Bill Text: CA AB1062 | 2009-2010 | Regular Session | Introduced
Bill Title: Design-build contracts: Labor compliance program:
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-02-02 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1062 Detail]
Download: California-2009-AB1062-Introduced.html
BILL NUMBER: AB 1062 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Garrick
FEBRUARY 27, 2009
An act to amend Sections 17250.25 and 81703 of the Education Code,
and to amend Sections 20133, 20175.2, and 20209.8 of the Public
Contract Code, relating to public contracts.
LEGISLATIVE COUNSEL'S DIGEST
AB 1062, as introduced, Garrick. Design-build contracts: Labor
compliance program: exemptions.
Existing law requires public entities to comply with certain
procedures in soliciting and evaluating bids and awarding contracts
for the erection, construction, alteration, repair, or improvement of
any public structure, building, road, or other public improvement.
Existing law authorizes school district governing boards, the
governing boards of specified community college districts and
community college facility construction projects, certain cities,
certain counties, and transit operators, to enter into design-build
contracts, as specified. Existing law requires proposals to be
evaluated and scored using certain minimum factors, including skilled
labor force availability. Existing law defines "skilled labor force
availability" to mean that an agreement exists with a registered
apprenticeship program, approved by the California Apprenticeship
Council, which has graduated apprentices in the preceding 5 years,
except as specified.
This bill would revise the definition of "skilled labor force
availability" for purposes of these provisions to a commitment to
training the future construction workforce of California through
apprenticeship, as specified, and would require the design-build
entity to provide specified information from which it intends to
request the dispatch of apprentices for use on the design-build
contract.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 17250.25 of the Education Code is amended to
read:
17250.25. Design-build projects shall progress as follows:
(a) (1) The school district governing board shall prepare a
request for proposal setting forth the scope of the project that may
include, but is not limited to, the size, type and desired design
character of the buildings 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 school district's needs.
The performance specifications and any plans shall be prepared by a
design professional duly licensed or registered in this state.
(2) Each request for proposal shall do all of the following:
(A) Identify the basic scope and needs of the project or contract,
the expected cost range, and other information deemed necessary by
the school district to inform interested parties of the contracting
opportunity.
(B) Invite interested parties to submit competitive sealed
proposals in the manner prescribed by the school district.
(C) Include a section identifying and describing the following:
(i) All significant factors and subfactors that the school
district reasonably expects to consider in evaluating proposals,
including cost or price and all nonprice related factors and
subfactors.
(ii) The methodology and rating or weighting scheme that will be
used by the school district governing board in evaluating competitive
proposals and specifically whether proposals will be rated according
to numeric or qualitative values.
(iii) The relative importance or weight assigned to each of the
factors identified in the request for proposal.
(iv) As an alternative to clause (iii), the governing board of a
school district 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.
(v) If the school district governing board wishes to reserve the
right to hold discussions or negotiations with responsive bidders, it
shall so specify in the request for proposal and shall publish
separately or incorporate into the request for proposal applicable
rules and procedures to be observed by the school district to ensure
that any discussions or negotiations are conducted in a fair and
impartial manner.
(3) Notwithstanding Section 4-315 of Title 24 of the California
Code of Regulations, an architect or structural engineer who is party
to a design-build entity may perform the services set forth in
Section 17302.
(b) (1) The school district shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the Director of the Department of Industrial Relations.
In preparing the questionnaire, the director shall consult with the
construction industry, including representatives of the building
trades, surety industry, school districts, and other affected
parties. This questionnaire shall require information including, but
not limited to, all of the following:
(A) 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, including, but not
limited to, electrical and mechanical subcontractors.
(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, registration, 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 school district 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 (Part 1 (commencing with
Section 6300) of Division 5 of the Labor Code) or the Federal
Occupational Safety and Health Act of 1970 (P.L. 91-596)
(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.
(G) 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.
(H) Any instance where the entity, its owner, officers, or
managing employees defaulted on a construction contract.
(I) Any prior 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.
(J) Information concerning the bankruptcy or receivership of any
member of the entity, including information concerning any work
completed by a surety.
(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
preceding submission of the 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.
(2) The information required pursuant to this subdivision shall be
verified under oath by the design-build 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 I of the Government Code) shall not be open to
public inspection.
(c) The school district shall establish a procedure for final
selection of the design-build entity. Selection shall be based on
either of the following criteria:
(1) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Award shall be made on the
basis of the lowest responsible bid.
(2) Notwithstanding any other provision of this code or of Section
20110 of the Public Contract Code, a school district may use a
design-build competition based upon performance and other criteria
set forth by the governing board in the solicitation of proposals.
Criteria used in this evaluation of proposals may include, but need
not be limited to, the proposed design approach, life cycle costs,
project features, and project functions. However, competitive
proposals shall be evaluated by using the criteria and source
selection procedures specifically identified in the request for
proposal. Once the evaluation is complete, all responsive bidders
shall be ranked from the most advantageous to least advantageous to
the school district.
(A) Any architectural or engineering firm or individual retained
by the governing body of the school district to assist in the
development criteria or preparation of the request for proposal shall
not be eligible to participate in the competition with the
design-build entity.
(B) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing by the school
district, to be the best value to the school district.
(C) Proposals shall be evaluated and scored solely on the basis of
the factors and source selection procedures identified in the
request for proposal. However, the following minimum factors shall
collectively represent at least 50 percent of the total weight or
consideration given to all criteria factors: price, technical
expertise, life cycle costs over 15 years or more, skilled labor
force availability, and acceptable safety record.
(D) The school district governing board shall issue a written
decision supporting its contract award and stating in detail the
basis of the award. The decision and the contract file must be
sufficient to satisfy an external audit.
(E) Notwithstanding any provision of the Public Contract Code,
upon issuance of a contract award, the school district governing
board shall publicly announce its awards identifying the contractor
to whom the award is made, the winning contractor's price proposal
and its overall combined rating on the request for proposal
evaluation factors. The notice of award shall also include the agency'
s ranking in relation to all other responsive bidders and their
respective price proposals and a summary of the school district's
rationale for the contract award.
(F) For the purposes of this chapter, "skilled labor force
availability" means that an agreement exists with a
registered apprenticeship program, approved by the California
Apprenticeship Council, which has graduated apprentices in the
preceding five years. This graduation requirement shall not apply to
programs providing apprenticeship training for any craft that has not
been deemed by the Department of Labor and the Department of
Industrial Relations to be an apprenticable craft in the two years
prior to enactment of this act a commitment to
training the future construction workforce of California through
apprenticeship, in compliance with Section 1777.5 of the Labor Code.
The design-build entity shall provide the school district governing
board with the name, address, and telephone number of the
apprenticeship program or programs approved by the Chief of the
Division of Apprent iceship Standards from which it
intends to request the dispatch of apprentices for use on the
design-build contract .
(G) For the purposes of this chapter, a bidder'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
bidder is a party to an alternative dispute resolution system as
provided for in Section 3201.5 of the Labor Code.
SEC. 2. Section 81703 of the Education Code is amended to read:
81703. Design-build projects shall progress as follows:
(a) (1) The community college district governing board shall
prepare a request for proposal setting forth the scope of the project
that may include, but is not limited to, the size, type and desired
design character of the buildings 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 community
college district's needs. The performance specifications and any
plans shall be prepared by a design professional duly licensed or
registered in this state to perform the services required by the
Field Act, as defined in Section 17281.
(2) Each request for proposal shall do all of the following:
(A) Identify the basic scope and needs of the project or contract,
the expected cost range, and other information deemed necessary by
the community college district to inform interested parties of the
contracting opportunity.
(B) Invite interested parties to submit competitive sealed
proposals in the manner prescribed by the community college district.
(C) Include a section identifying and describing the following:
(i) All significant factors and subfactors that the community
college district reasonably expects to consider in evaluating
proposals, including cost or price and all nonprice related factors
and subfactors.
(ii) The methodology and rating or weighting scheme that will be
used by the community college district governing board in evaluating
competitive proposals and specifically whether proposals will be
rated according to numeric or qualitative values.
(iii) The relative importance or weight assigned to each of the
factors identified in the request for proposal.
(iv) As an alternative to clause (iii), the governing board of a
community college district 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.
(v) If the community college district governing board wishes to
reserve the right to hold discussions or negotiations with responsive
bidders, it shall so specify in the request for proposal and shall
publish separately or incorporate into the request for proposal
applicable rules and procedures to be observed by the community
college district to ensure that any discussions or negotiations are
conducted in a fair and impartial manner.
(3) Notwithstanding Section 4-315 of Title 24 of the California
Code of Regulations, an architect or structural engineer who is party
to a design-build entity may perform the services set forth in
Section 81138.
(b) The community college district shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the Director of the Department of Industrial Relations
pursuant to subdivision (b) of Section 17250.25.
(c) The community college district shall establish a procedure for
final selection of the design-build entity. Selection shall be based
on either of the following criteria:
(1) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Award shall be made on the
basis of the lowest responsible bid.
(2) Notwithstanding any other provision of this code or of Section
20650 of the Public Contract Code, a community college district may
use a design-build competition based upon performance and other
criteria set forth by the governing board in the solicitation of
proposals. Criteria used in this evaluation of proposals may include,
but need not be limited to, the proposed design approach, life cycle
costs, project features, and project functions. However, competitive
proposals shall be evaluated by using the criteria and source
selection procedures specifically identified in the request for
proposal. Once the evaluation is complete, all responsive bidders
shall be ranked from the most advantageous to least advantageous to
the community college district. A community college district that
limits the number of responsible bidders participating in the
design-build competition, at any time after a request for a proposal
has been issued, shall use the source selection procedures and
minimum factors set forth in subparagraph (C).
(A) Any architectural firm, engineering firm, construction
manager, contractor, subcontractor, consultant, or individual
retained by the governing body of the community college district
directly or indirectly prior to the award of the project to assist in
the planning of the project, including, but not necessarily limited
to, the development criteria or preparation of the request for
proposal, shall not be eligible to participate in the competition
with the design-build entity or to perform work on the project as a
subcontractor.
(B) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing by the community
college district, to be the best value to the community college
district.
(C) Proposals shall be evaluated and scored solely on the basis of
the factors and source selection procedures identified in the
request for proposal. However, the following minimum factors shall
each represent at least 10 percent of the total weight or
consideration given to all criteria factors: price, technical
expertise, life cycle costs over 15 years or more, skilled labor
force availability, and acceptable safety record.
(D) The community college district governing board shall issue a
written decision supporting its contract award and stating in detail
the basis of the award. The decision and the contract file must be
sufficient to satisfy an external audit.
(E) Notwithstanding any provision of the Public Contract Code,
upon issuance of a contract award, the community college district
governing board shall publicly announce its awards identifying the
contractor to whom the award is made, the winning contractor's price
proposal and its overall combined rating on the request for proposal
evaluation factors. The notice of award shall also include the agency'
s ranking in relation to all other responsive bidders and their
respective price proposals and a summary of the community college
district's rationale for the contract award.
(F) For the purposes of this chapter, "skilled labor force
availability" means that an agreement exists with a
registered apprenticeship program, approved by the California
Apprenticeship Council, which has graduated apprentices in each of
the immediately preceding five years. This graduation requirement
shall not apply to programs providing apprenticeship training for any
craft that has not been deemed by the Department of Labor and the
Department of Industrial Relations to be an apprenticable craft in
the five years prior to enactment of the act adding this section
a commitment to training the future construction
workforce of California through apprenti ceship, in
compliance with Section 1777.5 of the Labor Code. The design-build
entity shall provide the community college district
governing board with the name, address, and telephone number of the
apprenticeship program or programs approved by the Chief of the
Division of Apprenticeship Standards from which it intends to request
the dispatch of apprentices for use on the design-build contract
.
(G) For the purposes of this chapter, a bidder'
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 bidder is a party to an alternative
dispute resolution system as provided for in Section 3201.5 of the
Labor Code.
(H) For the purposes of this chapter, when a
community college district determines a design-build entity's
"experience," the district shall give credit only to design-build
experience and to California school design and construction
experience.
SEC. 3. Section 20133 of the Public Contract Code is amended to
read:
20133. (a) A county, with approval of the board of supervisors,
may utilize an alternative procedure for bidding on construction
projects in the county in excess of two million five hundred thousand
dollars ($2,500,000) and may award the project using either the
lowest responsible bidder or by best value.
(b) (1) It is the intent of the Legislature to enable counties to
utilize design-build for buildings and county sanitation wastewater
treatment facilities. It is not the intent of the Legislature to
authorize this procedure for other infrastructure, including, but not
limited to, streets and highways, public rail transit, or water
resources facilities and infrastructures.
(2) The Legislature also finds and declares that utilizing a
design-build contract requires a clear understanding of the roles and
responsibilities of each participant in the design-build process.
(3) If the board of supervisors elects to proceed under this
section, the board of supervisors shall establish and enforce for
design-build projects a labor compliance program containing the
requirements outlined in Section 1771.5 of the Labor Code, or it
shall contract with a third party to operate a labor compliance
program containing the requirements outlined in Section 1771.5 of the
Labor Code. This requirement shall not apply to any project where
the county or the design-build entity has entered into any collective
bargaining agreement or agreements that bind all of the contractors
performing work on the projects.
(c) As used in this section:
(1) "Best value" means a value determined by objective criteria
related to price, features, functions, and life-cycle costs.
(2) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(3) "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.
(4) "Project" means the construction of a building and
improvements directly related to the construction of a building, and
county sanitation wastewater treatment facilities, but does not
include the construction of other infrastructure, including, but not
limited to, streets and highways, public rail transit, or water
resources facilities and infrastructure.
(d) Design-build projects shall progress in a four-step process,
as follows:
(1) (A) The county shall prepare a set of documents setting forth
the scope of the project. The documents may include, but are not
limited to, the size, type, and desired design character of the
public improvement, 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 county's needs. The performance
specifications and any plans shall be prepared by a design
professional who is duly licensed and registered in California.
(B) Any architect or engineer retained by the county to assist in
the development of the project specific documents shall not be
eligible to participate in the preparation of a bid with any
design-build entity for that project.
(2) (A) Based on the documents prepared in paragraph (1), the
county shall prepare a request for proposals that invites interested
parties to submit competitive sealed proposals in the manner
prescribed by the county. The request for proposals shall include,
but is not limited to, the following elements:
(i) Identification of the basic scope and needs of the project or
contract, the expected cost range, and other information deemed
necessary by the county to inform interested parties of the
contracting opportunity, to include the methodology that will be used
by the county to evaluate proposals and specifically if the contract
will be awarded to the lowest responsible bidder.
(ii) Significant factors that the county reasonably expects to
consider in evaluating proposals, including cost or price and all
nonprice related factors.
(iii) The relative importance of weight assigned to each of the
factors identified in the request for proposals.
(B) With respect to clause (iii) of subparagraph (A), if a
nonweighted system is used, the agency shall specifically disclose
whether all evaluation factors other than cost or price when combined
are:
(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.
(C) If the county chooses to reserve the right to hold discussions
or negotiations with responsive bidders, it shall so specify in the
request for proposal and shall publish separately or incorporate into
the request for proposal applicable rules and procedures to be
observed by the county to ensure that any discussions or negotiations
are conducted in good faith.
(3) (A) The county shall establish a procedure to prequalify
design-build entities using a standard questionnaire developed by the
county. In preparing the questionnaire, the county shall consult
with the construction industry, including representatives of the
building trades and surety industry. This questionnaire shall require
information including, but not limited to, all of the following:
(i) 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 known at the time of bid
submission who will participate in the design-build contract,
including, but not limited to, mechanical subcontractors.
(ii) 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, as well as a financial statement
that assures the county that the design-build entity has the capacity
to complete the project.
(iii) The licenses, registration, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(iv) 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.
(v) 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 (P.L. 91-596)
(Public Law 91-596) , settled against any member of the
design-build entity, and information concerning workers' compensation
experience history and worker safety program.
(vi) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance in which an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found to be nonresponsive, or were found by an awarding body not to
be a responsible bidder.
(vii) Any instance in which the entity, or its owners, officers,
or managing employees, defaulted on a construction contract.
(viii) 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 Contributions Act (FICA; 26 U.S.C. Sec. 3101 et
seq.) withholding requirements settled against any member of the
design-build entity.
(ix) Information concerning the bankruptcy or receivership of any
member of the design-build entity, including information concerning
any work completed by a surety.
(x) 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 years 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.
(xi) 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 fully liable for the performance under the
design-build contract.
(B) 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.
(4) The county shall establish a procedure for final selection of
the design-build entity. Selection shall be based on either of the
following criteria:
(A) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Awards shall be made to the
lowest responsible bidder.
(B) A county may use a design-build competition based upon best
value and other criteria set forth in paragraph (2). The design-build
competition shall include the following elements:
(i) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposal. However, the following minimum factors shall
each represent at least 10 percent of the total weight of
consideration given to all criteria factors: price, technical design,
and construction expertise, life cycle costs over 15 years or more,
skilled labor force availability, and acceptable safety record.
(ii) Once the evaluation is complete, the top three responsive
bidders shall be ranked sequentially from the most advantageous to
the least.
(iii) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing, to be the most
advantageous.
(iv) Notwithstanding any provision of this code, upon issuance of
a contract award, the county shall publicly announce its award,
identifying the contractor to whom the award is made, along with a
written decision supporting its contract award and stating the basis
of the award. The notice of award shall also include the county's
second and third ranked design-build entities.
(v) For the purposes of this paragraph,
"skilled labor force availability" shall be determined by
the existence of an agreement with a registered apprenticeship
program, approved by the California Apprenticeship Council, which has
graduated apprentices in each of the preceding five years. This
graduation requirement shall not apply to programs providing
apprenticeship training for any craft that has been deemed by the
Department of Labor and the Department of Industrial Relations to be
an apprenticeable craft in the five years prior to enactment of this
act a commitment to training the future construction
workforce of California through apprenticeship, in compliance with
Section 1777.5 of the Labor Code. The design-build entity shall
provide the board of supervisors with the name, address, a
nd telephone number of the apprenticeship program or programs
approved by the Chief of the Division of Apprenticeship Standards
from which it intends to request the dispatch of apprentices for use
on the design-build contract .
(vi) For the purposes of this paragraph, a
bidder's "safety record" shall be deemed "acceptable" if their
experience modification rate for the most recent three-year period is
an average of 1.00 or less, and their average total recordable
injury/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 bidder is a party to an
alternative dispute resolution system as provided for in Section
3201.5 of the Labor Code.
(e) (1) Any design-build entity that is selected to design and
build a project pursuant to this section shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omission insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This section does not prohibit a general or engineering contractor
from being designated the lead entity on a design-build entity for
the purposes of purchasing necessary bonding to cover the activities
of the design-build entity.
(2) Any payment or performance bond written for the purposes of
this section shall be written using a bond form developed by the
county.
(f) All subcontractors that were not listed by the design-build
entity in accordance with clause (i) of subparagraph (A) of paragraph
(3) of subdivision (d) shall be awarded by the design-build entity
in accordance with the design-build process set forth by the county
in the design-build package. All subcontractors bidding on contracts
pursuant to this section shall be afforded the protections contained
in Chapter 4 (commencing with Section 4100) of Part 1. The
design-build entity shall do both of the following:
(1) Provide public notice of the availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the county.
(2) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with the procedure established pursuant
to this section.
(g) The minimum performance criteria and design standards
established pursuant to paragraph (1) of subdivision (d) shall be
adhered to by the design-build entity. Any deviations from those
standards may only be allowed by written consent of the county.
(h) The county may retain the services of a design professional or
construction project manager, or both, throughout the course of the
project in order to ensure compliance with this section.
(i) Contracts awarded pursuant to this section shall be valid
until the project is completed.
(j) Nothing in this section is intended to affect, expand, alter,
or limit any rights or remedies otherwise available at law.
(k) (1) If the county elects to award a project pursuant to this
section, retention proceeds withheld by the county 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.
(2) In a contract between the design-build entity and the
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may shall not exceed the
percentage specified in the contract between the county and the
design-build entity. If the design-build entity provides written
notice to any subcontractor who 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 county and the design-build
entity from any payment made by the design-build entity to the
subcontractor.
() Each county that elects to proceed under this section and uses
the design-build method on a public works project shall submit to the
Legislative Analyst's Office before December 1, 2009, a report
containing a description of each public works project procured
through the design-build process and completed after November 1,
2004, and before November 1, 2009. The report shall include, but
shall not be limited to, all of the following information:
(1) The type of project.
(2) The gross square footage of the project.
(3) The design-build entity that was awarded the project.
(4) The estimated and actual length of time to complete the
project.
(5) The estimated and actual project costs.
(6) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the design-build
project, including the resolution of the protests.
(7) An assessment of the prequalification process and criteria.
(8) An assessment of the effect of retaining 5-percent retention
on the project.
(9) A description of the Labor Force Compliance Program and an
assessment of the project impact, where required.
(10) A description of the method used to award the contract. If
best value was the method, the report shall describe the factors used
to evaluate the bid, including the weighting of each factor and an
assessment of the effectiveness of the methodology.
(11) An assessment of the project impact of "skilled labor force
availability."
(12) An assessment of the design-build dollar limits on county
projects. This assessment shall include projects where the county
wanted to use design-build and was precluded by the dollar
limitation. This assessment shall also include projects where the
best value method was not used due to dollar limitations.
(13) An assessment of the most appropriate uses for the
design-build approach.
(m) Any county that elects to not use the authority granted by
this section may submit a report to the Legislative Analyst's Office
explaining why the county elected to not use the design-build method.
(n) On or before January 1, 2010, the Legislative Analyst shall
report to the Legislature on the use of the design-build method by
counties pursuant to this section, including the information listed
in subdivision (). The report may include recommendations for
modifying or extending this section.
(o) Except as provided in this section, nothing in this act shall
be construed to affect the application of any other law.
(p) This section shall remain in effect only until January 1,
2011, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2011, deletes or extends
that date.
SEC. 4. Section 20175.2 of the Public Contract Code is amended to
read:
20175.2. (a) (1) A city, with approval of the appropriate city
council, may utilize an alternative procedure for bidding on building
construction projects in the city in excess of one million dollars
($1,000,000), except as provided in subdivision (p).
(2) Cities may award the project using either the lowest
responsible bidder or by best value.
(b) (1) It is the intent of the Legislature to enable cities to
utilize cost-effective options for building and modernizing public
facilities. The Legislature also recognizes the national trend,
including authorization in California, to allow public entities to
utilize design-build contracts as a project delivery method. It is
not the intent of the Legislature to authorize this procedure for
transportation facilities, including, but not limited to, roads and
bridges.
(2) The Legislature also finds and declares that utilizing a
design-build contract requires a clear understanding of the roles and
responsibilities of each participant in the design-build process.
The Legislature also finds that the cost-effective benefits to cities
are achieved by shifting the liability and risk for cost containment
and project completion to the design-build entity.
(3) It is the intent of the Legislature to provide an alternative
and optional procedure for bidding and building construction projects
for cities.
(4) The design-build approach may be used, but is not limited to
use, when it is anticipated that it will: reduce project cost,
expedite project completion, or provide design features not
achievable through the design-bid-build method.
(5) If a city council elects to proceed under this section, the
city council shall establish and enforce, for design-build projects,
a labor compliance program containing the requirements outlined in
Section 1771.5 of the Labor Code, or it shall contract with a third
party to operate a labor compliance program containing the
requirements outlined in Section 1771.5 of the Labor Code. This
requirement shall not apply to any project where the city or the
design-build entity has entered into any collective bargaining
agreement or agreements that bind all of the contractors performing
work on the projects.
(c) As used in this section:
(1) "Best value" means a value determined by objectives relative
to price, features, functions, and life-cycle costs.
(2) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(3) "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.
(4) "Project" means the construction of a building and
improvements directly related to the construction of a building, but
does not include streets and highways, public rail transit, or water
resource facilities and infrastructure.
(d) Design-build projects shall progress in a four-step process,
as follows:
(1) (A) The city shall prepare a set of documents setting forth
the scope of the project. The documents may include, but are not
limited to, the size, type, and desired design character of the
buildings 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 city's needs. The performance specifications
and any plans shall be prepared by a design professional who is duly
licensed and registered in California.
(B) Any architect or engineer retained by the city to assist in
the development of the project-specific documents shall not be
eligible to participate in the preparation of a bid with any
design-build entity for that project.
(2) (A) Based on the documents prepared in paragraph (1), the city
shall prepare a request for proposals that invites interested
parties to submit competitive sealed proposals in the manner
prescribed by the city. The request for proposals shall include, but
is not limited to, the following elements:
(i) Identification of the basic scope and needs of the project or
contract, the expected cost range, and other information deemed
necessary by the city to inform interested parties of the contracting
opportunity, to include the methodology that will be used by the
city to evaluate proposals, and specifically if the contract will be
awarded to the lowest responsible bidder.
(ii) Significant factors which that
the city reasonably expects to consider in evaluating proposals,
including cost or price and all nonprice related factors.
(iii) The relative importance of weight assigned to each of the
factors identified in the request for proposals.
(B) With respect to clause (iii) of subparagraph (A), if a
nonweighted system is used, the agency shall specifically disclose
whether all evaluation factors, other than cost or price, when
combined are:
(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.
(C) If the city chooses to reserve the right to hold discussions
or negotiations with responsive bidders, it shall so specify in the
request for proposal and shall publish separately, or incorporate
into the request for proposal, applicable rules and procedures to be
observed by the city to ensure that any discussions or negotiations
are conducted in good faith.
(3) (A) The city shall establish a procedure to prequalify
design-build entities using a standard questionnaire developed by the
city. In preparing the questionnaire, the city shall consult with
the construction industry, including representatives of the building
trades and surety industry. This questionnaire shall require
information including, but not limited to, all of the following:
(i) 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 known at the time of bid
submission who will participate in the design-build contract,
including, but not limited to, mechanical subcontractors.
(ii) 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, as well as a financial statement
that assures the city that the design-build entity has the capacity
to complete the project.
(iii) The licenses, registration, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(iv) 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.
(v) 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 workers' compensation experience history and
worker safety program.
(vi) 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 to be nonresponsive, or were found by an awarding body not to
be a responsible bidder.
(vii) Any instance where the entity, its owners, officers, or
managing employees defaulted on a construction contract.
(viii) 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.
(ix) Information concerning the bankruptcy or receivership of any
member of the design-build entity, including information concerning
any work completed by a surety.
(x) 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 years 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.
(xi) 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 fully liable for the performance under the design-build
contract.
(B) 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.
(4) The city shall establish a procedure for final selection of
the design-build entity. Selection shall be based on either of the
following criteria:
(A) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Awards shall be made to the
lowest responsible bidder.
(B) The city may use a design-build competition based upon best
value and other criteria set forth in paragraph (2) of subdivision
(d). The design-build competition shall include the following
elements:
(i) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposal. However, the following minimum factors shall
each represent at least 10 percent of the total weight of
consideration given to all criteria factors: price, technical design
and construction expertise, life-cycle costs over 15 years or more,
skilled labor force availability, and acceptable safety record. Each
of these factors shall be weighted equally.
(ii) Once the evaluation is complete, the top three responsive
bidders shall be ranked sequentially from the most advantageous to
the least.
(iii) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing, to be the most
advantageous.
(iv) Notwithstanding any provision of this code, upon issuance of
a contract award, the city shall publicly announce its award,
identifying the contractor to whom the award is made, along with a
written decision supporting its contract award and stating the basis
of the award. The notice of award shall also include the city's
second and third ranked design-build entities.
(v) For the purposes of this paragraph,
"skilled labor force availability" shall be determined by
the existence of an agreement with a registered apprenticeship
program, approved by the California Apprenticeship Council, which has
graduated apprentices in each of the preceding five years. This
graduation requirement shall not apply to programs providing
apprenticeship training for any craft that has been deemed by the
Department of Labor and the Department of Industrial Relations to be
an apprenticeable craft in the five years prior to enactment of this
act a commitment to training the future construction
workforce of California through apprenticeship, in compliance with
Section 1777.5 of the Labor Code. The design-build entity shall
provide the city council with the name, address, and telephone number
of the apprenticeship program or programs approved by the Chief of
the Division of Apprenticeship Standards from which it intends to
request the dispatch of apprentices for use on the design-build
contract .
(vi) For the purposes of this paragraph, a
bidder's "safety record" shall be deemed "acceptable" if their
experience modification rate for the most recent three-year period is
an average of 1.00 or less, and their average total recordable
injury/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 bidder is a party to
an alternative dispute resolution system, as provided for in Section
3201.5 of the Labor Code.
(e) (1) Any design-build entity that is selected to design and
build a project pursuant to this section shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services and errors and omissions insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This section does not prohibit a general or engineering contractor
from being designated the lead entity on a design-build entity for
the purposes of purchasing necessary bonding to cover the activities
of the design-build entity.
(2) Any payment or performance bond written for the purposes of
this section shall be written using a bond form developed by the
city.
(f) All subcontractors that were not listed by the design-build
entity in accordance with clause (i) of subparagraph (A) of paragraph
(3) of subdivision (d) shall be awarded by the design-build entity
in accordance with the design-build process set forth by the city in
the design-build package. All subcontractors bidding on contracts
pursuant to this section shall be afforded the protections contained
in Chapter 4 (commencing with Section 4100) of Part 1. The
design-build entity shall do both of the following:
(1) Provide public notice of the availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the city.
(2) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with the procedure established pursuant
to this section.
(g)
The minimum performance criteria and design standards established
pursuant to paragraph (1) of subdivision (d) shall be adhered to by
the design-build entity. Any deviations from those standards may only
be allowed by written consent of the city.
(h) The city may retain the services of a design professional or
construction project manager, or both, throughout the course of the
project in order to ensure compliance with this section.
(i) Contracts awarded pursuant to this section shall be valid
until the project is completed.
(j) Nothing in this section is intended to affect, expand, alter,
or limit any rights or remedies otherwise available at law.
(k) (1) If the city elects to award a project pursuant to this
section, retention proceeds withheld by the city 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.
(2) In a contract between the design-build entity and the
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may shall not exceed the
percentage specified in the contract between the city and the
design-build entity. If the design-build entity provides written
notice to any subcontractor who 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 city and the design-build
entity from any payment made by the design-build entity to the
subcontractor.
(l) Each city that elects to proceed under this section and uses
the design-build method on a public works project shall submit to the
Legislative Analyst's Office before December 1, 2014, a report
containing a description of each public works project procured
through the design-build process that is completed after January 1,
2011, and before November 1, 2014. The report shall include, but
shall not be limited to, all of the following information:
(1) The type of project.
(2) The gross square footage of the project.
(3) The design-build entity that was awarded the project.
(4) The estimated and actual project costs.
(5) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the design-build
project, including the resolution of the protests.
(6) An assessment of the prequalification process and criteria.
(7) An assessment of the effect of retaining 5 percent retention
on the project.
(8) A description of the Labor Force Compliance Program and an
assessment of the project impact, where required.
(9) A description of the method used to award the contract. If the
best value method was used, the report shall describe the factors
used to evaluate the bid, including the weighting of each factor and
an assessment of the effectiveness of the methodology.
(10) An assessment of the project impact of "skilled labor force
availability."
(11) An assessment of the most appropriate uses for the
design-build approach.
(m) Any city that elects not to use the authority granted by this
section may submit a report to the Legislative Analyst's Office
explaining why the city elected not to use the design-build method.
(n) On or before January 1, 2015, the Legislative Analyst's Office
shall report to the Legislature on the use of the design-build
method by cities pursuant to this section, including the information
listed in subdivision (l). The report may include recommendations for
modifying or extending this section.
(o) Except as provided in this section, nothing in this act shall
be construed to affect the application of any other law.
(p) Before January 1, 2011, the project limitation of one million
dollars ($1,000,000), as set forth in subdivision (a), shall not
apply to any city in the Counties of Solano and Yolo, or to the
Cities of Stanton and Victorville.
(q) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 5. Section 20209.8 of the Public Contract Code is amended to
read:
20209.8. Criteria used in the evaluation of proposals may
include, but need not be limited to, the proposed design approach,
life-cycle costs, project features, and project functions.
(a) Competitive proposals shall be evaluated by using only the
criteria and source selection procedures specifically identified in
the RFP. Once the evaluation is complete, all responsive bidders
shall be ranked from most advantageous to least advantageous to the
awarding agency.
(b) Any architectural or engineering firm or individual retained
by the governing body to assist in the development criteria or
preparation of the solicitation shall not be eligible to participate
in the competition with any design-build entity.
(c) The award of the contract shall be made to the responsible
bidder whose proposals are determined, in writing, to be the best
value to the awarding body.
(d) Proposals shall be evaluated and scored solely on the basis of
the factors and source selection procedures identified in the RFPs.
However, the following minimum factors shall collectively represent
at least 50 percent of the total weight or consideration given to all
criteria factors: price, technical expertise, life cycle costs over
15 years or more, skilled labor force availability, and acceptable
safety record.
(e) The contracting agency shall issue a written decision
supporting its contract award and stating in detail the basis of the
award. The decision and the contract file shall be sufficient to
satisfy an external audit.
(f) Notwithstanding any provision of the Public Contract Code,
upon issuance of a contract award, the contracting agency shall
publicly announce its award, identifying the contractor to whom the
award is made, the winning contractor's price proposal, and its
overall combined rating on the RFP evaluation factors. The notice of
award shall also include the agency's ranking of all other offerors
and their respective price proposals and a summary of the agency's
rationale for the contract award.
(g) For the purposes of this section, "skilled
labor force availability" shall be determined by the
existence of an agreement with a registered apprenticeship program,
approved by the California Apprenticeship Council, which has
graduated apprentices in each of the preceding five years. This
graduation requirement shall not apply to programs providing
apprenticeship training for any craft that has not been deemed by the
Department of Labor and the Department of Industrial Relations to be
an apprenticeable craft in the five years prior to enactment of this
act a commitment to training the future construction
workforce of California through apprenticeship, in compliance with
Section 1777.5 of the Labor Code. The design-build entity shall
provide the governing body with the name, address, and telephone
number of the apprenticeship program or programs approved by the
Chief of the Division of Apprenticeship Standards from which it
intends to request the dispatch of apprentices for use on the
design-build contract .
(h) For the purposes of this section, a bidder'
s "safety record" shall be deemed "acceptable" if his or her
experience modification rate for the most recent three-year period is
an average of 1.0 or less and his or her average total recordable
injury/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 bidder is a party to an
alternative dispute resolution system as provided for in Section
3201.5 of the Labor Code.
