FLASLA June 2015 Monthly Report

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Special Session - Budget

The Legislature began its Special Session to pass a budget last week. The federal government has agreed to a $1 billion continuation of the Low Income Pool (LIP) Program, which is half of the requested $2 billion. Additionally, the Florida House defeated the Senate Florida Health Insurance Affordability Exchange (FHIX) yesterday. Both issues affected budget allocations which were released late last week. Conference Committees have concluded their meetings, and unresolved issues are being considered by the Appropriations Chairs. The Special Session is scheduled to run through June 20.

The implementation of Amendment 1, a Constitutional Amendment approved by Florida voters that requires the Legislature to spend 1/3 of documentary stamp taxes on environmental programs, remains controversial and unresolved. Issues such as agency funding and debt service have limited the amount of environmental funding available. There is disagreement over whether to issue new bonds for certain environmental programs. Additionally, environmental groups have advocated for the purchase of lands south of Lake Okeechobee. Many Legislators are opposed to this because they believe there are less costly, more effective strategies for Everglades restoration and that this will not solve problems with flooding and water quality. The South Florida Water Management District recently voted against exercising an option to purchase 46,000 acres of land owned by U.S. Sugar.

CCNA
Jonathan Haigh and I participated in a call this week with other design professional associations to discuss the Consultants Competitive Negotiation Act (CCNA). The American Water Works Association (AWWA) would like to open up the CCNA next session to raise the caps for continuing contracts from $2 million to $5 million for each individual project and from $250,000 to $500,000 for studies. They alternatively would propose to provide language on work of a specified nature that would apply only to water infrastructure (see letter and white paper from AWWA at the end of this report). The other groups on the call indicated that they would oppose this second option but that their groups have not yet taken positions on the first option. Most reported that they have members on both sides of this issue.

FICE indicated that there were other CCNA issues which they would like to discuss working on with other design professionals. Additionally, FES noted that Miami-Dade County would like to address situations where there is only one applicant, and some would like to designate the P3 statutes an alternative to the CCNA. I reminded the group that the geologists would also like to add themselves to the CCNA. Since there are a number of outstanding CCNA issues, and it appears that other groups will open up the CCNA even if we do not, the group consensus was that it would be better for the various design professionals to work together on a bill so that we can take the lead, rather than trying to fix someone else’s legislation from the outside.

To this end, the design professionals have created a working group that will be meeting every few weeks via conference call. Jonathan and I will continue to represent FLASLA on these calls and will keep the GAC and Executive Committee informed as the group identifies issues. We will seek feedback on issues and report FLASLA’s position to the other design professional associations as the calls continue.

RE: Proposed Amendments to the Consultants Competitive Negotiation Act (CCNA)

Mr. Temple,

On behalf of the Utility Councils of the Florida Chapter of the American Water Works Association (AWWAUC) and the Florida Water Environment Association (FWEAUC), we are contacting you to respectfully request your support for the proposed amendments to the definition of "continuing construction contract" (s. 287.055(g), F.S.) within the CCNA, increasing the dollar amounts of construction costs and studies that fall within the definition. Both the AWWAUC and FWEAUC support the increases and have worked with FICE President-elect Tim Brodeur as we developed the proposed changes to keep FICE informed as we debated the level of increases to pursue. Pursuant to conversations with Committee and Member staff in Tallahassee, a letter of support from FICE regarding the proposed changes would be greatly appreciated and aid in the passage of the proposed amendment. The specific changes to the definition are straightforward:

Section 287.055(g), Florida Statutes, is hereby amended to read:

(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 $25 million, for study activity if the fee for professional services for each individual study under the contract does not exceed $2500,000, 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.

Our proposed talking points regarding the need for the changes are:

* The AWWA and FWEA Utility Councils strongly support the Qualifications Based Selection Process for professional services contained in the CCNA.

* As utilities develop project management processes for the implementation of their Capital Improvement Plans, many include construction projects and studies in excess of the respective $2 million and $200,000 thresholds.

* The requirement to undertake the competitive procedures of the CCNA for every construction project in excess of $2 million and every associated study in excess of $200,000 delays the ability of a utility to efficiently and effectively roll out projects for bid, resulting in the expenditure of additional resources and administrative costs to undertake the competitive procedures of the CCNA, delays in getting projects to the street, and negative impacts on those consultants that rely on utilities for consistent work.

* SUPPORT language amending the CCNA to raise the allowable dollar thresholds under the CCNA to allow for continuing contracts for professional services of a specified nature as outlined in a contract.

We greatly appreciate FICE’s support of the above proposed language and look forward to working cooperatively with FICE on other issues that can benefit our respective organizations in the future. If you have any questions, please do not hesitate to contact us at the numbers and email addresses provided below. Please transmit the above mentioned letter to our respective emails.

Sincerely,

Brian Wheeler, PE Rob Teegarden, PE
Chair Chair
FWEA Utility Council AWWA Utility Council
Executive Director Vice President
Toho Water Authority Water Policy, Planning and Permitting
951 Martin Luther King Blvd. Orlando Utilities Commission
Kissimmee, FL 34741 Orlando, FL
407-944-5131 407-434-2570
bwheeler@tohowater.com rteegarden@ouc.com

cc: Frank Bernardino, Anfield Consulting
David Childs, Hopping, Green and Sams

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FSAWWA Utility Council Issue Paper

TITLE: Consultants Competitive Negotiation Act (CCNA)

ISSUE SUMMARY: Section 287.055, Florida Statutes, requires state government agencies, municipalities or political subdivisions, school boards and school districts, to select a consulting firm based on qualifications rather than on a "lowest bid" basis. The CCNA allows "continuing contracts," defined as contracts for professional services entered into in accordance with all the procedures of the CCNA whereby the firm provides professional services for which the estimated construction cost of each individual project under the contract does not exceed $2 million, 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.

On December 18, 2013, the Attorney General’s Office issued an advisory opinion (AGO 2013-28) in response to a question asking whether an entity was compliant with the CCNA if it awarded a contract for continuing services for professional services of a specified nature even if the estimated cost of an individual construction project exceeds $2 million. The AGO found that the entity would not be in compliance with the CCNA. In support, the AGO examined the legislative history of the CCNA, finding that "the Legislature intended, by amending the CCNA in 1988, to include monetary limitations on ‘continuing contracts’ in cases involving construction projects and to extend those monetary limitations to such ‘continuing contracts’ within the scope of the Act." The AGO then found that a continuing contract for "professional services of a specified nature as outlined in the contract" and containing individual construction projects in excess of the $2 million would be outside the scope of the "continuing contract" exception of the CCNA and would be subject to the other competitive procedures of the Act.

IMPACT TO FSAWWA MEMBERS: As utilities develop project management processes for the implementation of their CIPs, many project groups will include construction projects in excess of the $2 million threshold. The accompanying requirement to undertake the competitive procedures of the CCNA for every project group can delay the ability of a utility to efficiently and effectively roll out projects for bid. This will result in the expenditure of additional resources and administrative costs by local governments and consultants to undertake the competitive procedures of the CCNA, delays in getting projects to the street, and negative fiscal impacts on those consultants that rely on local governments for consistent work.

LEGISLATIVE COMMITTEE POSITION: SUPPORT language amending the CCNA to raise the allowable thresholds for dollar thresholds under the CCNA or to allow for higher dollar thresholds for water, wastewater and reclaimed water projects.

CURRENT BILL STATUS: Not filed

OPTION A:

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)-(f) No change.

(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 $25 million, for study activity if the fee for professional services for each individual study under the contract does not exceed $2500,000, 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.

(h)-(l) No change.

(3)-(11) No change.

OPTION B:

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)-(f) No change.

(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, except that, for contracts regarding water resource development, water supply, alternative water supply, and wastewater projects, the estimated construction cost of each individual project under the contract shall not exceed $5 million and the fee for professional services for each individual study under the contract shall not exceed $500,000. Firms providing professional services under continuing contracts shall not be required to bid against one another.

(h)-(l) No change.

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