Agenda 11/10/2015 Item #16F6 11/10/2015 16.F.6.
EXECUTIVE SUMMARY
Recommendation to allow the use of subcontractors as directed by the awarded contractor,
consistent with the recommendation of the Collier Building Industry Association(CBIA).
OBJECTIVE: To provide a follow-up report of the findings of the use of subcontractors.
CONSIDERATIONS: On September 8, 2015, Agenda Item 16E13 was moved to the Board's regular
agenda (Item 11 G) to discuss the implication of amending contracts that included specific restrictive
subcontractor percentages. At the request of the Board, the County Manager's Office conducted a
meeting with the Clerk of Court's representatives, the Collier Building Industry Association (CBIA), two
contractors and County staff.
Additionally, the Board's staff requested information from Florida public agencies; of which, more than
sixty-six(66.6%)percent responded.
• Eleven(11)agencies(or 78.6%of the respondents)do not have restrictive subcontractor language
(Seminole County, St. Lucie County, Escambia County, Lee County, Lake County, St. John's
County, Manatee County, Charlotte County Schools, Collier County Schools, Lee County
Schools, and City of Naples).
• Three (3) agencies (or 21.4% of the respondents) have restrictive subcontract language on
selected contracts only (Hernando County, City of Cape Coral, and City of Punta Gorda).
In summary, the opinion of the contractors and CBIA professionals was that there is no legal requirement
to have minimum / maximum limits with respect to subcontractor stipulations, particularly with some
trades like general contractors, utility contractors, and other licensed professionals whose jobs included
the coordination of multiple trades. Moreover, two (2) of the general contractors attending the meeting
believed that the statement in the solicitation document("Bidders on any service related project, including
construction, must be qualified and directly responsible for [an identified percent] or more of the
solicitation amount for said work.") should be interpreted to mean the following by the County:
"In the event the Contractor does not "self perform" any or all tasks within the
specifications, and utilizes subcontractors, the Contractor is directly responsible for all
supervision, monitoring and compliance for one hundred percent (100%) of meeting time,
budget and specification quality in the performance of a project for the County."
This is also consistent with Florida Statutes 489.113(3)which states that:
A contractor shall subcontract all electrical, mechanical, plumbing, roofing, sheet metal,
swimming pool, and air-conditioning work, unless such contractor holds a state certificate or
registration in the respective trade category...
Staff also discussed if the restriction should be lifted on all contracts. The consensus was generally in
favor to do so with the understanding that payments to subcontractors would become a private matter.
Staff from the County and the Clerk's office did discuss with members of CBIA the inability of
subcontractors to lien the County. CBIA did not feel that this was an issue, and it was a matter that would
be self-policing. County staff felt that the failure of payment concern to a subcontractor was not a
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systemic problem. Subcontractors primarily complain of delayed payments from the prime vendor, not
the County or Clerk's staff.
Staff supports the recommendation that the Board accept the opinion of the Collier Building Industry
Association (CBIA) regarding minimum / maximum limits with respect to all subcontractor stipulations
and accept the working definition of contractor responsibility, thus allowing the use of subcontractors as
directed by awarded contractor. If approved by the Board, all future contracts would remove
subcontractor minimums unless the project required specific vendor participation due to specialty trades,
proprietary information, or security concerns.
FISCAL IMPACT: There is no fiscal impact associated with this Executive Summary.
GROWTH MANAGEMENT IMPACT: There are no Growth Management Impacts associated with
this Executive Summary.
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to
form and legality, and requires majority vote for approval. -JAK
RECOMMENDATIONS: That the Board of County Commissioners accepts the recommendation of
staff to allow the use of subcontractors as directed by the awarded contractor, consistent with the
recommendation of the Collier Building Industry Association (CBIA) and accept the working definition
of contractor responsibility, thus allowing the retroactive and future use of subcontractors as directed by
awarded contractors.
Prepared by: Nick Casalinguida, Deputy County Manager
Joanne Markiewicz, Director,Procurement Services Division
Attachments:
1) CBIA Letter
2) Florida Statute 489.113
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.F.16.F.6.
Item Summary: Recommendation to allow the use of subcontractors as directed by the
awarded contractor, consistent with the recommendation of the Collier Building Industry
Association (CBIA).
Meeting Date: 11/10/2015
Prepared By
Name: BrockMaryJo
Title:Executive Secretary to County Manager, County Managers Office
11/2/2015 8:29:53 AM
Submitted by
Title:Executive Secretary to County Manager, County Managers Office
Name: BrockMaryJo
11/2/2015 8:29:54 AM
Approved By
Name: KlatzkowJeff
Title: County Attorney,
Date: 11/2/2015 8:55:27 AM
Name: IsacksonMark
Title: Division Director-Corp Fin &Mgmt Svc, Office of Management&Budget
Date: 11/2/2015 9:03:26 AM
Name: OchsLeo
Title: County Manager, County Managers Office
Date: 11/2/2015 3:27:15 PM
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CBIA 3200 Bailey Lane. Suite 110. Naples. FL 34105. 239-436-6100. www.cbia.net
October 7, 2015
Nick Casalanguida
Deputy County Manager
Collier County Government Center
3301 Tamiami Trail East
Naples FL, 34112
Dear Nick,
On behalf of CBIA,we appreciate your outreach for the input of CBIA on the matter of subcontractor
minimum/maximums limits in general contractor contracts with Collier County and for providing our
members the opportunity to participate in the highly productive meeting this past week with representatives
from the county and clerk's staff.
I would like to reiterate our agreement that limitations should not be included in county contracts and that
there is no legal requirement to have minimum/maximum limits with respect to subcontractor stipulations in
general contractor contracts and fixed term/price contracts with Collier County.
Again, thank you for the opportunity to share input from our perspective. We look forward to continued
collaboration on issues that affects the construction industry in Collier County.
Sits erely
/ Kathy Curatto
Executive yice President
Collier Building Industry Association
C: Commissioner Donna Fiala
Commissioner Tom Henning
Commissioner Georgia Hiller
Commissioner Penny Taylor
Commissioner Tim Nance
County Manager Leo Ochs
CBIA President,Terry Kelly
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489.113 Qualifications for practice; restrictions.—
(1) Any person who desires to engage in contracting on a statewide basis shall, as a prerequisite
thereto, establish his or her competency and qualifications to be certified pursuant to this part.To
establish competency, a person shall pass the appropriate examination approved by the board and
certified by the department.Any person who desires to engage in contracting on other than a statewide
basis shall, as a prerequisite thereto, be registered pursuant to this part, unless exempted by this part.
(2) A person must be certified or registered in order to engage in the business of contracting in this
state. However,for purposes of complying with the provisions of this chapter, a subcontractor who is
not certified or registered may perform construction work under the supervision of a person who is
certified or registered, provided that the work is within the scope of the supervising contractor's license,
the supervising contractor is responsible for the work,and the subcontractor being supervised is not
engaged in construction work that would require a license as a contractor under any of the categories
listed in s.489.105(3)(d)-(o).This subsection does not affect the application of any local construction
licensing ordinances.To enforce this subsection:
(a) The department shall issue a cease and desist order to prohibit any person from engaging in the
business of contracting who does not hold the required certification or registration for the work being
performed under this part. For the purpose of enforcing a cease and desist order,the department may
file a proceeding in the name of the state seeking issuance of an injunction or a writ of mandamus
against any person who violates any provision of such order.
(b) A county, municipality, or local licensing board created by special act may issue a cease and desist
order to prohibit any person from engaging in the business of contracting who does not hold the
required certification or registration for the work being performed under this part.
(3) A contractor shall subcontract all electrical, mechanical, plumbing, roofing, sheet metal, swimming
pool,and air-conditioning work, unless such contractor holds a state certificate or registration in the
respective trade category, however:
(a) A general, building, or residential contractor,except as otherwise provided in this part,shall be
responsible for any construction or alteration of a structural component of a building or structure, and
any certified general contractor or certified underground utility and excavation contractor may perform
clearing and grubbing, grading, excavation, and other site work for any construction project in the state.
Any certified building contractor or certified residential contractor may perform clearing and grubbing,
grading, excavation,and other site work for any construction project in this state, limited to the lot on
which any specific building is located.
(b) A general, building,or residential contractor shall not be required to subcontract the installation, or
repair made under warranty,of wood shingles,wood shakes, or asphalt or fiberglass shingle roofing
materials on a new building of his or her own construction.
(c) A general contractor shall not be required to subcontract structural swimming pool work.All other
swimming pool work shall be subcontracted to an appropriately licensed certified or registered
swimming pool contractor.
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(d) A general contractor shall not be required to subcontract the construction of a main sanitary sewer
collection system, storm collection system, or water distribution system, not including the continuation
of utility lines from the mains to the buildings, and may perform any of the services,on public or private
property,for which a license as an underground utility and excavation contractor is required under this
part.
(e) A general contractor shall not be required to subcontract the continuation of utility lines from the
mains in mobile home parks, and such continuations are to be considered a part of the main sewer
collection and main water distribution systems.
(f) A solar contractor shall not be required to subcontract minor, as defined by board rule,electrical,
mechanical, plumbing,or roofing work so long as that work is within the scope of the license held by the
solar contractor and where such work exclusively pertains to the installation of residential solar energy
equipment as defined by rules of the board adopted in conjunction with the Electrical Contracting
Licensing Board.
(g) No general, building, or residential contractor certified after 1973 shall act as, hold himself or
herself out to be,or advertise himself or herself to be a roofing contractor unless he or she is certified or
registered as a roofing contractor.
(4)(a) When a certificateholder desires to engage in contracting in any area of the state, as a
prerequisite therefor, he or she shall be required only to exhibit to the local building official,tax
collector, or other person in charge of the issuance of licenses and building permits in the area evidence
of holding a current certificate and to pay the fee for the occupational license and building permit
required of other persons.
(b) Notwithstanding the provisions of paragraph (a), a local construction regulation board may deny,
suspend, or revoke the authority of a certified contractor to obtain a building permit or limit such
authority to obtaining a permit or permits with specific conditions, if the local construction regulation
board has found such contractor,through the public hearing process,to be guilty of fraud or a willful
building code violation within the county or municipality that the local construction regulation board
represents or if the local construction regulation board has proof that such contractor,through the
public hearing process, has been found guilty in another county or municipality within the past 12
months, of fraud or a willful building code violation and finds, after providing notice of an opportunity to
be heard to the contractor,that such fraud or violation would have been fraud or a violation if
committed in the county or municipality that the local construction board represents. Notification of
and information concerning such permit denial shall be submitted to the department within 15 days
after the local construction regulation board decides to deny the permit.
(c) The local government may also deny issuance of,or may suspend, any outstanding building permit
where a contractor fails or refuses to provide proof of public liability and property damage insurance
coverage as required by s.489.115(5) and workers' compensation insurance coverage as required by s.
489.114.
(d) It is the policy of the state that the purpose of regulation is to protect the public by attaining
compliance with the policies established in law. Fines and other penalties are provided in order to
ensure compliance; however,the collection of fines and the imposition of penalties are intended to be
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secondary to the primary goal of attaining compliance with state laws and local jurisdiction ordinances.
It is the intent of the Legislature that a local jurisdiction agency charged with enforcing regulatory laws
shall issue a notice of noncompliance as its first response to a minor violation of a regulatory law in any
instance in which it is reasonable to assume that the violator was unaware of such a law or unclear as to
how to comply with it.A violation of a regulatory law is a "minor violation" if it does not result in
economic or physical harm to a person or adversely affect the public health, safety, or welfare or create
a significant threat of such harm. A"notice of noncompliance" is a notification by the local jurisdiction
agency charged with enforcing the ordinance,which is issued to the licensee that is subject to the
ordinance.A notice of noncompliance should not be accompanied with a fine or other disciplinary
penalty. It should identify the specific ordinance that is being violated, provide information on how to
comply with the ordinance, and specify a reasonable time for the violator to comply with the ordinance.
Failure of a licensee to take action correcting the violation within a set period of time would then result
in the institution of further disciplinary proceedings.
(5) The certificate is not transferable.
(6) The board shall, by rule, designate those types of specialty contractors which may be certified
under this part.The limit of the scope of work and responsibility of a specialty contractor shall be
established by the board by rule. However, a certified specialty contractor category established by board
rule exists as a voluntary statewide licensing category and does not create a mandatory licensing
requirement.Any mandatory statewide construction contracting licensure requirement may only be
established through specific statutory provision.
(7) If an eligible applicant fails any contractor's written examination, except the general and building
contractors' examination,and provides the board with acceptable proof of lack of comprehension of
written examinations,the applicant may petition the board to be administered a uniform oral
examination,subject to the following conditions:
(a) The applicant documents 10 years of experience in the appropriate construction craft.
(b) The applicant files written recommendations concerning his or her competency in the appropriate
construction craft.
(c) The applicant is administered only one oral examination within a period of 1 year.
(8) Any public record of the board,when certified by the executive director of the board or the
executive director's representative, may be received as prima facie evidence in any administrative or
judicial proceeding.
(9)(a) This part does not prevent any contractor from acting as a prime contractor where the majority
of the work to be performed under the contract is within the scope of his or her license or from
subcontracting to other licensed contractors that remaining work which is part of the project
contracted.
(b) This part, chapter 471, chapter 481,or any other provision of law does not:
1. Prevent any licensed engineer or architect from contracting directly with a licensed contractor for
the preparation of plans, specifications,or a master design manual addressing structural designs used to
make an application for building permits.
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2. Require a licensed engineer or architect,when preparing drawings, specifications, plans,or master
design manuals for use by any licensed contractor,to prepare site-specific drawings, specifications, or
plans for the design and construction of single-family and two-family dwellings; swimming pools, spas,
or screened enclosures; or any other structure not exceeding 1,200 square feet or one story in height.
For the purpose of issuing building permits, local building officials shall accept such drawings,
specifications, or plans when submitted by any licensed contractor. Upon good cause shown, local
government code enforcement agencies may accept or reject plans prepared by persons licensed under
chapter 471, chapter 481, or this chapter.
As used in this section,the term "master design manual" means a restrictive design manual intended to
be used to design, permit, and construct structures as described in this section.Any such manual must
be prepared by a licensed engineer or architect and specifically detail the limits of its use, including, but
not limited to,the structure type, size, materials, loading conditions,time limits,applicable codes, and
associated criteria.The manual must also detail the required training for the contractor, engineer, or
architect using the manual.All master design manuals must be peer reviewed by an independent
licensed engineer or architect having no financial interest in the development of the manual or the
construction of structures pursuant to the manual.The engineer or architect conducting the peer review
must be identified in the manual.
(c) Notwithstanding anything in this chapter or any other provision of law, a licensed engineer or
architect is not required for the preparation or use of any design guide adopted by the Florida Building
Commission as part of the building code pursuant to s. 553.73.
(10) The addition of a new type of contractor or the expansion of the scope of practice of any type of
contractor under this part shall not limit the scope of practice of any existing type of contractor under
this part unless the Legislature expressly provides such a limitation.
(11) Any local act, law, ordinance, or regulation, including, but not limited to, a local building code or
building permit requirement, of a county, municipality, or other political subdivision that pertains to
hoisting equipment including power-operated cranes, derricks, hoists, elevators,and conveyors used in
construction, demolition, or excavation work, that is not already preempted by the Occupational Safety
and Health Administration under 29 C.F.R. parts 1910 and 1926, including, but not limited to, local
worksite regulation regarding hurricane preparedness or public safety, is prohibited and is preempted to
the state.This subsection does not apply to the regulation of elevators under chapter 399 or to airspace
height restrictions in chapter 333.
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