The Inside Guide to FDOT Construction Contracting: Understanding Section 337.11

As the former General Counsel of the Florida Department of Transportation, I’ve guided countless contractors through FDOT’s unique procurement processes. Unlike most state agencies that operate solely under Chapter 287’s standard procurement rules, FDOT uses several distinct procurement methods governed by different statutory frameworks.

Today, I’m focusing specifically on construction contracting under Section 337.11, Florida Statutes—a process that often confuses even experienced contractors. Let’s demystify this system and provide you with the strategic insights needed to navigate it successfully.

The Big Picture: FDOT’s Procurement Universe

Before diving into construction contracting specifically, it’s important to understand how Section 337.11 fits into FDOT’s broader procurement landscape. FDOT utilizes four primary procurement methods:

1. Commodities and Contractual Services (governed by Section 287.057, F.S.)
   
   • Subject to 1% MyFloridaMarketPlace Transaction Fee
   • Advertised through the Vendor Bid System on MyFlorida.com
   • Generally doesn’t require prequalification
2. Professional Services (governed by Section 287.055, F.S. – the Consultants’ Competitive Negotiation Act)
   
   • Exempt from MyFloridaMarketPlace Transaction Fee
   • Requires annual prequalification
   • Qualifications-based selection followed by fee negotiation
   • Includes engineering, architecture, landscape architecture, surveying, mapping, planning, and right-of-way services
3. Design-Build (governed by Section 337.11, F.S.)
   
   • Exempt from MyFloridaMarketPlace Transaction Fee
   • Combines design and construction into a single contract
   • Follows specialized procurement procedures
4. Construction and Maintenance Services (governed by Section 337.11, F.S.)
   
   • Exempt from MyFloridaMarketPlace Transaction Fee
   • Managed by the Office of Contracts Administration, not the Procurement Office
   • Includes roadway/bridge construction and maintenance operations

This article focuses specifically on the Construction and Maintenance Services category, but understanding the broader procurement ecosystem helps you navigate FDOT’s various contracting opportunities.

FDOT’s Construction Contracting Authority Under 337.11

Section 337.11, Florida Statutes, gives FDOT remarkably broad authority to contract for:

• All roads designated as part of the State Highway System
• State Park Road System roads
• Any roads placed under FDOT supervision by law
• Rest areas and weigh stations
• Other structures including roads, parking areas, and supporting facilities

This expansive authority creates a self-contained procurement system with its own rules, timelines, and requirements that differ significantly from both general state procurement and other FDOT procurement methods.

The Construction Contract Advertisement Process

FDOT’s construction contract advertisement process follows a two-tier system based on contract value:

Tier 1: Contracts of $250,000 or Less

• Advertisement must appear in a newspaper with general circulation in the project’s county
• Publication must occur at least once weekly for 2+ consecutive weeks
• First publication must be at least 14 days before bid opening
• Prequalification requirements may be waived for contracts under $500,000

Tier 2: Contracts Greater Than $250,000

• Direct bid solicitation notices to all prequalified contractors
• Notices must be provided at least 2 weeks before bid opening
• Prequalification under Section 337.14 is mandatory

Unlike professional services procurements where quality and experience primarily drive selection, construction contracts are typically awarded to the “lowest responsible bidder.” In time-plus-money contracts, the award goes to the “lowest evaluated responsible bidder,” incorporating both cost and time considerations.

The “Title Vested” Requirement

One of the most misunderstood aspects of FDOT construction contracting is the “title vested” requirement. Section 337.11(3)(c) prohibits FDOT from advertising for bids until:

1. Title to all necessary rights-of-way and easements has vested in the state or a local governmental entity
2. All railroad crossing and utility agreements have been executed

There are only three exceptions:

• When title has been dedicated to the public
• When title has been acquired by prescription
• For Turnpike Enterprise projects (which are exempt from this requirement)

This requirement often explains delays between when projects appear in the work program and when they’re actually advertised for bid. Right-of-way acquisition can be time-consuming, and contractors who understand this process can better anticipate and plan for upcoming opportunities.

Construction Bid Protests: The Bond Requirement

FDOT construction bid protests follow different rules than general procurement protests, requiring protesters to post a bond at the time of filing. The bond amounts are:

• $5,000 for protests of bid solicitations requiring qualification
• The greater of $5,000 or 1% of the lowest bid for protests of bid rejections/awards requiring qualification
• $2,500 for protests not involving qualification requirements

These bonds are returned if the protestor prevails but are forfeited if the protest is found to be frivolous or improper. Additionally, only contractors certified to bid on a project under Section 337.14 can file protests on that project—a restriction that doesn’t exist in general procurement protests.

Emergency and Expedited Contracting Authority

The Secretary of Transportation has significant authority to bypass competitive bidding in certain situations:

Emergency Restoration/Repair

When competitive bidding delays would be detrimental to state interests, the Secretary can authorize direct contracting for restoration or repair of transportation facilities. Within 30 days, the Secretary must file a written statement explaining the emergency circumstances with the Governor’s office.

Maintenance Delays

When administrative challenges, bid protests, defaults, or terminations would reduce safety or hinder preservation of state investments, competitive bidding can be waived for maintenance contracts. These contracts must be interim in nature and limited to the duration necessary to complete the competitive process.

Rapid Completion Needs

For non-emergency work where rapid completion is necessary due to public concern, economy, operations, or safety, FDOT can enter contracts up to $500,000 without advertising when needed to:

• Ensure timely project completion or avoid delays
• Accomplish minor repairs where time is essential and cost savings would occur
• Complete work necessary for safe and efficient traffic flow

For these expedited contracts, FDOT must make a good faith effort to obtain at least two quotes from qualified contractors and consider disadvantaged business enterprise participation.

Design-Build Contracting

Section 337.11 provides for two types of design-build contracts:

Standard Design-Build

• Combines design and construction phases into a single contract
• Can be advertised before ROW acquisition (though construction can’t begin until title is vested)
• Requires at least three letters of interest to proceed to request for proposals
• Department may pay stipends to non-selected firms that submit responsive proposals

Phased Design-Build

• Brings the design-build firm into the project during early design stages
• Uses a two-phase selection process:
  
  1. Phase One: Qualifications-based selection
  2. Phase Two: Competitive bidding of trade subcontractor packages and negotiation of firm price
• Promotes collaboration and step-by-step progression through construction
• Allows design-build firm to participate in design development

FDOT has established detailed rules for administering both types of design-build contracts, covering everything from prequalification requirements to selection processes.

Contract Modifications: Understanding FDOT’s Three Instruments

FDOT uses three instruments to modify contracts, each with specific purposes and limitations:

1. Supplemental Agreements

• Formal written contracts executed by both contractor and FDOT
• Can clarify plans and specifications
• Address unforeseen work, grade changes, or alterations
• Change construction limits to meet field conditions
• Provide connections to existing pavements
• Settle contract claims
• Make projects functionally operational

Physical limits can only be expanded to make the project functionally operational, and such expansions cannot exceed $100,000 or 10% of the original contract price, whichever is greater.

2. Contingency Supplemental Agreements/Work Orders

• Used pursuant to contingency pay items
• Serve similar purposes as standard supplemental agreements
• Must be in written form and executed by both parties

3. Change Orders

• Cover minor changes in plans, specifications, or quantities
• Apply only when prices for affected work are already established in the contract
• Cannot extend the physical limits of the work

Understanding these distinctions is crucial because any supplemental agreement or change order that violates the statutory parameters is null, void, and unenforceable for payment—meaning contractors may not get paid for work performed under improperly executed modifications.

Contractor Payment and Subcontractor Protection

FDOT contracts include specific provisions to protect subcontractors and suppliers:

• Prime contractors must certify they’ve paid subcontractors their pro rata shares from previous progress payments before receiving new progress payments
• Primes must pay subs within 30 days of receiving payments (except final payment)
• FDOT maintains a central file of nonpayment claims
• Good cause and written notification are required for non-payment

These provisions create significant responsibilities for prime contractors and important protections for subcontractors and suppliers. FDOT takes these requirements seriously and monitors compliance closely.

Unique Aspects of FDOT Construction Contracts

Several unique aspects of FDOT construction contracts distinguish them from other procurement types:

Cost Savings Sharing

FDOT may share construction cost savings with design services consultants or CEI consultants when their input contributes to savings. This payment cannot exceed 10% of the realized savings.

Traffic Maintenance Plans

All contracts must include traffic maintenance plans showing appropriate regulatory speed signs and traffic control devices for work zones.

Marine General Liability Insurance

Bridge construction or maintenance contracts over navigable waters must require marine general liability insurance in amounts determined by FDOT.

Direct Contracting for Lighting

FDOT may enter into contracts with electric utilities for construction or maintenance of lighting on utility-owned poles within road rights-of-way without competitive bidding.

Finding and Monitoring FDOT Construction Opportunities

Unlike commodities and contractual services which are advertised through the Vendor Bid System, construction opportunities are handled differently:

1. Visit the Office of Contracts Administration Home Page on the FDOT website
2. Look for Construction letting and project information
3. Monitor both current advertisements and the Five-Year Work Program for future opportunities

Remember that construction contracts are not handled by the Procurement Office but by the Office of Contracts Administration.

Strategic Insights for Construction Contractors

Having overseen countless FDOT procurements, I can offer several strategic insights for contractors:

1. Understand the Prequalification Process

For contracts over $250,000, prequalification under Section 337.14 is mandatory. This process is administered separately from professional services prequalification and focuses on financial capability, equipment, experience, and organizational structure.

2. Monitor Both Current Advertisements and the Work Program

While current advertisements show immediate opportunities, the Five-Year Work Program provides visibility into future projects, allowing for strategic planning and resource allocation.

3. Track Right-of-Way Status

Projects in the work program that appear delayed may be waiting for right-of-way acquisition to satisfy the “title vested” requirement. Understanding this connection helps forecast when projects will actually be advertised.

4. Develop Emergency Response Capabilities

Contractors who can mobilize quickly for emergency work have opportunities for non-competitive contracts. Building a reputation for reliability and rapid response can position you for these opportunities.

5. Consider Design-Build Partnerships

As FDOT increasingly uses design-build delivery, construction contractors should develop relationships with engineering firms for potential teaming arrangements.

6. Document All Contract Changes

With strict rules governing contract modifications, comprehensive documentation of changes, justifications, and costs is essential for ensuring payment.

Common Pitfalls to Avoid

Several recurring issues create problems for FDOT construction contractors:

Pitfall #1: Ignoring FDOT-Specific Requirements

FDOT construction contracts have requirements that don’t exist in other state contracting, including specialized insurance, bonding, and certification provisions.

Pitfall #2: Missing the Bid Protest Bond Requirement

Protests must include the appropriate bond at the time of filing—a requirement unique to FDOT procurements.

Pitfall #3: Exceeding Supplemental Agreement Limits

Contract modifications that exceed statutory parameters can be deemed unenforceable, potentially leaving contractors unpaid for completed work.

Pitfall #4: Subcontractor Payment Certification Issues

Falsely certifying subcontractor payments can lead to serious consequences, including suspension from bidding.

Pitfall #5: Failing to Document Changed Conditions

Field conditions often differ from plans, but without proper documentation and timely notification, contractors may not be compensated for additional work.

The Future of FDOT Construction Contracting

Recent legislative changes indicate several trends in FDOT contracting:

1. Increased Design-Build Emphasis: FDOT continues to expand both standard and phased design-build approaches.
2. Technology Integration: Smart infrastructure components are increasingly becoming part of transportation projects.
3. Sustainability Requirements: New specifications incorporate resilience considerations, especially for coastal infrastructure.
4. Cost-Saving Incentives: FDOT is implementing more contractor incentives for innovations that reduce costs.

Conclusion: Navigating FDOT’s Construction Contracting System

Section 337.11 creates a distinct procurement system for FDOT construction contracts that differs significantly from both general state procurement and other FDOT procurement methods. Understanding these differences is essential for contractors seeking to work with FDOT.

Key takeaways include:

• FDOT construction contracting follows Section 337.11, not Chapter 287
• Construction contracts are exempt from the MyFloridaMarketPlace Transaction Fee
• The Office of Contracts Administration, not the Procurement Office, handles these contracts
• Prequalification is mandatory for contracts over $250,000
• Right-of-way acquisition often determines advertisement timing
• Contract modifications follow strict statutory parameters

While initially complex, FDOT’s construction contracting system follows logical patterns designed to balance public interest, contractor fairness, and operational efficiency. Contractors who take the time to understand these unique aspects gain a significant competitive advantage in the transportation construction market.

Need more specific guidance on FDOT contracting? Stay tuned to FloridaProcurements.com for detailed articles on specialized aspects of transportation procurement, or reach out for strategic counsel on your specific situation.