§ 255.25 — Approval required before construction or lease of buildings

Florida § 255.25

• Jurisdiction: Florida
• Title: XVIII
• Ch. 255: PUBLIC PROPERTY AND PUBLICLY OWNED BUILDINGS

Text

(1) During the term of existing leases, each agency shall consult with the department regarding opportunities for consolidation, use of state-owned space, build-to-suit space, and potential acquisitions; shall monitor market conditions; and shall initiate a competitive solicitation or, if appropriate, lease-renewal negotiations for each lease held in the private sector to effect the best overall lease terms reasonably available to that agency. (a) Amendments to leases may be permitted to modify any lease provisions or other terms or conditions unless specifically prohibited under this chapter. (b) The department shall serve as a mediator in lease-renewal negotiations if the agency and the lessor are unable to reach a compromise within 6 months after renegotiation and if the agency or lessor requests intervention by the department. (c) If authorized by the General Appropriations Act, and in accordance with s. 255.2501, if applicable, the department may approve a lease-purchase, sale-leaseback, or tax-exempt leveraged lease contract or other financing technique for the acquisition, renovation, or construction of a state fixed capital outlay project if it is in the best interest of the state.

(2) Except as provided in ss. 255.249 and 255.2501, a state agency may not lease a building or any part thereof unless prior approval of the lease conditions and of the need for the lease is first obtained from the department. An approved lease may include an option to purchase or an option to renew the lease, or both, upon such terms and conditions as are established by the department, subject to final approval by the head of the department and s. 255.2502. (a) For the lease of less than 5,000 square feet of space, including space leased for nominal or no consideration, a state agency must notify the department at least 90 days before the execution of the lease. The department shall review the lease and determine whether suitable space is available in a state-owned or state-leased building located in the same geographic region. If the department determines that space is not available, the department shall determine whether the state agency lease is in the best interests of the state. If the department determines that the execution of the lease is not in the best interests of the state, the department shall notify the agency proposing the lease, the Governor, the President of the Senate, and the Speaker of the House of Representatives of such finding in writing. A lease that is for a term extending beyond the end of a fiscal year is subject to ss. 216.311, 255.2502, and 255.2503. (b) The department shall adopt uniform leasing procedures by rule for use by each state agency. Each state agency shall ensure that the leasing practices of that agency are in substantial compliance with the uniform leasing rules adopted under this section and ss. 255.249, 255.2502, and 255.2503. (c) The department may not approve any term or condition in a lease agreement which has been amended, supplemented, or waived unless a comprehensive analysis, including financial implications, demonstrates that such amendment, supplement, or waiver is in the state’s long-term best interest. An approved lease may include an option to purchase or an option to renew the lease, or both, upon such terms and conditions as are established by the department, subject to final approval by the head of the department, and the provisions of s. 255.2502.

(3)(a) Except as provided in subsection (10), a state agency may not enter into a lease as lessee for the use of 5,000 square feet or more of space in a privately owned building except upon advertisement for and receipt of competitive solicitations. 1.a. An invitation to bid must be made available simultaneously to all lessors and include a detailed description of the space sought; the time and date for the receipt of bids and of the public opening; and all contractual terms and conditions applicable to the procurement, including the criteria to be used in determining the acceptability of the bid. If the agency contemplates renewing the contract, that fact must be stated in the invitation to bid. The bid must include the price for each year for which the contract may be renewed. Evaluation of bids must include consideration of the total cost for each year as submitted by the lessor. Criteria that were not set forth in the invitation to bid may not be used in determining the acceptability of the bid. b. The contract shall be awarded with reasonable promptness by written notice to the responsible and responsive lessor that submits the lowest responsive bid. The contract file must contain a written determination that the bid meets the requirements and criteria set forth in the invitation to bid. 2.a. If an agency determines in writing that the use of an invitation to bid is not practicable, leased space shall be procured by competitive sealed proposals. A request for proposals shall be made available simultaneously to all lessors and must include a statement of the space sought; the time and date for the receipt of proposals and of the public opening; and all contractual terms and conditions applicable to the procurement, including the criteria, which must include, but need not be limited to, price, to be used in determining the acceptability of the proposal. The relative importance of price and other evaluation criteria must be indicated. If the agency contemplates renewing the contract, that fact must be stated in the request for proposals. The proposal must include the price for each year for which the contract may be renewed. Evaluation of proposals must include consideration of the total cost for each year as submitted by the lessor. b. The contract shall be awarded to the responsible and responsive lessor whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for proposals. The contract file must contain documentation supporting the basis on which the award is made. 3.a. If the agency determines in writing that the use of an invitation to bid or a request for proposals will not result in the best leasing value to the state, the agency may procure leased space by competitive sealed replies. The agency’s written determination must specify reasons why negotiation may be necessary in order for the state to achieve the best leasing value and must be approved in writing by the agency head or his or her designee before advertisement of an invitation to negotiate. Cost savings related to the agency procurement process are not sufficient justification for using an invitation to negotiate. An invitation to negotiate shall be made available to all lessors simultaneously and must include a statement of the space sought; the time and date for the receipt of replies and of the public opening; and all terms and conditions applicable to the procurement, including the criteria to be used in determining the acceptability of the reply. If the agency contemplates renewing the contract, that fact must be stated in the invitation to negotiate. The reply must include the price for each year for which the contract may be renewed. b. The agency shall evaluate and rank responsive replies against all evaluation criteria set forth in the invitation to negotiate and select, based on the ranking, one or more lessors with which to commence negotiations. After negotiations are conducted, the agency shall award the contract to the responsible and responsive lessor that the agency determines will provide the best leasing value to the state. The contract file must contain a short, plain statement that explains the basis for lessor selection and sets forth the lessor’s deliverables and price pursuant to the contract, and an explanation of how these deliverables and price provide the best leasing value to the state. (b) The department shall have the authority to approve a lease for 5,000 square feet or more of space which covers more than 12 consecutive months, subject to ss. 216.311, 255.2501, 255.2502, and 255.2503, if such lease is, in the judgment of the department, in the best interests of the state. In determining best interest, the department shall consider availability of state-owned space and analyses of build-to-suit and acquisition opportunities. This paragraph does not apply to buildings or facilities of any size leased for the purpose of providing care and living space to individuals. (c) The department may approve extensions of an existing lease of 5,000 square feet or more of space if such extensions are determined to be in the best interests of the state; however, the total of such extensions may not exceed 11 months. If at the end of the 11th month an agency still needs that space, it must be procured by competitive bid in accordance with s. 255.249(9)(b). However, if the Department of Agriculture and Consumer Services, the Department of Financial Services, or the Department of Legal Affairs determines that it is in its best interest to remain in the space it currently occupies, it may negotiate a replacement lease with the lessor if an independent comparative market analysis demonstrates that the rates offered are within market rates for the space and the cost of the new lease does not exceed the cost of a comparable lease plus documented moving costs. A present-value analysis and the consumer price index shall be used in the calculation of lease costs. The term of the replacement lease may not exceed the base term of the expiring lease. For those agencies for which the department may approve lease actions, the department may approve a replacement lease with a lessor for an agency to remain in the space it currently occupies if such lease is, in the judgment of the department, in the best interests of the state. In determining best interest, the department shall consider availability of state-owned space and analyses of build-to-suit and acquisition opportunities. The term of the replacement lease may not exceed the base term of the expiring lease. Any relocation of an agency at the direction of the department shall be within existing appropriations and shall not require a transfer of any funds pursuant to chapter 216. (d) Any person who files an action protesting a decision or intended decision pertaining to a competitive solicitation for space to be leased by the agency pursuant to s. 120.57(3)(b) shall post with the state agency at the time of filing the formal written protest a bond payable to the agency in an amount equal to 1 percent of the estimated total rental of the basic lease period or $5,000, whichever is greater, which bond is conditioned on the payment of all costs that may be adjudged against him or her in the administrative hearing in which the action is brought and in any subsequent appellate court proceeding. If the agency prevails after completion of the administrative hearing process and any appellate court proceedings, it shall recover all costs and charges, which must be included in the final order or judgment, excluding attorney fees. Upon payment of such costs and charges by the person protesting the award, the bond shall be returned to him or her. If the person protesting the award prevails, the bond shall be returned to that person and he or she shall recover from the agency all costs and charges, which must be included in the final order of judgment, excluding attorney fees. (e) The agency and the lessor, when entering into a lease for 5,000 or more square feet of a privately owned building, shall, before the effective date of the lease, agree upon and separately state the cost of tenant improvements which may qualify for reimbursement if the lease is terminated before the expiration of its base term. The department shall serve as mediator if the agency and the lessor are unable to agree. The amount agreed upon and stated shall, if appropriated, be amortized over the original base term of the lease on a straight-line basis. (f) The unamortized portion of tenant improvements, if appropriated, shall be paid in equal monthly installments over the remaining term of the lease. If any portion of the original leased premises is occupied after termination but during the original term by a tenant who does not require material changes to the premises, the repayment of the cost of tenant improvements applicable to the occupied but unchanged portion shall be abated during occupancy. The portion of the repayment to be abated must be based on the ratio of leased space to unleased space. (g) Notwithstanding s. 287.056(1), a state agency may, at the sole discretion of the agency head or his or her designee, use the services of a tenant broker to assist with a competitive solicitation undertaken by the agency. In making its determination whether to use a tenant broker, a state agency shall consult with the department. A state agency may not use the services of a tenant broker unless the tenant broker is under a term contract with the state which complies with paragraph (h). If a state agency uses the services of a tenant broker with respect to a transaction, the agency may not enter into a lease with any landlord to which the tenant broker is providing brokerage services for that transaction. (h) The Department of Management Services may, pursuant to s. 287.042(2)(a), procure a term contract for real estate consulting and brokerage services. A state agency may not purchase services from the contract unless the contract has been procured under s. 287.057(1) after March 1, 2007, and contains the following provisions or requirements: 1. Awarded brokers must maintain an office or presence in the market served. In awarding the contract, preference must be given to brokers that are licensed in this state under chapter 475 and that have 3 or more years of experience in the market served. The contract may be made with up to three tenant brokers in order to serve the marketplace in the north, central, and south areas of the state. 2. Each contracted tenant broker shall work under the direction, supervision, and authority of the state agency, subject to the rules governing lease procurements. 3. The department shall provide training for the awarded tenant brokers concerning the rules governing the procurement of leases. 4. Tenant brokers must comply with all applicable provisions of s. 475.278. 5. Real estate consultants and tenant brokers shall be compensated by the state agency, subject to the provisions of the term contract, and such compensation is subject to appropriation by the Legislature. A real estate consultant or tenant broker may not receive compensation directly from a lessor for services that are rendered under the term contract. Moneys paid by a lessor to the state agency under a facility leasing arrangement are not subject to the charges imposed under s. 215.20. All terms relating to the compensation of the real estate consultant or tenant broker shall be specified in the term contract and may not be supplemented or modified by the state agency using the contract. 6. The department shall conduct periodic customer-satisfaction surveys. 7. Each state agency shall report the following information to the department: a. The number of leases that adhere to the goal of the workspace-management initiative of 180 square feet per FTE. b. The quality of space leased and the adequacy of tenant-improvement funds. c. The timeliness of lease procurement, measured from the date of the agency’s request to the finalization of the lease. d. Whether cost-benefit analyses were performed before execution of the lease in order to ensure that the lease is in the best interest of the state. e. The lease costs compared to market rates for similar types and classifications of space according to the official classifications of the Building Owners and Managers Association.

(4)(a) The department shall not authorize any state agency to enter into a lease agreement for space in a privately owned building when suitable space is available in a state-owned building located in the same geographic region, except upon presentation to the department of sufficient written justification, acceptable to the department, that a separate space is required in order to fulfill the statutory duties of the agency making such request. The term “state-owned building” as used in this subsection means any state-owned facility regardless of use or control. (b) State agencies shall cooperate with local governmental units by using suitable, existing publicly owned facilities, subject to the provisions of ss. 255.2501, 255.2502, and 255.2503. Agencies may utilize unexpended funds appropriated for lease payments to: 1. Pay their proportion of operating costs. 2. Renovate applicable spaces. (c) Because the state has a substantial financial investment in state-owned buildings, it is legislative policy and intent that when state-owned buildings meet the needs of state agencies, agencies must fully use such buildings before leasing privately owned buildings. By September 15, 2006, the Department of Management Services shall create a 5-year plan for implementing this policy. The department shall update this plan annually, detailing proposed departmental actions to meet the plan’s goals, and shall furnish this plan annually as part of the master leasing report.

(5) Before construction or renovation of any state-owned building or state-leased space is commenced, the department shall determine, through the submission of proposed plans to the Division of State Fire Marshal for review, whether the proposed construction or renovation plan complies with the uniform firesafety standards required by the division. The review of construction or renovation plans for state-leased space must be completed within 10 calendar days after receipt of the plans by the division. The review of construction or renovation plans for a state-owned building must be completed within 30 calendar days after receipt of the plans by the division. The responsibility for submission and retrieval of the plans may not be imposed on the design architect or engineer, but is the responsibility of the two agencies. If the division determines that a construction or renovation plan is not in compliance with uniform firesafety standards, the division may issue an order to cease all construction or renovation activities until compliance is obtained, except those activities required to achieve compliance. The lessor shall provide the department with documentation certifying that the facility meets all of the uniform firesafety standards. The cost of all modifications or renovations made for the purpose of bringing leased property into compliance with the uniform firesafety standards is borne by the lessor. The state may not take occupancy without the division’s final approval.

(6) Before construction or substantial improvement of any state-owned building is commenced, the department must determine that the proposed construction or substantial improvement complies with the flood plain management criteria for mitigation of flood hazards, as prescribed in the October 1, 1986, rules and regulations of the Federal Emergency Management Agency, and the department shall monitor the project to assure compliance with the criteria. The department shall adopt rules necessary to ensure that all proposed state construction and substantial improvement of state buildings in designated flood-prone areas complies with the flood plain management criteria. If the department determines that a construction or substantial improvement project is not in compliance with such criteria, the department may issue an order to cease all construction or improvement activities until compliance is obtained, except those activities required to achieve such compliance.

(7) This section does not apply to any lease having a term of less than 120 consecutive days for the purpose of securing the one-time special use of the leased property.

(8) An agency may not enter into more than one lease for space in the same privately owned facility or complex within any 12-month period except upon competitive solicitation.

(9) Specialized educational facilities, excluding classrooms, are exempt from the competitive bid requirements for leasing pursuant to this section if the executive head of a state agency certifies in writing that the facility is available from a single source and that the competitive bid requirements would be detrimental to the state. Such certification must include documentation of evidence of steps taken to determine sole-source status.

(10) The department may approve emergency acquisition of space without competitive bids if existing state-owned or state-leased space is destroyed or rendered uninhabitable by an act of God, fire, malicious destruction, or structural failure, or by legal action, or if the agency head certifies in writing that there is an immediate danger to the public health, safety, or welfare, or if other substantial loss to the state requires emergency action and the chief administrator of the state agency or the chief administrator’s designated representative certifies in writing that no other agency-controlled space is available to meet this emergency need; however, the lease for such space may not exceed 11 months. If the lessor elects not to replace or renovate the destroyed or uninhabitable facility, the agency shall procure the needed space by competitive bid in accordance with s. 255.249(9)(b). If the lessor elects to replace or renovate the destroyed or uninhabitable facility and the construction or renovations will not be complete at the end of the 11-month lease, the agency may modify the lease to extend it on a month-to-month basis for up to 6 months to allow completion of such construction or renovations.

(11) In any leasing of space which occurs without competition, the individuals taking part in the development or selection of criteria for evaluation, in the evaluation, and in the award processes must attest in writing that they are independent of, and have no conflict of interest in, the entities evaluated and selected.

Legislative History

s. 22, ch. 69-106; s. 5, ch. 75-70; s. 12, ch. 75-151; s. 1, ch. 77-174; s. 2, ch. 77-280; s. 3, ch. 78-166; s. 1, ch. 80-55; s. 1, ch. 80-294; s. 1, ch. 81-25; s. 1, ch. 82-191; s. 3, ch. 84-143; s. 9, ch. 84-321; s. 35, ch. 85-349; s. 2, ch. 88-202; s. 8, ch. 88-409; s. 3, ch. 90-224; s. 179, ch. 92-279; s. 55, ch. 92-326; s. 12, ch. 94-265; s. 3, ch. 94-333; s. 850, ch. 95-148; s. 44, ch. 96-399; s. 60, ch. 96-410; s. 22, ch. 97-94; s. 12, ch. 98-279; s. 22, ch. 99-399; s. 14, ch. 2000-141; s. 3, ch. 2000-172; s. 43, ch. 2001-61; s. 34, ch. 2001-186; s. 1, ch. 2001-267; s. 3, ch. 2001-372; s. 20, ch. 2006-26; ss. 18, 19, 54, ch. 2007-73; s. 3, ch. 2007-220; s. 3, ch. 2009-77; s. 11, ch. 2010-151; s. 6, ch. 2013-152.