CONSULTANTS’ COMPETITIVE NEGOTIATION ACT (“CCNA”) PRIMER

imagesFlorida Statute s. 287.055 is known as the Consultants’ Competitive Negotiation Act (“CCNA”).  This Act governs a public entity’s acquisition of professional architectural, engineering, landscape architecture, and surveying and mapping services.  Applicable here, it indirectly applies to the procurement of design-build contracts for public projects in excess of $325,000.  It also applies to the procurement of construction management contracts for public projects in excess of $325,00. See Fla. Stat. s. 255.103(2) (“A governmental entity may select a construction management entity, pursuant to the process provided by s. 287.055, which is to be responsible for schedule control, cost control, and coordination in providing or procuring, planning, design, and construction services.”)

 

First, the CCNA contains a competitive selection process as follows:

 

  • Public body shall evaluate current statements of qualifications and performance date on file, together with those that may be submitted by other firms regarding the project, and may require public presentations by no fewer than 3 firms regarding the firm’s qualifications, approach to the project, and ability to furnish the professional services;
  • Public body shall select in order of preference no fewer than 3 firms deemed the most qualified.  Public body shall consider qualification factors such as “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.”

 

*Public body may request, accept, and consider proposals for compensation to be paid only during the competitive negotiation process.

 

Second, the CCNA contains a competitive negotiation process:

 

  • Public body shall negotiate contract with the most qualified firm at compensation public body 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.”

 

  • If Public body unable to negotiate satisfactory contract with firm it considers most qualified at compensation it determines to be fair, competitive, and reasonable, public body shall terminate negotiations with this firm and move on to the second most qualified firm.  (If public body cannot negotiate fair, competitive, and reasonable compensation with this firm, public body shall terminate negotiations and move on to third most qualified firm.)

 

With respect to design-build contracts, municipalities, political subdivisions, school districts, and school boards can either select design-builder based on above qualifications process(**) or can use competitive proposal selection process with the following minimum procedures:

 

  • Public body must prepare design criteria package. (“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 construction schedules, site development requirements, provisions for utilities, stormwater retention and disposal, and parking requirements applicable to the project.”)

 

  • Selection of no fewer than 3 design-build firms as most qualified “based on the qualifications, availability, and past work of the firms, including the partners of members thereof.”

 

  • Evaluation criteria for evaluating design-build contractor proposals “based on price, technical, and design aspects of the public construction project, weighted for the project.”

 

  • Solicitation of competitive proposals from those qualified design-build firms and evaluation of responses from those firms based on evaluation criteria.

 

** If public body “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.”

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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