nee moat l luahlY �u.utled Enpinedltnq Frma le t1artw� m Iho da.tgn hI the no de8eabed of The Miami herald,a daily newspaper published at nor th• lion ' 'd u mm r'I d below and (Miami in Ivliaini•Dade County,I;torida;that the nta daared ..urea. attached copy of advertisement was published in said melud.th.d lleol of 'end tiansinl°Osabn lnn newspaper in the issues of: !,plum,.■desertbad - further aiiii Jueal tar Ooanlical ons. Thai haunt el, Om March 21 and Match 28,2006 soiled Board la eD —_ soiled atetamonn of atralifrlalbns Nor. encrusted[Irma la •.. dp'iratpti adelhe•S Affiant further says that the said The Miami 1.lcraid wastewater contralto') --- and ranambalen is a newspaper published at Miami,in the said system r.Ompononw. to obtain aperaMtlIg Miami Dade County,Florida and that the said P er"'}10";pd, "1O°°" DePOAm•nt of ' newspaper has heretofore:been continuously published Environmental Protaellon and otter __ in said M[iarnt-1,�ad Florida County. each day and has ;gals, b•a°d la 0°11Wlalton and been entered as second class mail matter at the post construellnncentraet doOWaents- Tire office in Miami,in said Miami•Dade County,Florida, tateelW urns Iwin I,. y KLwm°elv Sao a el for a period of one year next preceding the first Merengue IhoGounnN. Me XLW T D Eopirm D publication of the attached copy of advertisement; aga and orAL 1%uohoui ailipGlnts and afhant further says that he has neither paid nor a°ugnwrnk. - promised any person,firm or corporation any discount, 1T,e Request for Oua118eetbm dgeumenea intIV rebate.commission or refund for the purpose of abwn.0 tram nhe Dislrlut Clark. securing this advertisement for publication in the said �� trlaltst adrlrase: �syspapers(s). f P O.T1aos aAt ---� ,- XOY Lerge.FL.99g3e ' ] Q&ron J K•Lill°V•fi°rlaa Email maxi. Sworn to and subscribed before me this cjsimpklns+. bellaauth.net. _301hday of March 2006 Ir,ochewan.� quaa11oh0. p a0. contaClarkct the ONtnhi My Conlrnisston M de,•thrm rl et -- Expires'-7 August I,2006_�. a.m.eFridaY a°twe�in a:00 c� �.,...�_ _ a.m.end B:oO D.m, re. lllr a SC�I1drB i .T,1 KEY.LAttT30 1 / i • WASTEWATEP. _GISTair l Notary 1 ::--.., SILVIA St"IM; . RI:'tt. :._ MYCOMMIsSi r<C-0h$11tO2 tit .`1.1'1 WIRES:h;r ett i.2Jt1G .tl E.-.-' l!'....Ni r,°.dint:—r•eTI iii'31:t/L'NA'iwVo.:4RrM-4,7iN.e i•wWi•,MMMI. • l SUN-SENTINEL 'art WA$(EWAIER PUBLISHED DAILY TREATMENT DISTRICT FORT LAUDERDALE .BROWARD COUNTY,FLORIDA REQUEST TORt QuaunCartoes BOCA RATON,PALM BEACH COUNTY,FLORIDA WASTEWATER 1 ANoTq,WIESMll sIQN ON MIAMI, MIAMI DADE COUNTY, FLORIDA • SYSTEMOESIGN The Key Largo waste• ,Waler Ti Himont Orstritt • IKLWTO) Beard a1 corn• STATE OF FLORIDA missioners seeks Sate. meats of Qualifications COUNTY OF BROWARD/PALM BEACH/MIAMI DADE rrom Engineering Firms . RE THE UNDERSIGNED AUTHORITY, PERSONALLY APPEARED that wish to provide de•siggi1l SerMlce$ for ur& t f r �^ KLWfo•s Wlwa wastewa- ' 4•f:.CLrr_ �� L7l•kC.Z.) WHO,ON OATH,SAYS THAT panslons. hea wtL O in-' H HE IS At.DULY AUTHORIZED REPRESENTATIVE OF THE CLASSIFIED tends to enter mioProres- IIINNNJJJ stanol Services Agree-. DEPARTME T OF THE SUN-SENTINEL,DAILY NEWSPAPER PUBLISHED MOMS With u ter Man IN BROWARD/PALM BEACH/MIAMI DADE COUNTY, FLORIDA, AND THAT THE the moat hi�iiy Quallli d Engineerin sinnsto er- ATTACHED COPY OF ADVERTISEMENT,BEING A: form the aisrgn services as described In the Re- Quest for Qualifications REQUEST FOR QUALIFICATIONS and summarized below. The desired services In- waieimecdesign aw end • IN THE MATTER OF: transmission Systems as. • • described further In the: Wastewater Colleclion and Transmission Requestona. The for n ortho Nona. intern of the statements j IN THE CIRCUIT COURT,WAS PUBLISHED IN SAID NEWSPAPER IN THE dons from Interested ISSUES OF: firms to_draws detailed design of the wasteweler Eollccdon and trensmis- eron system Components, a/z1,28 12768511 to obtain appropriate per- mitting through the Flan- ' AFFIANT FURTHER SAYS THAT THE SAID SUN-SENTINEL IS A NEWSPAPER menial PrO elclion and PUBLISHED IN SAID BROWARD/PALM BEACH/MIAMI DADE COUNTY,FLORIDA, other agencies, and to -- AND THAT THE SAID NEWSPAPER HAS HERETOFORE BEEN CONTINUOUSLY andconstiuUonc�ontract PUBLISHED IN-SAID BROWARD/PALM BEACH/MIAMI DADE COUNTY,FLORIDA, documents.wort�iosed EACH DAY.AND HAS-BEEN ENTERED AS SECOND CLASS MATTER AT THE with the KLWTO General POST OFFICE IN FORT LAUDERDALE,IN SAID BROWARD.COUNTY,FLORIDA, manesCounsel. theEL xLwri- Counsel,the TNTD Engl- FOR A PERIOD OF ONE YEAR NEXT PRECEDING THE FIRST PUBLICATION OF nemr and other xLwro staff and consultants ATTACHED COPY OF ADVERTISEMENT;AND AFFIANT FURTHER SAYS THAT throughout the design HE/SHE HAS NEITHER PAID,NOR PROMISED,ANY PERSON, FIRM, OR work CORPORATION,ANY DISCOUNT,REBATE,COMMISSION,OR REFUND,FOR THE cationsdocllnttefntscanbe PURPOSE OF SECURING THIS ADVERTISEMENT FOR PUBLICATION IN SAID obtain theoistriet -- NEWSPAPER. Mailing address' .J��' �l/�(/ (�1 `11I Key Letgo FL'3303 6 ` •L ' '• ` •�f I C r-��' 98880 Overseas highway ' (SIC TURE.C F AFFIANT) Key Lero,Florida 33037 Email address: c slmpkins@bglorth-net SWORN TO AND SUBSCRIBED BEFORE ME e�ii your have`r a'riy.ques- ON: 28-March, 00 A.D. lions, iien,pleasect clerk Ce the �' . 5804,Monday through Fri. - �_ A ,../ b s between 9:00 a.m. pm. i KEY CARGO WASTEWATER: (SI TREATMENT DISTRICT [ �''�jl) March 21,28,2806 Q.C1.It 49 1 e a a :Commission 15 0G326.riC6 ` expires June 6,zoos -- N�-e,r °+.wt:ittrzw++MNY ,iMfAtimom"'1E...01. (NAME OF NOTARY,TYPED,PRINTED, OR STAMPED) PERSONALLY KNOWN t- OR . PRODUCED IDENTIFICATION M �f r- 1 SECTION 2 005 0 AGREEMENT FORM Revised 1/11/07 PART 1 GENERAL 1.01 THIS AGREEMENT, made this day of , , by and between 1)Kev•Larao Wastewater Treatment District, hereinafter called the Owner,and 2) ,doing business as a 3) , and hereinafter called the Contractor. t) Name of Owner 2) Name of Contractor 3) Corporation,Partnership,Sole Proprietor 1.02 The Owner and Contractor agree as follows: A. Contract Documents The Contract Documents include the Agreement, Addenda (which pertain to the Contract Documents), Instructions to Bidders, Contractor's Bid, Notice to Proceed, the Bonds, the General Conditions, the Supplementary Conditions, the Specifications listed in the index to the Project Manual, any technical specifications as incorporated by the Project Manual; the Drawings as listed in the Project Manual, all Written Amendments, Change Orders, Work Change Directives, Field Orders, and Engineer's written interpretations and clarifications issued on or after the Effective Date of this Agreement. These form the Contract and all are as fully a part of the Contract as if attached to this Agreement or repeated herein. B. Scope of Work The Contractor shall perform all work required by the Contract Documents for the construction of the Vacuum Collection System -Basin A. Phase 1. In addition, provided Contractor is performing satisfactorily. Owner may offer Contractor the opportunity to perform similar work on other collection system basins and/or phases. C. Contract Time The Contractor shall begin work within 10 days after the issuance of a written Notice to Proceed and shall achieve substantial completion of the work within calendar days from the date of the Notice to Proceed. The work shall be finally complete, ready for Final Payment in accordance with the General Conditions, within 30 calendar days from the actual date of substantial completion. See also Supplementary Condition, Section 00800, SC-12.02.C-E. 00520-1 SPECU6021104 NAME OF PROJECT: Collection System -Basin A, Phase 1 (Revised 1/11/07) F D. Liquidated Damages OWNER and CONTRACTOR recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not substantially complete within the time specified in Paragraph C above, plus any extensions thereof allowed in accordance with the General Conditions_ They also recognize the delays, expense and difficulties involved in proving in a legal arbitration proceeding the actual loss suffered by OWNER if the Work is not substantially complete on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay(but not as a penalty)CONTRACTOR shall pay OWNER$1000.00 for each calendar day that expires after the time specified in Paragraph C for substantial completion until the work is substantially complete. It is agreed that if this Work is not Finally completed in accordance with the Contract Documents, the CONTRACTOR shall pay the OWNER as liquidated damages for delay, and not as penalty,one-fourth (1/a)of the rate set forth above. E. Contract Price Unit Price Contract The Owner will pay the Contractor in current funds for the performance of the work, subject to additions and deductions by Change Order and subject to the Measurement and Payment Provisions, and subject to actual constructed quantities;the Total Contract Price of Dollars ($ ). Payments will be made to the Contractor on the basis of the Schedule of Unit Prices included as a part of his Bid, which shall be as fully a part of the Contract as if attached or repeated herein. F. Payments The Owner will make payments as provided in the General Conditions and . Supplementary Conditions. G. Retainage The value of each application for payment shall be equal to the total value of the Work performed to date, less an amount retained, and less payments previously made and amounts withheld in accordance with the General Conditions and Supplementary Conditions. Retainage for this project is 10%, to be held by Owner as collateral security under Section Fla. Stat. §218.735 (2006) until 50 percent completion of.the Work. After 50 percent completion of the Work, as determined by the.Engineer, the rate will be reduced to 5 percent withheld from each subsequent progress payment made to the contractor. 00520.2 SPECUBO21104 NAME OF PROJECT: Collection System - Basin A, Phase 1 (Revised 1/11107) 1 '� IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written, CONTRACTOR: Name of Firm �-i By(Signature) (SEAL) Printed Name and Title ATTEST: By(Signature) Printed Name and Title OWNER: Name of Owner By(Signature) (SEAL) Printed Name and Title ATTEST: By(Signature) Printed Name and Title END OF SECTION 00520-3 SCUBO21104 P NAME OF PROJECT: Collection System - Basin A, Phase 1 (Revised 1/11/07) I� r 1 SECTION 00100 INVITATION FOR BIDS Key Largo Wastewater Treatment District(KLWTD) hereby requests Seated Bids up to 4:00 PM on MONTH DAY, 200_for: Vacuum Collection System-Basin_Phase_ This project consists of the construction of approximately. lineal feet of 4-inch, lineal feet of 6-inch and lineal feet of 10 inch vacuum mains, collection pits and laterals and lineal feet of 8 inch gravity sewers and laterals within Basin_. In addition, provided the successful bidder is performing satisfactorily, Owner may offer the successful bidder the similar work on other collection system basins and/or phases at the unit prices bid for this work. Contractor will be expected to accept any and all additional work at the unit prices bid for this work. Bids shall be delivered to KLWTD offices at 98880 Overseas Highway, Key Largo, FL 33037 (Attention: Carol Walker) by the Bid date and time indicated above. Bids will be publicly opened and read aloud in the KLWTD offices at the above date and time by the General Manager or his designee. The clock in the KLWTD offices shall reflect the official time.All proper bid packages received will be opened in no specific order. Bids delivered after the date and time indicated above will not be opened or otherwise considered. Please note that facsimile bids, telegraph bids, email bids, or non sealed bids (i.e. bids not enclosed in an opaque sealed envelope) will not be opened or considered. Any uncertainty regarding the time a Bid is received will be resolved against the Bidder. There will be a mandatory Pre-Bid meeting held at the KLWTD offices at 2 P.M. on MONTH DAY, YEAR. The bidders are requested to perform a site visit to familiarize themselves with the conditions along the project alignment before the pre-bid meeting. Solicitation packages including specifications, terms, conditions, general instructions and bid submission documents will be available by MONTH DAY, YEAR and may be obtained at the KLWTD offices as shown above; Phone 305-453-5804; Facsimile 305-453-5807 upon payment of$100.00 for each set in cash or check made payable to KLWTD. This payment represents the reproduction costs and is non-refundable. A request including the name, address, telephone, and facsimile numbers of the purchaser shall be required to register and purchase a set of the Solicitation Package. Anyone purchasing a complete set of the Solicitation Package must indicate whether he/she is a general contractor, subcontractor, manufacturer, or supplier. Only complete sets of the Solicitation Package will be distributed. Only registered holders of the Solicitation Package will receive addenda. The SOLICITATION PACKAGE, consisting of the Contract Documents, may be examined at the following locations: 1) ENGINEER NAME AND ADDRESS 2) Demandstar.com 3) KLWTD, 98880 Overseas Highway, Key Largo, Florida, 33037 00100-1 1. ail Each Bid shall be accompanied by a Bid Bond for 5% of the maximum Bid amount. Each BID shall be submitted in duplicate originals p in one sealed envelope with the name and address of the Bidder and the bid date and time on the outside along with the following information: "BID FOR VACUUM COLLECTION SYSTEM=BASIN_PHASE_". All questions regarding the project should be directed in writing to KLWTD Attention: VACUUM COLLECTION SYSTEM - BASIN_. Questions received less than seven (7) calendar days prior to bid opening will not be answered. The Owner reserves the right to accept or reject'any or all bids in whole or in part with or without cause, to waive technicalities, or to accept the bid(s) which, in its judgment, best serves the interest of the Owner. END OF SECTION 00100-2