James A. Minix, Chief Assistant County Attorney
Maureen S. Sikora, Assistant County AttorneyA*
Robert M. Eschenfelder, Assistant County Attorney
Rodney C. Wade, Assistant County AttorneyA*
William E. Clague, Assistant County Attorney
James R. Cooney, Assistant County Attorney
Sarah A. Schenk, Assistant County AttorneyA*
Mitchell 0. Palmer, County Attorney*
MEMORANDUM
TO:
Charlie BishopProperty Management Director
THROUGH:
Mitchell 0 . Palmer-County
FROM:
Robert Michael
DATE:
7 November 20 1 2
RE :
v'
Self-Performance of Blackstone Park Ball Fields (RLS 12-267) (CAO File: 8000-047)
Attorney
0
In RLS 12-267, you indicate that the County and City of Palmetto have for some time discussed the most efficient and effective
way to construct new Little League baseball fields at Blackstone Park. You note that in order to keep costs at a minimum, and
given the desire to achieve construction quickly, and in light of the fact that the County employs a staff of skilled trades persons
capable of performing some of the elements of the construction of these fields, the County intends to self-perform those
elements. You note that the project may exceed $300,000 in cost, and that per Florida Statute 5 255.20 requires such projects to
be bid to the private sector. However, among the exceptions to this requirement is Florida Statute 5 255.20(1)(~)(9),which
permits the County Commission to find that it is in the County's best interest to use County services and equipment to perform
some or all of a construction project exceeding $300,000. This finding must be made after considering various factors, and only
after public notice of the intended self-performance and consideration by the Commission of the matter at a public meeting.
As you recall, the statute requires your staff to provide advanced notice, the development of detailed cost estimates for the
project, which are able to be examined by the public. I outlined these requirements in detail in RLS 11-422, and I'm attaching a
copy of that opinion to this response so you may refresh your recollection of the procedures you must follow leading up to
placing the item on the Commission's agenda. I have also drafted the attached Resolution 12-25 1, which is legally sufficient to
meet the statute's requirements. Once the Commission approves, your staff may begin the approved work.
I trust this adequately responds to your request for service. If you have other questions, please feel free to contact me.
c:
Ed Hunzeker-Manatee County Administrator
Karen Windon & Dan Schlandt-Deputy County Administrators
Melissa Wendel-Purchasing Official
*Board Certified in Construction Law
** Board Certified
in City, County & Local Government Law
1 1 12 Manatee Avenue West, Suite 969, P.O. Box 1000, Bradenton, FL 34206
(941) 745-3750 Fax (941) 749-3089
Office of
MANATEE COUNTY
ATTORNEY
J a m u A. Minix. Chlel Deputy County Attorney
Maureen S. Sikora, Deputy County Attorney'
Robert M. Eschenfelder, Deputy County Attorney
Rodney C. Wade, Deputy County Attorneya
William E. Clague, Deputy County Attorney
J a m u R. Cooney, Deputy County Attorney
Sarah A. Schenk Deputy County Attorney*
Tedd N. Williams, Jr., County Attorney
MEMORANDUM
TO:
Charlie Bishop--Property Management Department
FROM:
Robert Michael Eschenfelder-Deputy
THROUGH: Tedd N. Williams, Jr.-County
County
Atto
V
DATE:
3 January 20 12
RE:
Self-Performance of Construction Projects (RLS-11-422) (CAO File No: 8000-037)
QUESTION(S) PRESENTED:
1. Under what conditions is Manatee County permitted to perform major construction projects with its own personnel
and equipment?
2. What is the procedure for Manatee County to decide if it will perform major construction projects with its own
personnel and equipment?
BRIEF ANSWER(S):
The County is permitted to use its own staff and equipment to self-perform construction projects, but where such
projects exceed $300,000, the County Commission must first advertise and conduct a public hearing, and find it is in
the public's best interests. To the extent the County self-performs such projects, it must use licensed contractors,
obtain relevant building permits, and be subject to the same inspections as would apply to a private-sector contractor.
FACTUAL BACKGROUND:
In RLS 11-422, you state that given the County Commission's recent approval of acquiring a building to relocate the
County's Employee Health Benefits Division, the County intends to transform the space vacated by that group into
* Board Certified City, County & Local Government Law
11 12 Manatee Avenue West, Suite 969, P.O. Box 1000, Bradenton, FL 34206
(941) 745-3750 Fax (941) 749-3089
additional secure space to house an expanded evidence & property storage facility for use by the Manatee County
Sheriffs Office. You indicate that the transformation of the vacated space into a facility able to meet the Sheriffs
needs will require construction work likely to exceed $300,000 in value.
You note that your ongoing duties as Director of Property Management include attempting to ensure that construction
projects are contracted for and performed in accordance with the law, and to accomplish them in the most cost
effective manner possible for the taxpayers. To that end, and in light of the fact that the County maintains an in-house
staff group able to perform certain construction projects, you are contemplating utilizing the County's in-house
construction staff and equipment to "self-perform" some or all of the property & evidence renovation project. You
anticipate the total value of this project would exceed $300,000, and that self-performing would result in substantial
savings. You have asked under what conditions the County may "self-perform" such projects, and what the
procedures would be to make such a decision. I have reviewed the relevant legal authorities and advise as follows:
DISCUSSION:
Florida Statutes § 255.20 governs the requirements cities, counties and other political subdivisions must follow when
seeking to construct or improve public buildings. In general, the statute provides that:
A county.. .seeking to construct or improve a public building.. .must competitively award to an appropriately
licensed contractor each project.. .estimated in accordance with generally accepted cost-accounting principles
to cost more than $300,000.
Florida Statutes $ 255.20(1). This same section requires similar procedures for "electrical work" to cost more than
$75,000, and provides that "competitively award" means the use of sealed bids, RFPs, or similar procurement tools.
The section also provides that "cost" includes "the cost of all labor, except inmate labor, and the cost of equipment
and materials to be used in the construction of the project."
The Legislature did, however, provide for various exceptions to the requirement to competitively-select private-sector
contractors for major construction projects. The exception applicable to this RLS provides, in relevant part:
The provisions of this subsection do not apply if the governing board of the local government...conducts a
public meeting ...after public notice, and finds by majority vote ...that it is in the public's best interest to
perform the project using its own services, employees, and equipment. The public notice must be published
at least 2 1 days before the date of the public meeting.. .[and]. ..must identify the project, the components and
scope of the work, and the estimated cost of the project using generally accepted cost-accounting principles
that fully account for all costs associated with performing and completing the work, including employee
compensation and benefits, equipment cost and maintenance, insurance costs, and materials. The notice must
specify that the purpose for the public meeting is to consider whether it is in the public's best interest to
perform the project using the local government's own services, employees, and equipment. Upon publication
of the notice.. .the local government shall make available for public inspection.. .at a location specified in the
public notice, a detailed itemization of each component of the estimated cost of the project and
documentation explaining the methodology used to arrive at the estimated cost.
Florida Statutes 255.20(1)(~)(9). This exception provides that at the public hearing, any qualified contractor or
vendor shall have a reasonable opportunity to present evidence regarding the accuracy of the estimated costs. In
deciding the question of "best interests" to self-perform, the statute requires the Commission to consider:
...the estimated cost of the project and the accuracy of the estimated cost in light of any other information
that may be presented at the public meeting and whether the project requires an increase in the number of
government employees or an increase in capital expenditures for public facilities, equipment, or other capital
assets.
Id. In sum, if the County desires to self-perform a construction project such as the property & evidence renovation, it
must comply with the following items:
1. Publically notice a public hearing at least 2 1 days prior to the date set for the hearing.
2. The Notice must contain information sufficient to identify the project, the components and scope ofthe work,
and the estimated cost of the project using generally accepted cost-accounting principles that fully account for all
costs associated with performing and completing the work, including employee compensation and benefits,
equipment cost and maintenance, insurance costs, and materials.
3. The notice must specify that the purpose for the public meeting is to consider whether it is in the public's best
interest to perform the project using the local government's own services, employees, and equipment.
4. Beginning on the date of publication of the Notice, and through the date of the hearing, the County must
make available for public inspection a detailed itemization of each component ofthe estimated cost ofthe project
and documentation explaining the methodology used to arrive at the estimated cost.
5. The location of where these materials may be examined must be set forth within the published Notice.
6. At the public hearing, the Commission must permit any qualified contractor or vendor to present evidence
regarding the accuracy of the estimated costs.
7. If the Commission takes a majority vote finding that using the County's own services, employees and
equipment to perform the project in the manner proposed by staff is in the public's best interests, it is strongly
advised to do so via a written resolution which confirms the decision, and that the decision was arrived at after
considering the estimated cost of the project and the accuracy of the estimated cost in light of any other
information that was presented at the hearing, and whether the project required an increase in the number of
government employees or an increase in capital expenditures for County facilities, equipment, or other capital
assets.
Inasmuch as you asked for clarification on a related question in a meeting on this topic, we do confirm that the
hearing required by the law may be conducted at the same meeting at which the County Commission considers and
approves annual capital improvement projects, including those located within an annual budget. The County only
needs to ensure that the decision(s) are made after complying with the required public notice, records inspection
period, and hearing procedures outlined above.
Finally, in determining whether any particular project is suitable for "self-performance", the County should factor in
that the statute provides that ifthe County performs a project in excess of $300,000 with its own stafT,and the project
"would require a contractor licensed under chapter 489 if performed by a private sector contractor," then the County
must assign a staff person appropriately registered or certified under that chapter. Such "self-performed" projects
must also be performed after having obtained any required building permits, and "must be inspected in the same
manner as required for work performed by private sector contractors." See, Florida Statutes tj 255,20(1)(f) and (g).
If, after considering the information and advice provided above, the administration desires to proceed with setting
such a hearing for this, or any future project, our Office will assist in drafting the required Notice and Resolution to
ensure all of the elements of the statute are fully addressed.
CONCLUSION:
In conclusion, I advise that the County is permitted to use its own staff and equipment to self-perform construction
projects, but where such projects exceed $300,000, the County Commission must first advertise and conduct apublic
hearing in the manner described above. 'This advertising and hearing may be done any time of year, and may be done
in conjunction with the annual budget and CIP process, to the extent the County is able to provide the project
specifics required in the statute. To the extent the County self-performs such projects, it must use licensed
contractors, obtain relevant building permits, and be subject to the same inspections as would apply to aprivate-sector
contractor.
I trust this answer to your request for legal services sufficiently responded to the question@) posed. If you have any
hrther questions, please feel free to contact me.
c:
Hon. Chair & Members of the Manatee County Commission
Ed Hunzeker-County Administrator
Deputy County Administrators
Jim Seuffert-Financial Management Department Director
John Barnott-Building and Development Services Director
James A. Minix-Chief Deputy County Attorney
Melissa Assha-Interim Purchasing Official
Dennis Wallace4ontracts & Buyers Manager