Miscellaneous
OK~~ErY ~o~~~?oE
(05) 294-4641
County Attorney
310 Fleming Street
Key West, FL 33040
(305)292-3470
BOARD OF COUNTY COMMISSIONERS
MAYOR, Jack London, District 2
Mayor Pro Tern, A Earl Cheal, District 4
Wilhelmina Harvey, District 1
Shirley Freeman, District 3
Mary Kay Reich, District 5
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MEMORANDUM
DATE:
March 15, 1994
FROM:
Danny Kolhage
Clerk _ 1;'}/
Suzanne A. Hutton ~
Assistant County Attorney
Interlocal Agreement - White Street Pier
TO:
RE:
Pursuant to our telephone conversation of March 10, 1994, I did
some research on the Consultants' Competitive Negotiation Act and
reviewed the proposed Interlocal Agreement as altered to allow
the City's vendors to directly bill the County. I find no
conflict or potential for the County to be in noncompliance with
Sec. 287.055, FS.
First, our Interlocal Agreement requires the City to abide by all
statute!!. which would include the Competitive Negotiations Act, to
which the City is subject. There is a provision for termination
for breach of agreement which would certainly exist if the City
did not comply with the CNA. Since the County may under Sec.
163.01, FS, enter into an Interlocal Agreement which under
subsection (6) could be administered by only one of the parties,
it is my opinion that the County has covered its bases by provid-
ing for termination upon breach of agreement, including violation
of any statutes, and requiring the City to maintain, and give the
County access to, documentation of performance of the agreement
and expenses incurred as well as financial reports and quarterly
narrative reports of activity. As long as the City provides
sufficient documentation to show that they complied with the CNA
and that: the invoiced services and goods have been provided, the
contract language would be permissible under both Secs. 163.01
and 287" 055. See, for example, the last two paragraphs of AGO
91-34.
If you have any questions or comments, please feel free to call.
SAH/jeh
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ANNUAL REPORT OF THE ATTORNEY GENERAL
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In the absence of a definition in s. 245.08, F.S., the term "indigent"
should be given its ordinary and commonly understood meaning. Accord-
ingly, until legislative or judicially clarified, I am of the opinion that the
term refers to an indi vidual who does not have sufficient property or assets
to provide for a burial.
AS TO QUESTION 5:
You ask whether the Public Administrator is responsible for ad-
ministering estates of decedents who die with assets when there are next
of kin but the next of kin refuse to claim the body or the assets. The Public
Administrator has been appointed by court order of the circuit court,
probate division, for the purpose of protscting and conserving "the proper-
ty of decedents in Sarasota County who die alone and without next of kin
or other duly qualified representative. available to attend to the
decedents' affairs and conserve his or her property."IB (e...)
Queslions relating to the interpretation of the court order should be
referred to the court rendering the order rsther than to this office. However,
in those instances where the next of kin refuse. to claim the body or assets of
the decedent, there would not appear to be next orkin "avail~le to attend to
the decedents' affairs and conserve his or her property."
AGO 91-34-May 14. 1991
CONSULTANTS' COMPETITIVE NEGOTIATION ACT-
FLORIDA SMALL CITIES COMMUNITY DEVELOPMENT
BLOCKGRANTPROG~
MUNICIPALITIES-DEPARTMENT OF COMMUNITY
AFFAIRS-DEPARTMENT OF COMMERCE
COMPLIANCE WITH CONSULTANTS' COMPETITIVE
NEGOTIATION Acr BY MUNICIPALITIES PROCURING
PROFESSIONAL SERVICES UNDER FLORIDA SMALL CITY
COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM Acr
To: Mr. Daniel S. Brim, Attorney for Town of Callahan
QUESTION:
Whether a municipality must comply with the
provisions of the, Consultants' Competitive Negotiation
A,:t in procuring professional services to accomplish the
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Order" In re:The Appointmentofa PubJicAdminiBtratorfor Sarasota County, (12th Jud. Cir.
Fla.. daloo October 23, 1984).
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91-34 ANNUAL REPORT OF THE ATTORNEY GENERAL
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purposes tor which a grant has been received pursuant to
... 290.0401-290.049, F.S. (1990 Supp.)?l
SUMMARY:
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A municipality must comply with the requirements of
the Consultants' Competitive Ne,otiation Act in ac.
,complishin, the purposes for which it receives grant
runds under the Florida Small Cities Community
Development Block Grant Program Fund.
It appears that the Town of Callahan has received a Florida Small Cities
Community Development B]ock Grant from the Department of
Community Affairs pursuant to ss. 290.0401-290.049, F.S. (1990 Supp.).
Your question is whether the city must comply with the provisions of the
Consultants' Competitive Negotiation Act in accomplishing the purposes
for which this grant has been received. More specifically, you ask whether
the city may consider the fees charged by certain professionals or firms in
making its choice of a qualified engineering firm to provide services on
this project.
The F]orida Small Cities Community Deve]opment B]ock Grant
Program Fund was created to provide moneys to eligib]e local govern-
ments2 for urban redevelopment. The Department of Community Affairs
is charged with distributing these funds as grants to eligib]e ]ocal
governments on the basis of a competitive selection process.3 The following
program categories are established for achieving the broad community
development objectives to be achieved by the program: (a) housing; (b)
economic development; (c) neighborhood revitalization; and (d) commercial
revitalization.4 The department is authorized to 1a]dopt and enforce rules not
inconsistent with 88. 290.0401-290.049 for the administration of the fund.,,5
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As o.iginally presented, your question deals with procurement procedures orthe Department
of Community Affairs. This office has no authority to comment on or con.troe luch policies. I
have n!phrased your question in terms of state statutory issues which this office may comment
upon.
Iftht:!8e procurement policies are embodied in administrative rules, you may wish to request
an intm"pretation from the Department of Community Affairs under 8. 120.565, F .S., which
provides for declaratory statements by agencies. However, aft.erdiscUBBing this matter with the
department it is, my undel"Standing that these <<procurement policies- are merely helpful
suggestions from the department on how to proceed and that you have been advised that you
may disregard such suggestions.
.
Section 290.042(5), F.S. (1990 Supp.), detines "[e]ligible local government- as "any local
government which qualities as eligihle to participate in the Florida Small Cities Community
Development Block Grant Program in accordance with s. 102(a)(7)ofTitle I of the Housing and
Community Development Act of1974, as amended, and applicable federal regulations, and any
eligibility requirements which may be imposed by this act or by department role."
3
Secti',n290.044(2), F.S. (1990 Supp.).
.
Sectj"n 290.044(3), F.S. (1990 Supp.).
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Secti"n 290.048(3), F.S. (1990 Supp.).
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ANNUAL REPORT OF THE ATI'ORNEY GENERAL
91-34
Administrative rules have been promulgated for the economic develop-
ment program category and are contained in Ch. 8-16, F .A.C. These rules
specifically provide that recipient local governments shall follow "relevant
Stste laws applicable to the procurement of supplies, equipment, construc-
tion and services. as well as specified federal procurement standards.s
Th,~ rules authorize recipients to contract with any person, association or
corporation in accomplishing economic development activities, but all
suc:h contracts must be made in conformance with the procurement
standards related above? Finally, the rules stats that:
Designations and contractual arrangements as authorized under
this section shall in no way relieve the unit oflocal government
receiving funds under this chapter ofits responsibilities in assur-
ing that the [Community Development Block Grant] program is
administered in accordance with all State and Federal
requirements.8
It is clear that the purposes of the Florida Small Cities Community
Development Block Grant Program must be accomplished in compliance
with all applicable State regulations.
The Consultants' Competitive Negotiation Act, s. 287.055, F.S. (1990
Su.pp.), sets forth requirements for procuring and contracting for profes-
sional architectural, engineering, landsc~e architectural, or land survey-
ing services.9 Under the act, an agency,1 including a municipality, must
competitively select and negotiate with the most qualified firm to provide
these professional services for a project,u
Pursuant to s. 287.055(4), F.S. (1990 Supp.), an agency must evaluate
firms which offer to provide professional services for a proposed project
and to select no fewer than three firms which are deemed to be the most
highly qualified to perform the required services,12 The statute provides
criteria for evaluating the qualifications of such firm:
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
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Rule 8-16.017(6), F.A.G.
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Rule 8-16.017(2Xb), F.A.G.
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Rule 8-16.ol7(2Xd), F.A.G.
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See, s. 287.055(2Xa), F.S. (1990 Supp.), defining '[pJrofessional services.'
10
Section287 .055(2 Xb), F.s. (1990 Supp.), defines '[algency" to mean 'the stateor a state agency,
municipality, or political subdivision. a school district or a school board."
11
Section 287.055(4) and (5), F.S. (1990 Supp.).
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See, s. 287.055(4Xc), F.S. (1990 Supp.), for exceptions to application of the statute.
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{1l-34
ANNUAL REPORT OF THE ATTORNEY GENERAL
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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).13 (e.s.)
While it is clear that proposals for compensation are only to be con-
sidered after the selection ofthe three or more most qualified firms,l. the
statute specifically authorizes an agency to use "willingness to meet. .. budget
requirements" as an element of consideration in choosing these firms.
Prior to the enactment of the amendatory language emphasized above,
the First District Court of Appeal considered a city ordinance authorizing
the use offee quotations during the competitive selection phase of acquisi-
tion of~ofessional services. In City of Jacksonville v. Reynolds, Smith &
Hills,! the court concluded that such an ordinance did not damage the
process established by the Consultants' Competitive Negotiations Act.
Further, the court stated that "[ w]e see no harm done if a City legislatively
finds that early consideration offees is in its best interests."16
However, subsequent to the Reynolds, Smith & Hills decision, s.
287.055(4Xb), F.S., was amended as cited above to include a prohibition
against using proposals for compensatio9 except during the competitive
negotiations stage under subsection (5).1
Thus, in light of the Legislature's express amendment of s.
287.055(4Xb), F.S., following the Reynolds, Smith & Hills case, a city may
cl~nsider budget requirements in determining the firms qualified to pro-
vide professional services pursuant to s. 287.055, F.S. (1990 Supp.), but is
prohibited from using proposals for compensation to be paid under the
contract except during the competitive negotiation phase of the Consultants'
Competitive Negotiation Act.
The administrative rules promulgated pursuant to the Florida Small
Cities Community Development Block Grant Program, ss. 290.0401-
290.049, F.S. (1990 Supp.), specifically require compliance with all ap-
plicable state rules and regulations and the Consultants' Competitive
Negotiation Act is such a state regulation.
Therefore, the statutory requirements in the Consultants' Competitive
Negotiation Act apply to professional services procured for projects using
funds from a Florida Small Cities Community Development Block Grant.
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See, s. 287.055(.Xb), F.S. (1990 Supp.)
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J\nd 8ee, AGO 88-42 (stating that a school board is prohibited from establishing a fee schedule
88 the basis for compensati ng architects retained to provide architectural services tathe board).
1.
424 So.2d 63 (1 D.C.A. Fla., 1982), pet. (or rev. den., 433 So.2d 519(Fla. 1963).
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Id. at 64.
17
See, 8. I, Ch. 88.108, Laws orF1orida.
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