Can a Florida town consider price along with qualifications when selecting which firms it will negotiate a construction-manager-at-risk contract with?

Plain-English summary

The Town of Palm Beach planned a $90 million underground utilities project and wanted to procure a construction-manager-at-risk (CMAR) contract using a "hybrid" two-envelope method: each respondent would submit a qualifications proposal in one envelope and a fee proposal in a separate sealed envelope. The selection committee would rank the qualifications first; the purchasing division would then open the fee envelopes, score them on a formula, add them to the qualifications scores, and rank firms by combined "final scores." Negotiations would proceed with the highest-ranked firm first.

The AG concluded the hybrid was not allowed. The Consultants' Competitive Negotiation Act (CCNA), § 287.055, forbids consideration of price during competitive selection; price may be considered only during competitive negotiation with the most-qualified firm. The town pointed to permissive language in § 255.103(2) ("may select … pursuant to the process provided by s. 287.055") to argue room for a different process, but § 255.103(5) only references § 255.20 as an alternative, and § 255.20(1)(d)3. then loops back to require contracts subject to competitive negotiation to be awarded under § 287.055. There is no statutory exit from the qualifications-first sequence.

The opinion's anchor case was City of Jacksonville v. Reynolds, Smith & Hills (Fla. 1st DCA 1982). At the time, the CCNA did not expressly bar fee quotations during selection, and the court allowed an ordinance that ranked firms partly on fees. The Legislature responded by amending § 287.055(4)(b) to expressly restrict price proposals to the post-selection competitive negotiation phase, eliminating the gap Reynolds exploited.

The opinion also follows the AG's earlier conclusion in Op. Att'y Gen. Fla. 11-21 that the Southwest Florida Water Management District had "no authority to develop a 'hybrid' model for awarding construction projects in the absence of statutory authority."

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could the town use a single combined score that mixed qualifications and price to pick the firm to negotiate with?
A: No. The AG read the CCNA, § 255.20, and § 255.103 together to require qualifications-only selection. Price could not enter the analysis until negotiation with the most-qualified firm.

Q: Did the permissive word "may" in § 255.103(2) leave room for an alternative selection method?
A: The AG acknowledged the word "may" but read § 255.103(5) as the only stated alternative, which itself referenced § 255.20. Section 255.20(1)(d)3. requires contracts subject to competitive negotiation to be awarded under § 287.055. The chain returned to qualifications-first.

Q: Why did the Legislature draw such a hard line between qualifications and price?
A: The opinion traces the rule to City of Jacksonville v. Reynolds, Smith & Hills (1982), where a fee-quotation ordinance survived because the CCNA was silent. The Legislature then amended § 287.055(4)(b) to expressly require price to be considered "only during competitive negotiations under subsection (5)."

Q: Was the CMAR responsible for design work?
A: The town said no. The opinion treated the CMAR as a construction-services contract, not a professional architectural or engineering services contract. The AG flagged in a footnote that some CMAR scopes can include design tasks that may require an architectural license.

Q: Did the opinion bind the town's preferred firm or the project itself?
A: No. AG opinions are persuasive, not binding. The opinion identified the legal posture; the town would still have to decide whether to revise the procurement to align with § 287.055's qualifications-first sequence.

Background and statutory framework

Florida procurement of professional services for public construction is governed by three interlocking statutes. The CCNA (§ 287.055) sets the qualifications-based selection plus competitive-negotiation framework for "professional services." Section 255.20 governs procurement for "public construction works" and explicitly routes construction-management-services contracts subject to competitive negotiation back into § 287.055. Section 255.103 authorizes a "construction management entity" model and points to § 287.055 as the selection process.

The pivot in the opinion is statutory cross-reference. The town tried to read a permissive opening in § 255.103, but the AG closed it by reading the three statutes "in pari materia" (citing Hernandez and Martin) and tracing the cross-references back to the CCNA.

A footnote anchored the canonical maxim: "When the controlling law directs how a thing shall be done that is, in effect, a prohibition against its being done in any other way" (Alsop v. Pierce, Fla. 1944). That maxim repeatedly appears in Florida AG opinions when local governments propose creative procedures the statutes do not enable.

Citations and references

Statutes:
- § 287.055, Fla. Stat. (Consultants' Competitive Negotiation Act)
- § 255.103, Fla. Stat. (Construction management entities)
- § 255.20, Fla. Stat. (Public construction works)

Cases:
- City of Jacksonville v. Reynolds, Smith & Hills, Architects, Engineers & Planners, Inc., 424 So. 2d 63 (Fla. 1st DCA 1982)
- City of Lynn Haven v. Bay Cty. Council of Registered Architects, Inc., 528 So. 2d 1244 (Fla. 1st DCA 1988)
- Fla. Dep't of Highway Safety & Motor Vehicles v. Hernandez, 74 So. 3d 1070 (Fla. 2011)
- Fla. Dep't of State v. Martin, 916 So. 2d 763 (Fla. 2005)
- Alsop v. Pierce, 19 So. 2d 799 (Fla. 1944)

Prior AG opinions:
- Op. Att'y Gen. Fla. 11-21 (2011) (district lacks authority for hybrid model)
- Op. Att'y Gen. Fla. 2010-20 (2010) (price not a factor in initial selection)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/hybrid-process-to-select-construction-manager
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1498

Original opinion text

March 9, 2017

Mr. John C. Randolph
Attorney for the Town of Palm Beach
Flagler Center Tower, Suite 1100
505 South Flagler Drive
West Palm Beach, Florida 33401

RE: CONSULTANTS' COMPETITIVE NEGOTIATION ACT – CCNA – CONTRACTS – CONSTRUCTION MANAGER AT RISK SERVICES – whether s. 255.103, Fla. Stat. (2016), s. 255.20, Fla. Stat. (2016), and s. 287.055, Fla. Stat. (2016), allow a local government to use a hybrid process for competitive selection of firms with whom to negotiate a construction manager at risk contract for a public construction project.

Dear Mr. Randolph:

On behalf of the Town Council, you have asked the following question:

Whether the Town of Palm Beach, in procuring the negotiated services of a construction manager at risk ("CMAR") in connection with a planned underground utilities construction project, may use an alternative to the procedures set forth in section 287.055, Florida Statutes (the "Consultants' Competitive Negotiation Act,"[1]), in which the Town would consider price, as well as qualifications, in ranking and selecting those firms with whom the Town would competitively negotiate?[2]

In sum:

Both individually and collectively, sections 255.103, 255.20, and 287.055, Florida Statutes[3] (pertaining to local government procurement of construction management services), do not authorize the use of a hybrid competitive selection process whereby the Town would evaluate both qualifications and price prior to selecting the firms with whom to negotiate a CMAR contract. As a result, the Town may not employ the proposed alternative, but must comply with the requirements of section 287.055, Florida Statutes, in its competitive procurement of a negotiated CMAR services contract in connection with its planned underground utilities construction project.

As described in section 255.103, Florida Statutes ("Construction management or program management entities"), a construction manager is "responsible for construction project scheduling and coordination in both preconstruction and construction phases and generally responsible for the successful, timely, and economical completion of the construction project."[4] The construction manager may also be at risk, as contemplated by the additional provision that "the construction management entity, after having been selected and after competitive negotiations, may be required to offer a guaranteed maximum price and a guaranteed completion date…in which case, the construction management entity must secure an appropriate surety bond pursuant to s. 255.05 and must hold construction subcontracts."[5] Although your letter does not detail the scope of construction management services the Town would seek, you indicate that the CMAR would not provide "professional engineering or architectural services," but "only…construction services[.]"[6]

As you have noted, under section 255.103, a "governmental entity"[7] "may select a construction management entity" "pursuant to the process provided by s. 287.055[,] [Florida Statutes]."[8] Section 255.103 also allows use of the procedures provided by section 255.20, Florida Statutes: "This section does not prohibit a local government from procuring construction management services…pursuant to the requirements of s. 255.20."[9] In section 255.103, no available processes other than those provided by sections 287.055 and 255.20, Florida Statutes, are described.

Section 255.20, Florida Statutes, pertains, in pertinent part, to "contracts for public construction works."[10] Although it also "expressly allows contracts for construction management services,"[11] it mandates, in subsection (1)(d)3., that, when such contracts are "subject to competitive negotiations," they "must be awarded in accordance with s. 287.055."[12]

The significance of these constraints lies in the timing authorized by statute for a procuring entity's consideration of price. Under all three statutes, when a governmental entity seeks to procure a contract for CMAR services subject to negotiation, price may not be considered in the competitive selection--but only in the competitive negotiation--phase.

Section 255.103(2), Florida Statutes (2016), allows a local government to require the construction management entity to "offer a guaranteed maximum price [or a lump-sum price] and a guaranteed completion date[,]" but only "after having been selected and after competitive negotiations[.]" Section 287.055, Florida Statutes, allows a local government to "request, accept, and consider proposals for the compensation to be paid under the contract," but, similarly, "only during competitive negotiations under subsection (5)."[13]

Section 287.055, subsection (5), provides that a local government "shall negotiate a contract with the most qualified firm for professional services at compensation which the [local government] determines is fair, competitive, and reasonable. In making such determination, the [local government] shall conduct a detailed analysis of the cost of the professional services required in addition to considering their scope and complexity."[14] Section 255.20, Florida Statutes, reiterates these same requirements by mandating that construction management services contracts "subject to competitive negotiations" "must be awarded in accordance with s. 287.055."[15]

Within this framework, you have asked whether the Town is prohibited by statute from using a competitive process in which price as well as qualifications would be evaluated before selecting the firms with whom a potential CMAR services contract would be negotiated.[16] Observing that section 255.103(2), Florida Statutes, employs the word "may" [use the section 287.055 process] rather than the word "shall," you suggest that this permissive language appears to allow use of the competitive selection alternative proposed.

While section 255.103(2), Florida Statutes, does reflect that a governmental entity "may" select a construction manager pursuant to the process provided by section 287.055, Florida Statutes, the remaining provisions of section 255.103 do not otherwise authorize the hybrid selection process you have described. Instead, the statute only provides: "This section does not prohibit a local government from procuring construction management services…pursuant to the requirements of s. 255.20."

The requirements of section 255.20(1)(d), Florida Statutes, in turn, bring the analysis back full circle to the Consultants' Competitive Negotiation Act. Based on the alternative selection method described in your letter, the proposed process would culminate in the Town's negotiation "with the highest ranked firm first and, if necessary, [the Town would] proceed to the next highest ranking." This directly implicates the mandate in section 255.20(1)(d)3. that a contract "subject to competitive negotiations…must be awarded in accordance with s. 287.055[,] [Florida Statutes]."[17]

Based on the foregoing, I am of the opinion that, both individually and collectively, sections 255.103, 255.20, and 287.055, Florida Statutes, do not allow the proposed hybrid competitive selection process in which the Town would evaluate both qualifications and price prior to selecting the firms with whom to negotiate a potential CMAR contract.[18] Because the contract for CMAR services described in your letter would be subject to competitive negotiations, the Town must utilize the selection process provided for by section 287.055, Florida Statutes.

Sincerely,

Pam Bondi
Attorney General

PB/ttlm

[1] § 287.055(1), Fla. Stat. (2016).

[2] This opinion is expressly limited to addressing the question posed in your opinion request. While you have provided this office with a copy of a request for proposals for a CMAR which was apparently used by another local government, nothing in this opinion should be understood to address or comment on the competitive selection process used by another entity.

[3] These three statutes, which cross-reference each other, must be read together to properly address the question posed. See generally Fla. Dep't of Highway Safety & Motor Vehicles v. Hernandez, 74 So. 3d 1070, 1075 (Fla. 2011), as revised on denial of reh'g (Nov. 10, 2011) (reflecting that "statutes relating to the same subject matter must be read together, or in pari materia") (citing Fla. Dep't of State v. Martin, 916 So. 2d 763, 768 (Fla. 2005) ("The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature's intent.")).

[4] § 255.103 (2), Fla. Stat. 2016).

[5] Id. (italicized emphasis added).

[6] It is therefore assumed, for purposes of this analysis, that, as posited, "only construction services are sought." Because a detailed description of the scope of services has not been provided, it is not otherwise possible to determine whether the proposed CMAR contract might comprise professional architectural or engineering services, or not.

[7] See § 255.103 (1), Fla. Stat. (2016) ("As used in this section, the term "governmental entity" means a…political subdivision of the state.").

[8] § 255.103 (2), Fla. Stat. (2016).

[9] § 255.103 (5), Fla. Stat. (2016).

[10] § 255.20(1), Fla. Stat., provides that a "political subdivision of the state seeking to construct…other public construction works must competitively award to an appropriately licensed contractor each project that is estimated…to cost more than $300,000." Id.

[11] § 255.20(1), Fla. Stat. (2016).

[12] § 255.20(1)(d)3. (italicized emphasis supplied).

[13] § 287.055 (4)(b), Fla. Stat. (2016). This restriction was added after the decision in City of Jacksonville v. Reynolds, Smith & Hills, Architects, Engineers & Planners, Inc., 424 So. 2d 63, 64 (Fla. 1st DCA 1982). In that case, the court considered a city ordinance which had been invalidated as inconsistent with the Consultants' Competitive Negotiation Act ("Act"). The ordinance established a process whereby respondents had to submit a quotation of fees which was "taken into consideration in determining the three most qualified firms before entering into competitive negotiations." At that time, the Act did not expressly restrict the request, receipt, and consideration of "proposals for the compensation to be paid under the contract" to the post-selection competitive negotiation phase, as it does now.

[14] § 287.055 (5) (a), Fla. Stat.(2016)(italicized emphasis added); cf. Fla. Att'y Gen. Op. 2010-20 (2010) ("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.").

[15] § 255.20(1)(d)3., Fla. Stat. (2016).

[16] As described in your letter, respondents would submit a qualifications proposal and, in a separate sealed envelope, would also submit a cost proposal for preconstruction services, construction services (CMAR fees), percentage of profit, cost of insurance and bond premium, general conditions, and recommended contingency.

[17] See generally Alsop v. Pierce, 19 So. 2d 799, 805 (Fla. 1944) ("When the controlling law directs how a thing shall be done that is, in effect, a prohibition against its being done in any other way.").

[18] Cf. Op. Att'y Gen. Fla. 11-21 (2011) (concluding that the Southwest Florida Water Management District was required to procure construction and construction management services contracts pursuant to the terms of § 255.20, Fla. Stat., and had "no authority to develop a 'hybrid' model for awarding construction projects in the absence of statutory authority").