Can a Florida city pass an ordinance giving local contractors a preference in public bidding?

Plain-English summary

A state representative asked the Attorney General whether local governments could adopt ordinances favoring local contractors. The office first explained why it could not issue a formal opinion: it answers questions for the public official or entity whose powers are in question, and it lacks authority to render legal opinions to a private entity or individual, even when a public official asks on their behalf. So the response was informal comments, directed generally at municipal legislation.

The substance is favorable to local-preference ordinances. Under Article VIII, section 2(b) of the Florida Constitution and section 166.021(1), municipalities have broad home-rule power and may legislate to the same extent as the Legislature, so long as they do not enter a field preempted to the state or conflict with a statute or the Constitution. The opinion pointed out that the Legislature itself has enacted many preference statutes (for veterans, minority business enterprises, Florida-licensed brokers, in-state manufacturers, and Florida commodities), illustrating how broadly local governments might legislate in this area.

On the case law, the opinion cited City of Port Orange v. Leechase Corporation, where the Fifth DCA upheld a municipal bidding ordinance preferring bidders whose principal place of business was in the municipality, finding no constitutional or statutory public policy against it. It distinguished Marriott Corporation v. Metropolitan Dade County, where a county awarded a contract to a local bidder who was not the lowest, contrary to a bidding resolution that had no local-preference provision.

Currency note

This opinion was issued in 2011. 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: Did the Attorney General formally bless local-contractor preference ordinances?
A: No. The office declined to issue a formal opinion because the request came through a legislator on behalf of private constituents, not from the local government whose authority was at issue. The comments were informal.

Q: Do Florida cities have the power to favor local contractors?
A: The informal comments indicated they generally do, under their home-rule powers in Article VIII, section 2(b) and section 166.021(1), as long as they do not legislate in a preempted field or conflict with a statute or the Constitution.

Q: Has a court upheld a local-preference bidding ordinance?
A: Yes. The opinion cited City of Port Orange v. Leechase Corporation, where the Fifth DCA upheld an ordinance preferring bidders headquartered in the municipality, finding no contravening public policy. The court declined to second-guess the wisdom of the ordinance.

Q: When can a local preference get a contract award overturned?
A: The opinion distinguished Marriott Corporation v. Metropolitan Dade County, where a county awarded to a local bidder who was not the lowest, even though its bidding resolution required competitive bidding and contained no local-preference provision. A preference works when it is properly enacted, not improvised against existing rules.

Background and statutory framework

Florida municipalities draw broad authority from Article VIII, section 2(b) of the Florida Constitution, which the Florida Supreme Court in State v. City of Sunrise, 354 So. 2d 1206 (Fla. 1978), read as a direct grant of power to conduct municipal government, limited only by the requirement of a valid municipal purpose. Section 166.021(1) restates that home-rule grant in statute. The opinion's list of legislative preferences (veterans under section 110.2135, minority business enterprises under section 255.102, and others) was offered to show the breadth of permissible preference legislation.

The judicial guidance turned on two appellate decisions. City of Port Orange v. Leechase Corporation, 430 So. 2d 534 (Fla. 5th DCA 1983), upheld a duly enacted local-preference ordinance, while Marriott Corporation v. Metropolitan Dade County, 383 So. 2d 662 (Fla. 3d DCA 1980), reversed an award that departed from a competitive-bidding resolution with no preference provision. Read together, they suggest a local preference is defensible when it is enacted in advance and followed.

Citations and references

Statutes and constitutional provisions:

• Art. VIII, § 2(b), Fla. Const. (municipal powers)
• § 166.021, Fla. Stat. (Home rule powers)
• § 287.092, Fla. Stat. (Preference for in-state manufacturers)

Cases:

• State v. City of Sunrise, 354 So. 2d 1206 (Fla. 1978), municipal home-rule grant
• City of Port Orange v. Leechase Corporation, 430 So. 2d 534 (Fla. 5th DCA 1983), upheld local-preference ordinance
• Marriott Corporation v. Metropolitan Dade County, 383 So. 2d 662 (Fla. 3d DCA 1980), award departing from bidding rule reversed
• City of Miami Beach v. Forte Towers, Inc., 305 So. 2d 764 (Fla. 1974)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/local-governments-preference-to-local-contractors
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8156

Original opinion text

The Honorable Dana Young

Florida House of Representatives, District 57

2209 West Bay to Bay Boulevard, Suite 202

Tampa, FL 33629

Dear Representative Young:

Thank you for your letter of August 1, 2011, requesting an Attorney General's Opinion on the issue of local governments adopting preference ordinances favoring local contractors. Attorney General Bondi has asked me to respond.

Regrettably, this matter is one that may not be addressed directly at the request of someone other than the public official or entity whose powers are questioned, that is, a local governmental entity. Moreover, this office lacks the statutory authority to render legal opinions to a private entity or individual, even though a public official has made the request on their behalf.[1]

The Florida Statutes currently contain numerous examples of state statutes authorizing preferential treatment of contractors and providers of goods and services and the Florida Attorney General's Office has, on a number of occasions, issued formal opinions on this subject. I am enclosing copies of two relatively recent Attorney General Opinions on this matter and providing the following informal comments in an effort to assist you. While my comments are general and directed to municipal legislation, similar arguments could be made for other local governmental agencies.

Section 2(b), Article VIII of the Florida Constitution provides, in part that:

"Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law."

The Florida Supreme Court has stated that this constitutional provision "expressly grants to every municipality in this state authority to conduct municipal government, perform municipal functions, and render municipal services."[2] The Court stated, in State v. City of Sunrise, that the only limitation on the power of municipalities under this constitutional section is that such power must be exercised for a valid municipal purpose. As determined by the Court, "[l]egislative statutes are relevant only to determine limitations of authority" and municipalities need no further authorization from the Legislature to conduct municipal government.[3]

Pursuant to section 166.021(1), Florida Statutes, municipalities are granted "the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law." Thus, municipalities may legislate to the same extent and on the same subjects as the Legislature so long as they do not address subjects preempted to the state or county or conflicting with existing statutes or the Constitution.

The Florida Legislature has enacted numerous statutes providing preferential treatment for various groups: veterans of military service, minority business enterprises, Florida licensed professionals, and members of Indian Tribes.[4] See, e.g., s. 110.2135, Fla. Stat., Florida's veterans preference statute; s. 255.102, Fla. Stat., providing preferences for minority business enterprises; s. 255.25(3)(h), Fla. Sat., providing a preference to Florida licensed brokers; s. 285.711, Fla. Stat. (2009), Part XVIII G, Gaming Compact Between Seminole Tribe and State of Florida. Commodities manufactured, grown, or produced in Florida are given special treatment in the statutes.[5] Foreign manufacturers with factories in Florida who employ over 200 resident employees are provided preference in section 287.092, Florida Statutes. These examples are provided to illustrate the extent to which the Florida Legislature has adopted preferential legislation and to suggest how broadly local governmental entities may legislate in this area under their home rule powers.

With regard to judicial decisions addressing local preference ordinances, the Fifth District Court of Appeals case, City of Port Orange v. Leechase Corporation,[6] may provide some direction. In that case, the district court reviewed the legality of a municipality's bidding ordinance giving preference to bidders whose principal places of business were located within the municipality. The lower court had found the ordinance to be flawed as against public policy. The district court reversed, finding no contravening public policy established by the state or federal constitutions, or by state statute, that would preclude the municipality from enacting such an ordinance. Given the existence of a duly enacted ordinance that the municipality had followed, the court refused to evaluate the wisdom of the ordinance's enactment. The district court distinguished these circumstances from those in Marriott Corporation v. Metropolitan Dade County,[7] where the court reversed the county commission's award of a contract to a local bidder who was not the lowest bidder when there existed a permanent resolution (tantamount to an ordinance) providing for the competitive bidding of such contracts with no provision for local preference.

I trust that these informal comments and the copies I am enclosing may be helpful to you in advising your constituents.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/gh

Enclosures: AGO's 2002-03 and 2001-65

    Policy Statement Concerning Attorney General Opinions

[1] See Department of Legal Affairs Statement Concerning Attorney General Opinions (copy enclosed).

[2] State v. City of Sunrise, 354 So. 2d 1206, 1209 (Fla. 1978).

[3] Supra at 1209. See also City of Miami Beach v. Forte Towers, Inc., 305 So. 2d 764 (Fla. 1974).

[4] See, e.g., s. 110.2135, Fla. Stat., Florida's veterans preference statute; s. 255.102, Fla. Stat., providing preferences for minority business enterprises; s. 255.25(3)(h), Fla. Sat., providing a preference to Florida licensed brokers; s. 285.711, Fla. Stat. (2009), Part XVIII G, Gaming Compact Between Seminole Tribe and State of Florida.

[5] See s. 287.082, Fla. Stat.

[6] 430 So. 2d 534 (Fla. 5th DCA 1983).

[7] 383 So. 2d 662 (Fla. 3d DCA 1980).