Florida/Georgia Personal Injury & Workers Compensation

...Although Robert & Co., Edwards, and Wechsler were decided more than half a century ago, they represent our most recent statements on this subject. Since then, we have neither confirmed nor questioned their general rule. Twenty-five years after Robert & Co., the Legislature enacted a law—section 287.055, Florida Statutes—that would have affected that case....

...Known as the "Consultants' Competitive Negotiation Act," the statute criminalizes the payment of a contingency fee for soliciting or securing a contract with a public agency regarding architecture, engineering, landscape architecture, surveying, or mapping. See § 287.055(6), Fla....

...The repercussions for the real estate sales industry from a holding that such contracts suddenly violate public policy as applied to purchases (and, by extension, sales) by government agencies would be unpredictable. Regardless of the differences between real estate brokerage agreements and those mentioned in section 287.055, the fact remains that the Legislature limited the scope of that statute and, for whatever reason, chose not to include real estate brokerage (and a great many other types of contracts) within its coverage....

...Cauley, 666 So.2d 898, 900 (Fla.1996)). We also have recognized as a "general rule ... that statutes in derogation of the common law are strictly construed." BellSouth Telecomm., Inc. v. Meeks, 863 So.2d 287, 290 (Fla.2003). Consistent with these principles, we conclude that section 287.055 applies only to the specific contracts it mentions and is irrelevant here....

...73-19, Laws of Fla. But this statement is less expansive than it appears, because the statute expressly defines the term "professional service contracts" to include only contracts involving architecture, engineering, landscape architecture, surveying, or mapping. § 287.055(2)(a), Fla....

...ource recovery facility. The complaint alleged that in awarding the contract to Waste Management, Inc., the city had violated the competitive bidding requirements of its own municipal ordinance as well as the Consultants Competitive Negotiation Act, section 287.055, Florida Statutes (1981), and the Sunshine Law, section 286.011, Florida Statutes (1981)....

...This review will include all documentation necessary to establish the legitimacy of the applicants' firm. Only those businesses certified by Hillsborough County, by the time of bid opening, will be counted toward goal attainment. e. The County will provide contracting opportunities for professional services pursuant to Section 287.055 Florida Statutes, known as the "Consultant's Competitive Negotiation Act" as well as other professional services solicited through the competitive bid or Request for Proposal process....

...This cause is before us on appeal from a trial court order permanently enjoining appellant, the City of Lynn Haven, Florida (the City), from awarding a construction contract and expending public funds for the project until the City has complied with Section 287.055, Florida Statutes....

...The issues *1245 on appeal are: (1) whether the appellee, Bay County Council of Registered Architects, Inc., a nonprofit corporation, has standing to challenge the process by which the City competitively bid the public safety building construction project; and (2) whether the City has to comply with the requirements of Section 287.055, Florida Statutes, before entering into a construction contract requiring architectural services....

...contractor's right to payment, and general representation as agent of the project owner. Appellee filed a complaint against the City seeking temporary and permanent injunctive relief. The complaint alleged that the City was attempting to circumvent Section 287.055, Florida Statutes, the Consultant's Competitive Negotiation Act (CCNA), by allowing the contractor with the low bid to select and hire an architect to prepare, sign, and seal the architectural drawings and direct the project....

...for the construction of the public safety building project until such time as: a) The Defendant publicly announces in a uniform and consistent manner that architectural services are required for the public safety construction project as required by Section 287.055(3); and b) The Defendant competitively selects in order of preference no fewer than three architectural firms deemed to be the most highly qualified to perform architectural services for the public safety building construction project in accord with Section 287.055(4); and c) The Defendant negotiates a contract with the most qualified architectural firm at a compensation which the Defendant determines to be fair, competitive, and reasonable in accord with Section 287.055(5)....

...We agree with appellee that the City's procedures contravene legislative intent and undermines the effectiveness of the CCNA. Specifically, the City's bidding procedure will not effectuate an equitable distribution of contracts among the most qualified firms pursuant to Section 287.055(4), Florida Statutes. Neither does it assure that the architectural fees which the City pays indirectly are fair, competitive, or reasonable pursuant to Section 287.055(5), Florida Statutes. The plain language of the CCNA requires the agency to "publicly announce, in a uniform and consistent manner, each occasion when professional services are required to be purchased for a project." § 287.055(3)(a), Fla....

...r a construction project. The first district held that the architects' corporation had standing to challenge the process by which the City secured architectural services for the construction project. The bidding process used by the City circumvented section 287.055, Florida Statutes (1987), the Consultant's Competitive Negotiation Act, by allowing the contractor with the low bid to select and hire an architect; the City's interpretation of the statute denied the corporation's members potential p...

...A contract to give any agent compensation dependent upon his success in procuring such funding should likewise be declared invalid as being contrary to acknowledged public policy. The Florida Legislature explicitly recognized the danger of contingent fee contracts in the "Consultants' Competitive Negotiation Act", Fla. Stat. § 287.055....

...ing into a contract with a municipality must warrant that he has not retained a consultant to secure the contract and that he has not agreed to pay the consultant a fee contingent upon or resulting from the award pursuant to the contract. Fla. Stat. § 287.055(6)....

...[2] This in turn means that the School Board is not covered by subsection 120.53(5), Florida Statutes, and relief under that subsection was correctly denied. We find no merit in appellants' remaining arguments on appeal. Affirmed. NOTES [1] The School Board concedes that it is covered by section 287.055, Florida Statutes, which regulates the purchase of certain professional services, because by its express terms, section 287.055 applies to school boards. See id. § 287.055(2)(b)....

...An agency may engage in competitive negotiation to obtain certain professional services at "fair, competitive, and reasonable" compensation by negotiating separately with the three best qualified firms commencing with the most qualified and proceeding in the order of qualification to the other two firms. § 287.055, Fla....

...(1979); The Code of the City of Miami, Florida (Code 1967, § 18-77.2). The statutory and code definitions of professional services to which competitive negotiation applies are architecture, professional engineering, landscape architecture, and registered land surveying. § 287.055(2)(a), Fla....

accordance with the applicable county ordinance. Section 287.055, Florida Statutes, the Consultants' Competitive

...Marko: You have asked substantially the following question: May the School Board of Broward County select architects to render professional services on projects based on a predetermined maximum fee schedule established by the school board rather than the provisions of s. 287.055 , F.S.? In sum: An agency may consider factors in addition to those prescribed in s. 287.055 , F.S., for the purchase of professional services, but may not establish an alternate procedure which conflicts with the requirements of s. 287.055 , F.S....

...the school board. The staff also held meetings with the representatives of the Broward County Chapter of the American Institute of Architects to discuss the development of a fee structure. You state that when a project is planned which is subject to s. 287.055 , F.S., the School Board of Broward County selects an architect utilizing the procedures found in school board policy 6GX6-7003 (no details of which have been provided) and then offers that architect a fee for performing the work in accordance with the established fee schedule. If the selected architect does not accept the scheduled fee for the project, the board offers such fee to the second most qualified architect. The Consultant's Competitive Negotiation Act, s. 287.055 , F.S., as amended by Ch. 88-108, Laws of Florida, sets forth requirements for procuring and contracting for certain professional services, including those of architects. 1 Section 287.055 (3), F.S., operates to require an agency such as the school board to follow certain procedures for announcing occasions when professional services are required to be purchased and for certifying firms or individuals desiring to provid...

...rects agencies to adopt administrative procedures for the evaluation of professional services. 2 An agency is required to publicly announce each occasion when professional services are required to be purchased for a project covered by the statute. 3 Section 287.055 (4), F.S., as amended, supra, states that 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....

...firm. 7 This procedure is followed until an agreement is reached. 8 A process such as that utilized by the Broward County School Board which establishes a fee for proposed professional services prior to the initiation of the other steps required by s. 287.055 , F.S., i.e., public announcement, evaluation of current statements or qualifications and performance data for interested firms, and agency selection of the three or more most highly qualified firms, would not comply with the requirements of s. 287.055 , F.S., which mandates a project-by-project selection and negotiation process....

...12 However, I am not aware of nor have you brought to my attention any authority which would allow the elevation of that factor to become the primary element for consideration in selecting and acquiring professional services by the agencies subject to s. 287.055 , F.S. Thus, it is my opinion that the School Board of Broward County is not authorized to establish a set fee schedule for procuring professional services in advance of conducting competitive selection and negotiation pursuant to s. 287.055 (4) and (5), F.S. Sincerely, Robert A. Butterworth Attorney General 1 See, s. 287.055 (2)(a), F.S., defining "[p]rofessional services" to include architectural services. 2 See also, s. 287.055 (2)(a) and (b), F.S., respectively defining "[p]rofessional services" to include architectural services and defining "[a]gency" to include a school district or school board for purposes of s. 287.055 , F.S. 3 Section 287.055 (3), F.S. 4 See, s. 287.055 (4)(c), F.S., for exceptions to application of the statute. 5 Section 1, Ch. 88-108, Laws of Florida. And see, s. 2, Ch. 88-108, Laws of Florida, providing that the effective date of the act was July 1, 1988. 6 Section 287.055 (5)(a), F.S. 7 Section 287.055 (5)(b), F.S. 8 Section 287.055 (5)(c), F.S. 9 See, Alsop v. Pierce, 19 So.2d 799 , 805 (Fla. 1944) ("When the Legislature has prescribed the mode, that mode must be observed.") 10 424 So.2d 63 , 64 (1 D.C.A.Fla., 1982). 11 Section 287.055 (5)(b), F.S....

...BS-217, 13 FLW 1683 (1 D.C.A.Fla., July 19, 1988). In that case the City of Lynn Haven proposed to construct a new public safety building. The city published notice to contractors inviting bids for construction of the building. The appellee complained that the city was attempting to circumvent s. 287.055 , F.S., by allowing the contractor with the low bid to select and hire an architect to prepare, sign, and seal the architectural drawings and direct the project....

...ultant's Competitive Negotiation Act and undermined the effectiveness of the act. The court stated that the bidding procedure utilized by the city "will not effectuate an equitable distribution of contracts among the most qualified firms pursuant to Section 287.055 (4), Florida Statutes." Further, the court noted that the city's method did not "assure that the architectural fees which the City pays indirectly are fair, competitive, or reasonable....

for professional services as set forth in section 287.055, Florida Statutes (1995). This office has determined

open to the same discretion discussed above. Section 287.055, Florida Statutes, specifically applicable

sections 255.20 and 287.055, Florida Statutes (section 287.055 is known as the CCNA or the Consultants Competitive

pursuant to its procurement procedure and section 287.055, Florida Statutes, whereby the vendor contracts

qualify as a "continuing contract" pursuant to section 287.055(2)(g), Florida Statutes, the "Consultants'

by which the completed project is judged.4 Section 287.055, F.S., the "Consultants' Competitive Negotiation

...: 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....

...o 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....

), defining "[p]rofessional services." 10 Section 287.055(2)(b), F.S. (1990 Supp.), defines "[a]gency"

...Bull brought suit against the City of Atlantic Beach alleging that he, as a taxpayer, was being damaged by the City's contract with Walter J. Parks for Parks' architectural and engineering services. Bull contended Parks' employment violated the Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes (1981)....

subdivision, a school district or a school board." Section 287.055(2)(b), F.S. As noted in AGO 074-308, the CCNA

essentially the same as originally enacted. Section 287.055(2)(b), F.S., defines `agency' to mean `the

QUESTION: Does an "independent special district" such as the West Orange Memorial Hospital Tax District, come under the requirements and prohibitions of s. 287.055 , F.S.? SUMMARY: An independent special district is deemed to be a political subdivision of the state for the purposes of the Consultants Competitive Negotiation Act under the definition of the term "political subdivision" in s. 1.01 (9), F.S., and as those words are used in the context of s. 287.055 , F.S....

...Thus, the requirements and inhibitions of the Consultants Competitive Negotiation Act apply to such independent special district as a political subdivision in this state. Chapter 73-19, Laws of Florida, the Consultants Competitive Negotiation Act [s. 287.055 , F.S.], relates to and establishes policies and procedures for the contracting of professional services by the state or its agencies. The term "agency" is defined to mean "the state, its agencies, municipalities or political subdivisions, school districts and school boards." Section 287.055 (2)(b)....

...supplied.) Section 1.01 (9), F.S. A hospital taxing district, whether "independent" and "dependent" (as defined in s. 218.31 (6) and (7), F.S., added by s. 2 of Ch. 73-349, Laws of Florida), is a "district" under the above definition, the context of s. 287.055 not being contradictory. Since a hospital district in these circumstances is deemed to be a political subdivision of the state for purposes of s. 287.055 , the requirements of that law apply to such hospital districts as a political subdivision. It follows that an independent special district comes under the requirements and prohibitions of s. 287.055 .

contracts among qualified firms, . . . ." Section 287.055(4)(b), F.S. As noted above, the CCNA requires

of the Bro-ward County Procurement Code and section 287.055, Florida Statutes (1995), the “Consultants’

...Brock: You have asked for my opinion on substantially the following questions: 1. 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 by Collier County 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....

...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 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....

...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 VII.B.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 by said statute....

...surveying and planning activities." 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 and construction of a multi-phase project and each phase of the project was separately negotiated 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...

...ement 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....

...may not be subject to the same project-by-project consideration that the CCNA otherwise requires. On the contrary, "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...

...The Legislature has specifically provided that "[f]irms 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....

...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....

...es" 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....

...covered professional services. 15 Subsequent to issuance of this opinion, Ch. 2007-159 , Laws of 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....

require professional services as set forth in section 287.055, Florida Statutes, the Consultants' Competitive

contracting for certain professional services. Section 287.055(3), F.S., operates to require an agency to

QUESTIONS: 1. Are municipalities and other nonstate agencies subject to the requirements of s. 287.055 (3)(a) or (4), F. S.? 2. If so, is a program of continuous inspections, investigations, examinations, and analyses of a municipal water and sewer service system under a continuing contract a "project" as defined by s. 287.055 (2)(f), F. S., and thus subject to the requirements of s. 287.055 (3)(a) and (4), F. S.? SUMMARY: Municipalities and other nonstate agencies are still subject to the notice requirements and the competitive selection and negotiation requirements of the CCNA (s. 287.055 , F....

...e local governmental units designated in the act. A program of continuous inspections, investigations, examinations, and analyses of a municipal water and sewer service system under a continuing contract could be construed as a study activity within s. 287.055 (3)(a), F....

...S., and subject to the act if it involves professional fees of more than $5,000 and provides for other than general advice and assistance, but that is a factual question to be determined by the governing body of the municipality or other governmental agency. Section 287.055 , F....

...ect at the most reasonable compensation." Attorney General Opinions 074-191 and 075-86. Since 1973, the CCNA has defined "agency" to include the state or a state agency; a municipality or political subdivision; and a school district or school board. Section 287.055 (2)(b), F....

...tlay study or planning activity described in the public notice of the state or a state agency pursuant to paragraph (3)(a). An agency shall prescribe by administrative rule procedures for the determination of a project under its jurisdiction. . . . [Section 287.055 (2)(f), F. S.; emphasis supplied.] Section 287.055 (3)(a), F....

...(Emphasis supplied.) The material which I have italicized is added to the subsection as a result of the 1975 amendments (s. 2, Ch. 75-281). Since the definition of the word "project" refers to the activity described in the public notice required by s. 287.055 (3)(a), F. S., it is not permissible to rely solely upon the disembodied language of the first sentence of s. 287.055 (2)(f), F....

...ies in language would be created and where the major purpose of the statute would be destroyed. Lawson v. Suwannee Fruit Steamship Company, 336 U.S. 198 (1949). I further note that the title of Ch. 75-281, Laws of Florida, describes the amendment to s. 287.055 (3)(a), F....

...hat legislative intent. Curry v. Lehman, 47 So. 18 (Fla. 1908); State ex rel. Church v. Yeats, 77 So. 262 (Fla. 1917). The function of the title is to define the scope of the act. County of Hillsborough v. Price, 149 So.2d 912 (2 D.C.A. Fla., 1963). Section 287.055 (3)(a), as amended by Ch. 75-281, still requires that each agency (as defined by s. 287.055 (2)(b), F. S.) publicly announce each occasion when professional services (as defined by s. 287.055 (2)(a), F. S.) are required for a project (as determined by each agency having jurisdiction, s. 287.055 (2)(f), F....

...S.) when the cost of that project exceeds the prescribed amounts. Therefore, any implied limitation of the notice requirement, restricting it to only those projects contemplated by the state or state agencies, which appears in the first sentence of s. 287.055 (2)(f) contradicts the existing law (s. 287.055 [3][a]), as well as the second sentence of s. 287.055 (2)(f), both of which were added to or amended by Ch....

...State ex rel. Housing Authority of Plant City v. Kirk, 231 So.2d 522 (Fla. 1970), I can see no fashion in which the statute can be read as a cohesive whole, given the intent previously described (AGO's 073- 216, 074-191, 075-56, and 075-86), and yet construe s. 287.055 (2)(f), F....

...he competitive negotiation of contracts by consultants for certain professional services by designated local governments is clearly the overriding purpose of the act and therefore controls. This purpose is in no way affected by the first sentence of s. 287.055 (2)(f), which cannot be construed to defeat the overriding purpose of the act. Municipalities and nonstate agencies are subject to the Consultants' Competitive Negotiation Act (s. 287.055 , F....

...Your first question is answered in the affirmative. As to your second question, a program of continuous inspection, investigations, examinations, and analyses of a municipal water and sewer system, under a continuing contract, might be construed as a study activity within s. 287.055 (3)(a), F....

...engineering contract for a particular `project' should be negotiated in compliance with the CCNA requirements." Anything further than general advice probably falls within the intent of the CCNA, as has been previously expressed. I note further that s. 287.055 (2)(f)1....

therein when acquiring professional services. Section 287.055(2)(a) defines "professional services" as:

obtained during the negotiation phase pursuant to section 287.055, Florida Statutes? Chapter 1013, Florida Statutes

competitive advertisements and negotiations? In sum: Section 287.055(2)(g), Florida Statutes, authorizes an exemption

...This cause is before us on appeal from the final order of the trial court dismissing with prejudice a third amended complaint seeking to enjoin the City from contracting for architectural and engineering services without competitive bidding, actions allegedly in violation of the City charter and ordinances as well as Section 287.055, Florida Statutes, and Article VIII, Section 2(b), Florida Constitution....

...While a school board may give more weight to certain individual criteria than to others, a school board may not act arbitrarily or capriciously by giving undue weight to a particular attribute. Question One School boards are given specific authority to use the procedures in section 287.055 , Florida Statutes, to select a construction management entity to oversee the construction of new facilities or major additions to existing ones....

...Moreover, the criteria for selecting the construction management entity cannot unfairly penalize an entity that has relevant experience in the delivery of construction projects of similar size and complexity by methods of delivery other than construction management. 3 Section 287.055 , Florida Statutes, the "Consultants' Competitive Negotiation Act," provides a procedure for the acquisition of professional services....

...bution does not violate the principle of selection of the most highly qualified firms." 7 An agency may request and consider proposals for the compensation to be paid under the contract only during the competitive negotiation phase of the process. 8 Section 287.055 (5)(a), Florida Statutes, states: "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....

...ty to evaluate potential contractors based upon factors pertinent to the requirements of a particular project. While "knowledge of local conditions" is not specifically prescribed as a consideration in awarding a professional services contract under section 287.055 , Florida Statutes, it would appear to fall within the "capabilities" and "experience" of potential contractors and could readily be characterized as a factor applicable to the school board's particular requirements....

...pt a policy of home town preference in awarding purchasing and professional services contracts. Noting that the Legislature recognizes that school board policies may encompass local preference in selecting vendors and that the selection procedure in section 287.055 , Florida Statutes, includes consideration of the location of the firm in assigning it a rank, this office concluded that a district school board could adopt a policy giving preference to bidders from its home county to the extent suc...

...ess contemplated for such contracts. Similarly, a school board may include "knowledge of local conditions" as a factor in considering the qualifications of a contractor, so long as its use is consistent with the procedure for selection prescribed in section 287.055 , Florida Statutes....

...235.211(1)(c), Fla. Stat. See also, s. 235.211(4), Fla. Stat., providing that, except as otherwise provided in this section, the negotiation procedures applicable to construction management contracts and the design-build process must conform to the requirements of s. 287.055 , Fla. Stat. 2 Section 235.211(1)(c), Fla. Stat. 3 Id . 4 Section 287.055 (3)(a), Fla. Stat. (an exception to this requirement is provided in cases of a valid public emergency certified by the agency head). See , s. 287.017 (1)(e), Fla. Stat. 5 Section 287.055 (3)(c), Fla. Stat. 6 Section 287.055 (4)(a), Fla. Stat. 7 Section 287.055 (4)(b), Fla. Stat. 8 Id . 9 See , s. 287.055 (5)(b) and (c), Fla....

...and Senate Staff Analysis and Economic Impact Statement, CS/CS/SB 2684, April 18, 1995. 11 See, Culpepper v. Moore, 40 So.2d 366 (1949) (no mandatory obligation is imposed on a school board to consider the lowest dollars and cents bid as being the "lowest responsible bid," to the exclusion of other pertinent factors). 12 Section 287.055 (3)(c), Fla. Stat. 13 See, s. 287.055 (3)(d), Fla....

On behalf of the City of Deltona, you have asked for my opinion on substantially the following question: When a municipality contracts for professional services pursuant to section 287.055 , Florida Statutes, is the transaction controlled by the amount in section 287.055 (2)(g), Florida Statutes, relating to continuing contracts, or by section 287.055 (3)(a)(1), Florida Statutes, requiring public announcement and providing qualification procedures for certain threshold amounts? According to your letter, the City of Deltona is in the process of contracting with multiple professional services providers and would like to establish a contractual hourly fee schedule agreement for these professional services as various projects are identified throughout the year. You have asked whether there is a conflict between two provisions of section 287.055 , Florida Statutes, subsections (2)(g) and (3)(a)(1). The Consultants' Competitive Negotiation Act (CCNA), section 287.055 , Florida Statutes, sets forth requirements for the procurement and contracting of professional architectural, engineering, landscape architectural, or land surveying services 1 by governmental agencies....

...2 Pursuant to the act, an agency, including a municipality, must competitively select and negotiate with the most qualified firm to provide these professional services for a project. 3 The statute also provides that "[n]othing in this act shall be construed to prohibit a continuing contract between a firm and an agency." 4 Section 287.055 (3), Florida Statutes, operates to require an agency, including a municipality, 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 procedures for the evaluation of professional services. 5 An agency is required to publicly announce each occasion when professional services are required to be purchased for a project covered by the statute. 6 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....

...irm. 10 This procedure is followed until an agreement is reached. 11 As this office noted in Attorney General's 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. 12 A "continuing contract" is defined in section 287.055 (2)(g), Florida Statutes, as: "[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 projec...

...vity when the fee for such professional service does not exceed $50,000, or for work of a specified nature as outlined in the contract required by the agency, with no time limitation except that the contract must provide a termination clause. . . ." Section 287.055 (2)(g), Florida Statutes, distinguishes: 1) projects in which construction costs do not exceed $1 million; 2) a study activity when the fee for such service does not exceed $50,000; or 3) work of a specified nature as provided in the contract with no time limitation except for a termination clause. The word "or" is generally construed in the disjunctive when it is used in a statute or rule and normally indicates that alternatives were intended. 13 Based on these considerations, Attorney General Opinion 96-52 concluded that section 287.055 (2)(g), Florida Statutes, authorizes an exemption from the competitive bidding and negotiation requirements of the act for either a study activity with a fee of up to $25,000 or for work of a specified nature with no time limitation....

...15 However, the opinion suggests that it may be advisable for a city to adopt an ordinance or develop an administrative rule of procedure to ensure that these criteria are applied uniformly to all continuing contracts into which the city enters. Nothing in section 287.055 , Florida Statutes, purports to regulate the terms of a continuing contract. 16 The continuing contract provision of section 287.055 , Florida Statutes, 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. 17 Therefore, it is my opinion that the competitive negotiation process and the process for continuing contracts represent separate and distinct aspects of the Consultants' Competitive Negotiation Act. The limits contained in section 287.055 (2)(g), Florida Statutes, relate to continuing contracts, as defined therein, and the monetary limits of section 287.055 (3)(a)(1), relate specifically to competitive negotiations conducted pursuant to subsection (5). These subsections of the CCNA do not conflict; rather the continuing contract provisions constitute an exception to the broader competitive negotiation procedures of the act. 1 See s. 287.055 (2)(a), Fla. Stat., defining "[p]rofessional services." 2 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." 3 Section 287.055 (4) and (5), Fla. Stat. 4 Section 287.055 (4)(d), Fla. Stat. 5 See s. 287.055 (2)(a) and (b), Fla. Stat., respectively defining "[p]rofessional services" and "[a]gency." 6 Section 287.055 (3), Fla. Stat. 7 See s. 287.055 (4)(c), Fla. Stat., setting forth exceptions to the application of the statute. 8 Section 287.055 (4)(c). 9 Section 287.055 (5)(a), Fla. Stat. 10 Section 287.055 (5)(b), Fla. Stat. 11 Section 287.055 (5)(c), Fla....

...2d DCA 1960) (where statute requires that public body award contracts to low bidder, proper municipal authorities have wide discretion in determination of lowest responsible bidder). 16 See Ops. Att'y Gen. Fla. 96-52 (1996) and 93-56 (1993) noting that nothing in s. 287.055 , Fla....

...1st DCA 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 have effectuated an equitable distribution of contracts among the most qualified firms pursuant to section 287.055 (4), Fla....

clarifies its intent regarding paragraph (4)(b) of section 287.055, Florida Statutes, the statute, read as a whole

...Casady Chairman Broward County Housing Authority Fort Lauderdale QUESTIONS: 1. Is the Broward County Housing Authority an agency as that term is defined in s. 287.012 (1), F. S., therefore making the State Purchasing Law applicable to it? 2. Is the Broward County Housing Authority an agency as that term is defined in s. 287.055 (2)(b), F....

...g authorities; and, therefore, they are not required to award other contracts or to purchase commodities through competitive bidding. AS TO QUESTION 1: The purchasing and competitive bidding requirements set forth in part I of Ch. 287, F. S. (except s. 287.055 , F....

...ed by the Division of Purchasing. See AGO 075-56. AS TO QUESTION 2: The Consultants' Competitive Negotiation Act (hereafter CCNA) applies to any agency (subject to the act) with the power or duty to contract for professional services as set forth in s. 287.055 , F....

....' Section 421.08 (2), (3), F. S. Clearly, therefore, a housing authority is authorized to contract for those professional services contemplated by the CCNA; the remaining consideration is whether a housing authority is an `agency' for purposes of the act. Section 287.055 (2), F....

...Attorney General Opinion 071-366. See also William A. Berbusse, Jr., Inc. v. North Broward Hospital District, 117 So.2d 550 (2 D.C.A. Fla., 1960) and AGO's 073-291 and 077-22. Accordingly, since the competitive bidding requirements of part I of Ch. 287, F. S. (except s. 287.055 , F....

...mpetition as is practicable under the circumstances.” Id. at § 2-256(5). Similarly, when the County procures architectural, engineering, and other professional services, section 2-256(6) of the Code requires the County to do so in compliance with section 287.055, Florida Statutes, which involves “competitive selection” and “competitive negotiation” as opposed to competitive bidding or proposals. § 287.055(4), (5), Fla....

construction of a multi-phase project comply with section 287.055(9)(c), Florida Statutes, when each phase of

professional services enumerated therein. Section 287.055, F.S. (1990 Sup.), requires an "agency" to

MILLS, Judge. The City of Jacksonville appeals a judgment declaring portions of its Ordinance 130.301 et seq., Professional Services Contracts (ordinance), invalid as inconsistent with Section 287.055, Florida Statutes (1981), the Consultants’ Competitive Negotiations Act (Act)....

...Without an express prohibition, or express preemption of the subject by the legislature, we must determine whether such use of fee quotations damages the process established by the Act. We conclude that it does not. The Act contemplates the City considering factors other than those listed in subsection 287.055(3)(c). Section 287.055(3)(d). The Act makes budget considerations a factor in selection, Section 287.055(4)(b)....

among the most qualified firms pursuant to Section 287.055(4), Florida Statutes.) 2 See, s. 287.055(2)(a)

A. Butterworth Attorney General RAB/tjw 1 Section 287.055, F.S., the Consultants' Competitive Negotiation

21418, Laws of Florida 1941, as amended. 3 Section 287.055, F.S., the Consultants' Competitive Negotiation