Bill Text: CA SB1433 | 2013-2014 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Local Agency Public Construction Act: transit design-build contracts.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2014-09-30 - Chaptered by Secretary of State. Chapter 929, Statutes of 2014. [SB1433 Detail]
Download: California-2013-SB1433-Amended.html
Bill Title: Local Agency Public Construction Act: transit design-build contracts.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2014-09-30 - Chaptered by Secretary of State. Chapter 929, Statutes of 2014. [SB1433 Detail]
Download: California-2013-SB1433-Amended.html
BILL NUMBER: SB 1433 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 19, 2014
AMENDED IN ASSEMBLY AUGUST 7, 2014
INTRODUCED BY Senator Hill
FEBRUARY 21, 2014
An act to amend Sections 20209.5, 20209.7, 20209.11, and 20209.14
of, to add and repeal Article 6.9 (commencing with Section 20209.15)
of Chapter 1 of Part 3 of Division 2 of, and to repeal Section
20209.12 of, the Public Contract Code, relating to transit
contracts, and making an appropriation therefor.
contracts.
LEGISLATIVE COUNSEL'S DIGEST
SB 1433, as amended, Hill. Local Agency Public Construction Act:
transit design-build contracts. contracts:
transit operators.
Existing law
The Local Agency Public Construction Act authorizes a
transit operator to enter into a design-build contract, as specified.
Existing law The act defines a
"transit operator" as a transit district, included transit district,
municipal operator, included municipal operator, or transit
development board, a consolidated agency, or any joint powers
authority formed to provide transit service. Existing law
The act establishes conditions for the selection
of the design-build entity relating to the dollar amounts
of the contracts. Existing law requires a transit operator, as
defined, awarding a contract for a public works project pursuant to
these provisions, to reimburse the Department of Industrial Relations
for costs of performing prevailing wage monitoring and enforcement
of the public works project and would require moneys collected to be
deposited into the State Public Works Enforcement Fund, a
continuously appropriated fund. Existing law and
establishes monetary thresholds for the use of a design-build
contract. The act repeals these provisions on January 1, 2015.
This bill would include in the definition of "transit operator"
any other local or regional agency responsible for the construction
of transit projects, thereby extending the design-build procurement
authorization. The bill would eliminate the requirement that
the project cost exceed a specified amount. revise
the monetary thresholds to generally require that project costs
exceed $1,000,000 for the use of a design-build contract. The
bill would provide that these provisions apply to project
solicitations that commenced prior to January 1, 2015, and would
extend the repeal date to January 1, 2017. These bill would,
The bill, for project solicitations that
commence on or after January 1, 2015, would establish
conditions for a "transit operator," as defined, to select a
design-build entity for a design-build project, and would repeal
these provisions on January 1, 2024.
The bill, by extending the design-build procurement authorization
and by extending the deposit of moneys into the State Public Works
Enforcement Fund, a continuously appropriated fund, would make an
appropriation.
The bill, by extending the design-build procurement authorization,
would impose the statement of qualifications requirement upon
transit operators, subject to penalty of perjury, thereby creating a
new crime and imposing a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: yes no
. Fiscal committee: yes. State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 20209.5 of the Public Contract Code is amended
to read:
20209.5. As used in this article, the following terms have the
following meanings:
(a) "Best value" means a value determined by objective criteria
and may include, but is not limited to, price, features, functions,
life-cycle costs, and other criteria deemed appropriate by the
transit district.
(b) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(c) "Design-build entity" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting, architectural, and engineering services as needed
pursuant to a design-build contract.
(d) "RFP" means request for proposal.
(e) "Transit operator" means any transit district, included
transit district, municipal operator, included municipal operator,
transit development board, a consolidated agency as described in
Section 132353.1 of the Public Utilities Code, any joint powers
authority formed to provide transit service, or any other local or
regional agency responsible for the construction of transit projects,
including, but not limited to, a county transportation commission
created by Section 130050 of the Public Utilities Code.
SEC. 2. Section 20209.7 of the Public Contract
Code is amended to read:
20209.7. Design-build projects shall progress in a three-step
process, as follows:
(a) The transit operator shall prepare a set of documents setting
forth the scope of the project. The documents shall include, but are
not limited to, the size, type, and desired design character of the
buildings, transit facilities, and site, performance specifications
covering the quality of materials, equipment, and workmanship,
preliminary plans or building layouts, or any other information
deemed necessary to describe adequately the transit operator's needs.
The performance specifications and any plans shall be prepared by a
design professional duly licensed or registered in California.
(b) Any architectural or engineering firm or individual retained
by the transit operator to assist in the development criteria or
preparation of the request for proposal (RFP) is not eligible to
participate in the competition for the design-build entity.
(c) (1) For contracts for public works projects awarded prior to
the effective date of the regulations adopted by the Department of
Industrial Relations pursuant to subdivision (g) of Section 1771.5 of
the Labor Code, the transit operator shall establish and enforce a
labor compliance program containing the requirements outlined in
Section 1771.5 of the Labor Code or shall contract with a third party
to operate this labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code. This requirement shall
not apply to projects where the transit operator or the design-build
entity has entered into a collective bargaining agreement that binds
all of the contractors performing work on the project, or to any
other project of the transit operator that is not design-build.
(2) For contracts for public works projects awarded on or after
the effective date of the regulations adopted by the Department of
Industrial Relations pursuant to subdivision (g) of Section 1771.5 of
the Labor Code, the transit operator shall reimburse the department
for its reasonable and directly related costs of performing
prevailing wage monitoring and enforcement on public works projects
pursuant to rates established by the department as set forth in
subdivision (h) of Section 1771.5 of the Labor Code. All moneys
collected pursuant to this subdivision shall be deposited in the
State Public Works Enforcement Fund created by Section 1771.3 of the
Labor Code, and shall be used only for enforcement of prevailing wage
requirements on those projects.
(3) In lieu of reimbursing the Department of Industrial Relations
for its reasonable and directly related costs of performing
monitoring and enforcement on public works projects, the transit
operator may elect to continue operating an existing previously
approved labor compliance program to monitor and enforce prevailing
wage requirements on the project if it has either not contracted with
a third party to conduct its labor compliance program and requests
and receives approval from the department to continue its existing
program or it enters into a collective bargaining agreement that
binds all of the contractors performing work on the project and that
includes a mechanism for resolving disputes about the payment of
wages.
(d) (1) Each RFP shall identify the basic scope and needs of the
project or contract, the expected cost range, and other information
deemed necessary by the contracting agency to inform interested
parties of the contracting opportunity.
(2) Each RFP shall invite interested parties to submit competitive
sealed proposals in the manner prescribed by the contracting agency.
(3) Each RFP shall include a section identifying and describing:
(A) All significant factors that the agency reasonably expects to
consider in evaluating proposals, including cost or price and all
nonprice-related factors.
(B) The methodology and rating or weighting process that will be
used by the agency in evaluating competitive proposals and
specifically whether proposals will be rated according to numeric or
qualitative values.
(C) The relative importance or weight assigned to each of the
factors identified in the RFP. If a nonweighted system is used, the
agency shall specifically disclose whether all evaluation factors
other than cost or price, when combined, are any of the following:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(D) If the contracting agency wishes to reserve the right to hold
discussions or negotiations with offerers, it shall specify the same
in the RFP and shall publish separately or incorporate into the RFP
applicable rules and procedures to be observed by the agency to
ensure that any discussions or negotiations are conducted in a fair
and impartial manner.
(e) (1) The transit operator shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the Director of Industrial Relations. The standardized
questionnaire shall not require prospective bidders to disclose any
violations of Chapter 1 (commencing with Section 1720) of Part 7 of
Division 2 of the Labor Code committed prior to January 1, 1998, if
the violation was based on a subcontractor's failure to comply with
these provisions and the bidder had no knowledge of the subcontractor'
s violations and the bidder complied with the conditions set forth in
subdivision (b) of Section 1775 of the Labor Code. In preparing the
questionnaire, the director shall consult with the construction
industry, building trades, transit operators, and other affected
parties. This questionnaire shall require information relevant to the
architecture or engineering firm that will be the lead on the
design-build project. The questionnaire shall include, but is not
limited to, all of the following:
(A) A listing of all the contractors that are part of the
design-build entity.
(B) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity to complete, projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project.
(C) The licenses, registrations, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(D) Evidence that establishes that the design-build entity has the
capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance, as well as a
financial statement that assures the transit operator that the
design-build entity has the capacity to complete the project.
(E) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code or the
federal Occupational Safety and Health Act of 1970 (Public Law
91-596), settled against any member of the design-build entity, and
information concerning a contractor member's workers' compensation
experience history and worker safety program.
(F) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance where an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found by an awarding body not to be a responsible bidder.
(G) Any instance where the entity, its owner, officers, or
managing employees defaulted on a construction contract.
(H) Any violations of the Contractors' State License Law (Chapter
9 (commencing with Section 7000) of Division 3 of the Business and
Professions Code), excluding alleged violations of federal or state
law, including the payment of wages, benefits, apprenticeship
requirements, or personal income tax withholding, or of Federal
Insurance Contribution Act (FICA) withholding requirements settled
against any member of the design-build entity.
(I) Information concerning the bankruptcy or receivership of any
member of the entity, and information concerning all legal claims,
disputes, or lawsuits arising from any construction project of any
member of the entity during the past three years, including
information concerning any work completed by a surety.
(J) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members who will participate as
subcontractors in the design-build contract.
(K) Information concerning all settled adverse claims, disputes,
or lawsuits between the owner of a public works project and any
member of the design-build entity during the five-year period
immediately preceding submission of a bid pursuant to this section,
in which the claim, settlement, or judgment exceeds fifty thousand
dollars ($50,000). Information shall also be provided concerning any
work completed by a surety during this period.
(L) In the case of a partnership or other association that is not
a legal entity, a copy of the agreement creating the partnership or
association and specifying that all partners or association members
agree to be liable for full performance under the design-build
contract.
(2) The information required pursuant to this subdivision shall be
verified under oath by the entity and its members in the manner in
which civil pleadings in civil actions are verified. Information that
is not a public record pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code) shall not be open to public inspection.
(f) The transit operator shall establish a procedure for final
selection of the design-build entity.
(g) Except as provided in this section, nothing in this act shall
be construed to affect the application of any other law.
SEC. 2. Section 20209.7 of the Public
Contract Code is amended to read:
20209.7. Design-build projects shall progress in a three-step
process, as follows:
(a) The transit operator shall prepare a set of documents setting
forth the scope of the project. The documents shall include, but are
not limited to, the size, type, and desired design character of the
buildings, transit facilities, and site, performance specifications
covering the quality of materials, equipment, and workmanship,
preliminary plans or building layouts, or any other information
deemed necessary to describe adequately the transit operator's needs.
The performance specifications and any plans shall be prepared by a
design professional duly licensed or registered in California.
(b) Any architectural or engineering firm or individual retained
by the transit operator to assist in the development criteria or
preparation of the request for proposal (RFP) is not eligible to
participate in the competition for the design-build entity.
(c) (1) For contracts for public works projects awarded prior to
January 1, 2012, the transit operator shall establish and enforce a
labor compliance program containing the requirements outlined in
Section 1771.5 of the Labor Code or shall contract with a third party
to operate this labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code. This requirement shall
not apply to projects where the transit operator or the design-build
entity has entered into a collective bargaining agreement that binds
all of the contractors performing work on the project, or to any
other project of the transit operator that is not design-build.
(2) For contracts for public works projects awarded on or after
January 1, 2012, the project shall be subject to the requirements of
Section 1771.4 of the Labor Code.
(d) (1) Each RFP shall identify the basic scope and needs of the
project or contract, the expected cost range, and other information
deemed necessary by the contracting agency to inform interested
parties of the contracting opportunity.
(2) Each RFP shall invite interested parties to submit competitive
sealed proposals in the manner prescribed by the contracting agency.
(3) Each RFP shall include a section identifying and describing:
(A) All significant factors that the agency reasonably expects to
consider in evaluating proposals, including cost or price and all
nonprice-related factors.
(B) The methodology and rating or weighting process that will be
used by the agency in evaluating competitive proposals and
specifically whether proposals will be rated according to numeric or
qualitative values.
(C) The relative importance or weight assigned to each of the
factors identified in the RFP. If a nonweighted system is used, the
agency shall specifically disclose whether all evaluation factors
other than cost or price, when combined, are any of the following:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(D) If the contracting agency wishes to reserve the right to hold
discussions or negotiations with offerors, it shall specify the same
in the RFP and shall publish separately or incorporate into the RFP
applicable rules and procedures to be observed by the agency to
ensure that any discussions or negotiations are conducted in a fair
and impartial manner.
(e) (1) The transit operator shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the Director of Industrial Relations. The standardized
questionnaire shall not require prospective bidders to disclose any
violations of Chapter 1 (commencing with Section 1720) of Part 7 of
Division 2 of the Labor Code committed prior to January 1, 1998, if
the violation was based on a subcontractor's failure to comply with
these provisions and the bidder had no knowledge of the subcontractor'
s violations and the bidder complied with the conditions set forth in
subdivision (b) of Section 1775 of the Labor Code. In preparing the
questionnaire, the director shall consult with the construction
industry, building trades, transit operators, and other affected
parties. This questionnaire shall require information relevant to the
architecture or engineering firm that will be the lead on the
design-build project. The questionnaire shall include, but is not
limited to, all of the following:
(A) A listing of all the contractors that are part of the
design-build entity.
(B) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity to complete, projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project.
(C) The licenses, registrations, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(D) Evidence that establishes that the design-build entity has the
capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance, as well as a
financial statement that assures the transit operator that the
design-build entity has the capacity to complete the project.
(E) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code or the
federal Occupational Safety and Health Act of 1970 (Public Law
91-596), settled against any member of the design-build entity, and
information concerning a contractor member's workers' compensation
experience history and worker safety program.
(F) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance where an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found by an awarding body not to be a responsible bidder.
(G) Any instance where the entity, its owner, officers, or
managing employees defaulted on a construction contract.
(H) Any violations of the Contractors' State License Law (Chapter
9 (commencing with Section 7000) of Division 3 of the Business and
Professions Code), excluding alleged violations of federal or state
law, including the payment of wages, benefits, apprenticeship
requirements, or personal income tax withholding, or of Federal
Insurance Contribution Act (FICA; 26 U.S.C. Sec. 3101 et seq.)
withholding requirements settled against any member of the
design-build entity.
(I) Information concerning the bankruptcy or receivership of any
member of the entity, and information concerning all legal claims,
disputes, or lawsuits arising from any construction project of any
member of the entity during the past three years, including
information concerning any work completed by a surety.
(J) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members who will participate as
subcontractors in the design-build contract.
(K) Information concerning all settled adverse claims, disputes,
or lawsuits between the owner of a public works project and any
member of the design-build entity during the five-year period
immediately preceding submission of a bid pursuant to this section,
in which the claim, settlement, or judgment exceeds fifty thousand
dollars ($50,000). Information shall also be provided concerning any
work completed by a surety during this period.
(L) In the case of a partnership or other association that is not
a legal entity, a copy of the agreement creating the partnership or
association and specifying that all partners or association members
agree to be liable for full performance under the design-build
contract.
(2) The information required pursuant to this subdivision shall be
verified under oath by the entity and its members in the manner in
which civil pleadings in civil actions are verified. Information that
is not a public record pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code) shall not be open to public inspection.
(f) (1) The transit operator shall establish
a procedure for final selection of the design-build entity.
Selection shall be subject to the following conditions:
Except as provided in paragraph (2), in no case shall the
transit operator award a contract pursuant to this article unless
that project exceeds one million dollars ($1,000,000) in
cost.
(1) In no case shall the transit operator award a contract to a
design-build entity pursuant to this article for a capital
maintenance or capacity-enhancing rail project unless that project
exceeds twenty-five million dollars ($25,000,000) in cost.
(2) For nonrail transit projects that exceed two million five
hundred thousand dollars ($2,500,000), the transit operator may award
the project to the lowest responsible bidder or by using the best
value method.
(3)
(2) For the acquisition and installation of technology
applications or surveillance equipment designed to enhance safety,
disaster preparedness, and homeland security efforts, there shall be
no cost threshold and the transit operator may award the contract to
the lowest responsible bidder or by using the best value method.
(g) Except as provided in this section, nothing in this act shall
be construed to affect the application of any other law.
SEC. 3. Section 20209.11 of the Public Contract Code is amended to
read:
20209.11. The minimum performance criteria and design standards
established pursuant to this article by a transit operator for
quality, durability, longevity, life-cycle costs, and other criteria
deemed appropriate by the transit operator shall be adhered to by the
design-build entity. Any deviations from those standards may only be
allowed by written consent of the transit operator. The transit
operator may retain the services of a design professional through the
course of the project in order to ensure compliance with this
article.
SEC. 4. Section 20209.12 of the Public Contract Code is repealed.
SEC. 5. Section 20209.14 of the Public Contract Code is amended to
read:
20209.14. (a) This article shall remain in effect only until
January 1, 2017, and as of that date is repealed.
20209.14. (a) This article shall remain in effect
only until January 1, 2017, and as of that date is repealed, unless
a later enacted statute, that is enacted before January 1, 2017,
deletes or extends that date.
(b) This article shall only apply to transit operators that begin
a project solicitation before January 1, 2015. A transit operator
that begins project solicitation on or after January 1, 2015, is
subject to Article 6.9 (commencing with Section 20209.15).
SEC. 6. Article 6.9 (commencing with Section 20209.15) is added to
Chapter 1 of Part 3 of Division 2 of the Public Contract Code, to
read:
Article 6.9. Transit Design-Build Projects
20209.15. This article shall only apply to transit operators that
begin a project solicitation on or after January 1, 2015. A transit
operator that begins project solicitation before January 1, 2015, is
subject to Article 6.8 (commencing with Section 20209.5).
20209.16. For purposes of this article, the following definitions
apply:
(a) "Best value" means a value determined by evaluation of
objective criteria related to price, features, functions, life-cycle
costs, experience, and past performance. A best value determination
may involve the selection of the lowest cost proposal meeting the
interests of the local agency and meeting the objectives of the
project, selection of the best proposal for a stipulated sum
established by the procuring agency, or a tradeoff between price and
other specified factors.
(b) "Construction subcontract" means each subcontract awarded by
the design-build entity to a subcontractor that will perform work or
labor or render service to the design-build entity in or about the
construction of the work or improvement, or a subcontractor licensed
by the State of California that, under subcontract to the
design-build entity, specially fabricates and installs a portion of
the work or improvement according to detailed drawings contained in
the plans and specifications produced by the design-build team.
(c) "Design-build" means a project delivery process in which both
the design and construction of a project are procured from a single
entity.
(d) "Design-build entity" means a corporation, limited liability
company, partnership, joint venture, or other legal entity that is
able to provide appropriately licensed contracting, architectural,
and engineering services as needed pursuant to a design-build
contract.
(e) "Design-build team" means the design-build entity itself and
the individuals and other entities identified by the design-build
entity as members of its team. Members shall include the general
contractor and, if utilized in the design of the project, all
electrical, mechanical, and plumbing contractors.
(f) "Transit operator" means any transit district, included
transit district, municipal operator, included municipal operator,
any consolidated agency, as described
in Section 132353.1 of the Public Utilities Code,
any joint powers authority formed to provide transit service, any
county transportation commission created pursuant to Section 130050
of the Public Utilities Code, or any other local or regional agency,
responsible for the construction of transit projects.
(g) "Project" means a transit capital project, but does not
include state highway construction or local street and road projects.
20209.17. (a) Except as provided in subdivision (b), and
notwithstanding any other law, a transit operator, with approval of
its governing body, may procure design-build contracts for public
works projects in excess of one million dollars ($1,000,000),
awarding the contract to either the low bid or the best value,
provided that this article shall not apply to any projects on the
state highway system.
(b) For the acquisition and installation of technology
applications or surveillance equipment designed to enhance safety,
disaster preparedness, and homeland security efforts, there shall be
no cost threshold and the transit operator may award the contract to
the lowest responsible bidder or by using the best value method.
(c) The transit operator shall develop guidelines for a standard
organizational conflict-of-interest policy, consistent with
applicable law, regarding the ability of a person or entity, that
performs services for the transit operator relating to the
solicitation of a design-build project, to submit a proposal as a
design-build entity, or to join a design-build team. This
conflict-of-interest policy shall apply to each transit operator
entering into design-build contracts authorized under this article.
20209.18. The procurement process for the design-build projects
shall progress as follows:
(a) (1) The local agency shall prepare a set of documents setting
forth the scope and estimated price of the project. The documents may
include, but need not be limited to, the size, type, and desired
design character of the project, performance specifications covering
the quality of materials, equipment, workmanship, preliminary plans
or building layouts, or any other information deemed necessary to
describe adequately the transit operator's needs. The performance
specifications and any plans shall be prepared by a design
professional who is duly licensed and registered in California.
(2) The documents shall not include a design-build-operate
contract for any project. The documents, however, may include
operations during a training or transition period but shall not
include long-term operations for any project.
(b) Based on the documents prepared under subdivision (a), the
transit operator shall prepare and issue a request for qualifications
in order to prequalify or short-list the design-build entities whose
proposals shall be evaluated for final selection. The request for
qualifications shall include, but need not be limited to, the
following elements:
(1) Identification of the basic scope and needs of the project or
contract, the expected cost range, the methodology that will be used
by the transit operator to evaluate proposals, the procedure for
final selection of the design-build entity, and any other information
deemed necessary by the transit operator to inform interested
parties of the contracting opportunity.
(2) Significant factors that the transit operator reasonably
expects to consider in evaluating qualifications, including technical
design and construction expertise, acceptable safety record, and all
other nonprice-related factors.
(3) A standard template request for statements of qualifications
prepared by the transit operator. In preparing the standard template,
the transit operator may consult with the construction industry, the
building trades and surety industry, and other transit operators
interested in using the authorization provided by this article. The
template shall require the following information:
(A) If the design-build entity is a privately held corporation,
limited liability company, partnership, or joint venture, a listing
of all of the shareholders, partners, or members known at the time of
statement of qualification submission who will perform work on the
project.
(B) Evidence that the members of the design-build team have
completed, or demonstrated the experience, competency, capability,
and capacity to complete projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project, and a financial statement that
ensures that the design-build entity has the capacity to complete the
project.
(C) The licenses, registration, and credentials required to design
and construct the project, including, but not limited to,
information on the revocation or suspension of any license,
credential, or registration.
(D) Evidence that establishes that the design-build entity has the
capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance.
(E) Information concerning workers' compensation experience
history and a worker safety program.
(F) If the proposed design-build entity is a corporation, limited
liability company, partnership, joint venture, or other legal entity,
a copy of the organizational documents or agreement committing to
form the organization.
(G) An acceptable safety record. A proposer's safety record shall
be deemed acceptable if its experience modification rate for the most
recent three-year period is an average of 1.00 or less, and its
average total recordable injury or illness rate and average lost work
rate for the most recent three-year period does not exceed the
applicable statistical standards for its business category or if the
proposer is a party to an alternative dispute resolution system as
provided for in Section 3201.5 of the Labor Code.
(4) (A) The information required under this subdivision shall be
certified under penalty of perjury by the design-build entity and its
general partners or joint venture members.
(B) Information required under this subdivision that is not
otherwise a public record under the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code) shall not be open to public inspection.
(c) A design-build entity shall not be prequalified or shortlisted
unless the entity provides an enforceable commitment to the transit
operator that the entity and its subcontractors at every tier will
use a skilled and trained workforce to perform all work on the
project or contract that falls within an apprenticeable occupation in
the building and construction trades.
(1) For purposes of this subdivision:
(A) "Apprenticeable occupation" means an occupation for which the
chief had approved an apprenticeship program pursuant to Section 3075
of the Labor Code prior to January 1, 2014.
(B) "Skilled and trained workforce" means a workforce that meets
all of the following conditions:
(i) All the workers are either skilled journeypersons or
apprentices registered in an apprenticeship program approved by the
Chief of the Division of Apprenticeship Standards.
(ii) (I) As of January 1, 2016, at least 20 percent of the skilled
journey persons employed to perform work on the contract or project
by the entity and each of its subcontractors at every tier are
graduates of an apprenticeship program for the applicable occupation
that was either approved by the Chief of the Division of
Apprenticeship Standards pursuant to Section 3075 of the Labor Code
or located outside California and approved for federal purposes
pursuant to the apprenticeship regulations adopted by the federal
Secretary of Labor.
(II) As of January 1, 2017, at least 30 percent of the skilled
journey persons employed to perform work on the contract or project
by the entity and each of its subcontractors at every tier are
graduates of an apprenticeship program for the applicable occupation
that was either approved by the Chief of the Division of
Apprenticeship Standards pursuant to Section 3075 of the Labor Code
or located outside California and approved for federal purposes
pursuant to the apprenticeship regulations adopted by the federal
Secretary of Labor.
(III) As of January 1, 2018, at least 40 percent of the skilled
journey persons employed to perform work on the contract or project
by the entity and each of its subcontractors at every tier are
graduates of an apprenticeship program for the applicable occupation
that was either approved by the Chief of the Division of
Apprenticeship Standards pursuant to Section 3075 of the Labor Code
or located outside California and approved for federal purposes
pursuant to the apprenticeship regulations adopted by the federal
Secretary of Labor.
(IV) As of January 1, 2019, at least 50 percent of the skilled
journey persons employed to perform work on the contract or project
by the entity and each of its subcontractors at every tier are
graduates of an apprenticeship program for the applicable occupation
that was either approved by the Chief of the Division of
Apprenticeship Standards pursuant to Section 3075 of the Labor Code
or located outside California and approved for federal purposes
pursuant to the apprenticeship regulations adopted by the federal
Secretary of Labor.
(V) As of January 1, 2020, at least 60 percent of the skilled
journey persons employed to perform work on the contract or project
by the entity and each of its subcontractors at every tier are
graduates of an apprenticeship program for the applicable occupation
that was either approved by the Chief of the Division of
Apprenticeship Standards pursuant to Section 3075 of the Labor Code
or located outside California and approved for federal purposes
pursuant to the apprenticeship regulations adopted by the federal
Secretary of Labor.
(iii) For an apprenticeable occupation in which no apprenticeship
program had been approved by the chief prior to January 1, 1995, up
to one-half of the graduation percentage requirement in subclause (I)
of clause (ii) may be satisfied by skilled journeypersons who
commenced working in the apprenticeable occupation prior to the chief'
s approval of an apprenticeship program for that occupation in the
county in which the project is located.
(C) "Skilled journey person" means a worker who either:
(i) Graduated from an apprenticeship program for the applicable
occupation that was approved by the chief or located outside
California and approved for federal purposes pursuant to the
apprenticeship regulations adopted by the federal Secretary of Labor.
(ii) Has at least as many hours of on-the-job experience in the
applicable occupation as would be required to graduate from an
apprenticeship program for the applicable occupation that is approved
by the chief.
(2) An entity's commitment that a skilled and trained workforce
will be used to perform the project or contract may be established by
any of the following:
(A) The entity's agreement with the transit operator that the
entity and its subcontractors at every tier will comply with the
requirements of this subdivision and that the entity will provide the
transit operator with evidence, on a monthly basis while the project
or contract is being performed, that the entity and its
subcontractors are complying with the requirements of this
subdivision.
(B) If the transit operator has entered into a project labor
agreement that will bind all contractors and subcontractors
performing work on the project or contract and that includes the
requirements of this subdivision, the entity's agreement that it will
become a party to that project labor agreement.
(C) Evidence that the entity has entered into a project labor
agreement that includes the requirements of this subdivision and that
will bind the entity and all its subcontractors at every tier
performing the project or contract.
(d) Based on the documents prepared as described in subdivision
(a), the transit operator shall prepare a request for proposals that
invites prequalified or short-listed entities to submit competitive
sealed proposals in the manner prescribed by the transit operator.
The request for proposals shall include, but need not be limited to,
the following elements:
(1) Identification of the basic scope and needs of the project or
contract, the estimated cost of the project, the methodology that
will be used by the transit operator to evaluate proposals, whether
the contract will be awarded on the basis of low bid or best value,
and any other information deemed necessary by the transit operator to
inform interested parties of the contracting opportunity.
(2) Significant factors that the transit operator reasonably
expects to consider in evaluating proposals, including, but not
limited to, cost or price and all nonprice-related factors.
(3) The relative importance or the weight assigned to each of the
factors identified in the request for proposals.
(4) Where a best value selection method is used, the transit
operator may reserve the right to request proposal revisions and hold
discussions and negotiations with responsive proposers, in which
case the transit operator shall so specify in the request for
proposals and shall publish separately or incorporate into the
request for proposals applicable procedures to be observed by the
transit operator to ensure that any discussions or negotiations are
conducted in good faith.
(e) For those projects utilizing low bid as the final selection
method, the competitive bidding process shall result in lump-sum bids
by the prequalified or short-listed design-build entities, and
awards shall be made to the design-build entity that is the lowest
responsible bidder.
(f) For those projects utilizing best value as a selection method,
the design-build competition shall progress as follows:
(1) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposals. The following minimum factors, however, shall
be weighted as deemed appropriate by the transit operator:
(A) Price, unless a stipulated sum is specified .
(B) Technical design and construction expertise.
(C) Life-cycle costs over 15 or more years.
(2) Pursuant to subdivision (d), the transit operator may hold
discussions or negotiations with responsive proposers using the
process articulated in the transit operator's request for proposals.
(3) When the evaluation is complete, the responsive proposers
shall be ranked based on a determination of value provided, provided
that no more than three proposers are required to be ranked.
(4) The award of the contract shall be made to the responsible
design-build entity whose proposal is determined by the transit
operator to have offered the best value to the public.
(5) Notwithstanding any other provision of this code, upon
issuance of a contract award, the transit operator shall publicly
announce its award, identifying the design-build entity to which the
award is made, along with a statement regarding the basis of the
award.
(6) The statement regarding the transit operator's contract award,
described in paragraph (5), and the contract file shall provide
sufficient information to satisfy an external audit.
20209.19. (a) The design-build entity shall provide payment and
performance bonds for the project in the form and in the amount
required by the transit operator, and issued by a California admitted
surety. The amount of the payment bond shall not be less than the
amount of the performance bond.
(b) The design-build contract shall require errors and omissions
insurance coverage for the design elements of the project.
(c) The transit operator shall develop a standard form of payment
and performance bond for its design-build projects.
20209.20. (a) The transit operator, in each design-build request
for proposals, may identify specific types of subcontractors that
must be included in the design-build entity statement of
qualifications and proposal. All construction subcontractors that are
identified in the proposal shall be afforded all the protections of
Chapter 4 (commencing with Section 4100) of Part 1.
(b) Following award of the design-build contract, the design-build
entity shall proceed as follows in awarding construction
subcontracts with a value exceeding one-half of 1 percent of the
contract price allocable to construction work:
(1) Provide public notice of availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the transit
operator, including a fixed date and time on which qualifications
statements, bids, or proposals will be due.
(2) Establish reasonable qualification criteria and standards.
(3) Award the subcontract either on a best value basis or to the
lowest responsible bidder. The process may include prequalification
or short-listing. The foregoing process does not apply to
construction subcontractors listed in the original proposal.
Subcontractors awarded construction subcontracts under this
subdivision shall be afforded all the protections of Chapter 4
(commencing with Section 4100) of Part 1.
20209.21. (a) If the transit operator elects to award a project
pursuant to this article, retention proceeds withheld by the transit
operator from the design-build entity shall not exceed 5 percent if a
performance and payment bond, issued by an admitted surety insurer,
is required in the solicitation of bids.
(b) In a contract between the design-build entity and a
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may not exceed the percentage specified in the contract
between the transit operator and the design-build entity. If the
design-build entity provides written notice to any subcontractor that
is not a member of the design-build entity, prior to or at the time
the bid is requested, that a bond may be required and the
subcontractor subsequently is unable or refuses to furnish a bond to
the design-build entity, then the design-build entity may withhold
retention proceeds in excess of the percentage specified in the
contract between the transit operator and the design-build entity
from any payment made by the design-build entity to the
subcontractor.
20209.22. Nothing in this article affects, expands, alters, or
limits any rights or remedies otherwise available at law.
20209.23. This article shall remain in effect only until January
1, 2024, and as of that date is repealed.
20209.23. This article shall remain in effect
only until January 1, 2024, and as of that date is repealed, unless a
later enacted statute, that is enacted before January 1, 2024,
deletes or extends that date.
SEC. 7. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
