Bill Text: CA SB146 | 2023-2024 | Regular Session | Chaptered

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Bill Title: Public resources: infrastructure: contracting.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Passed) 2023-07-10 - Chaptered by Secretary of State. Chapter 58, Statutes of 2023. [SB146 Detail]

Download: California-2023-SB146-Chaptered.html

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Senate Bill No. 146

CHAPTER 58

An act to amend Section 13979.2 of, and to add and repeal Section 13979.4 of, the Government Code, to add and repeal Article 6.7 (commencing with Section 10215) of Chapter 1 of Part 2 of Division 2 of the Public Contract Code, and to add and repeal Article 6.5 (commencing with Section 217) of Chapter 1 of Division 1 of the Streets and Highways Code, relating to public resources, and declaring the urgency thereof, to take effect immediately.

[ Approved by Governor  July 10, 2023. Filed with Secretary of State  July 10, 2023. ]

LEGISLATIVE COUNSEL'S DIGEST

SB 146, Gonzalez. Public resources: infrastructure: contracting.

(1) Existing law authorizes the Secretary of Transportation to assume the responsibilities of the United States Secretary of Transportation under the federal National Environmental Policy Act of 1969 (NEPA) and other federal environmental laws for any railroad, public transportation, or multimodal project undertaken by state agencies, as specified. Existing law provides that the State of California consents to the jurisdiction of the federal courts with regard to the compliance, discharge, or enforcement of these responsibilities. Existing law repeals these provisions on January 1, 2025.

This bill would extend the above authorization to December 31, 2033. The bill would additionally authorize the Secretary of Transportation, consistent with, and subject to the requirements of, any memorandum of understanding between the state and federal government and upon the request of a local or regional agency with the authority to implement transportation projects, to assume responsibilities under the NEPA and other federal environmental laws for any railroad, local public transportation, or multimodal project implemented by the requesting local or regional agency. The bill would impose terms and conditions similar to those with respect to the above-described authority to assume those responsibilities for projects undertaken by state agencies, including providing consent for the jurisdiction of the federal courts, as provided. The bill would require the secretary to report to the transportation policy committees of the Legislature regarding the assumption of responsibilities under the NEPA requested by a local or regional agency by December 31, 2033. The bill would repeal these provisions on December 31, 2033.

(2) Existing law authorizes the Director of General Services to use the progressive design-build procurement process for the construction of up to 3 capital outlay projects, as jointly determined by the Department of General Services and the Department of Finance, and prescribes that process. Existing law defines “progressive design-build” as a project delivery process in which both the design and construction of a project are procured from a single entity that is selected through a qualifications-based selection at the earliest feasible stage of the project. Existing law, pursuant to the process, after selection of a design-build entity, authorizes the Department of General Services to contract for design and preconstruction services sufficient to establish a guaranteed maximum price, as defined. Existing law authorizes the department, upon agreement on a guaranteed maximum price, to amend the contract in its sole discretion, as specified. Existing law requires specified information to be verified under penalty of perjury.

This bill would authorize the Department of Water Resources and the Department of Transportation (departments) to use the progressive design-build procurement process for the construction of up to 8 public works projects per department for a project that is estimated to exceed $25,000,000 in total price, and would prescribe that process. The bill would require each design-build entity, as defined, to submit specified information in a statement of qualifications that is to be verified under penalty of perjury. By expanding the crime of perjury, the bill would impose a state-mandated local program.

This bill would prescribe the process for the departments to determine which design-build entity offers the best value to the public for the design-build project, as defined. The bill would require the selected design-build entity to provide payment and performance bonds and errors and omissions insurance coverage, as specified. The bill would, pursuant to the process, authorize the departments to contract for design and preconstruction services sufficient to establish a guaranteed maximum price, as defined. Upon agreement on a guaranteed maximum price, the bill would authorize the departments to amend a contract, as specified. The bill would also authorize the departments to solicit additional proposals if the departments and the design-build entity are unable to reach an agreement on a guaranteed maximum price. The bill would require the departments to submit, on or before January 1, 2034, to the Legislature a report containing specified information regarding the public works projects, commenced before January 1, 2033, that used the progressive design-build procurement process.

This bill would specify that the above provisions do not apply to procurement by the Department of Water Resources for the design or construction of through-Delta conveyance facilities of the Sacramento-San Joaquin Delta or seawater desalination projects.

(3) Existing law requires the Department of Transportation to improve and maintain state highways.

The State Contract Act generally provides for a contracting process by state agencies for public works of improvement pursuant to a competitive bidding process, under which bids are awarded to the lowest responsible bidder, with specified alternative procurement procedures authorized in certain cases. Other existing law authorizes certain state and local agencies to engage in job order contracting, as prescribed.

This bill, until December 31, 2033, would authorize the Department of Transportation to use job order contracting for certain transportation and public works projects, including, among others, those related to highway maintenance, installation of stormwater pollution control devices, and for facilities, systems, and traffic control devices needed to comply with the federal Americans with Disabilities Act of 1990, as provided. The bill would require the department to establish a procedure to prequalify job order contractors and to prepare a set of documents for each job order contract, as provided. The bill would require the department to prepare a request for bids for job order contracts that invites job order contractors to submit sealed bids in the manner prescribed by the department. The bill would also authorize the department, notwithstanding those other procedures, to award job order contracts for contracts within a specified cost range after obtaining written bid submittals from 2 or more certified small businesses or from 2 or more disabled veteran business enterprises, as provided.

This bill would authorize job order contracts to be executed for an initial contract term of no more than 12 months, with the option of extending or renewing the job order contract for 2 additional 12-month periods, as provided. The bill would require job order contractors to possess or obtain sufficient bonding and risk and liability insurance, as provided. The bill would require the department to publish, on or before July 1 of each year, until July 1, 2033, on its internet website regarding the status of all active job order contracts and those job order contracts that expired in the previous year, and to monitor job order contracts for compliance with federal and state labor laws.

This bill would repeal the above-described provisions relating to job order contracting on December 31, 2033.

(4) 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.

(5) This bill would declare that it is to take effect immediately as an urgency statute.

Digest Key

Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 13979.2 of the Government Code is amended to read:

13979.2.

 (a) The secretary, on behalf of the agency, and any department, office, or other unit within the agency with the authority to implement transportation projects, may assume responsibilities under the federal National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et seq.) and other federal environmental laws, pursuant to Section 327 of Title 23 of the United States Code, for any railroad, public transportation, or multimodal project.

(b)  Before assuming the responsibilities set forth in subdivision (a) through execution of a memorandum of understanding between the State of California and the federal government, the secretary shall submit a copy of the draft memorandum of understanding to the Joint Legislative Budget Committee. Execution of the memorandum of understanding shall occur no sooner than 30 days after the secretary provides the draft memorandum of understanding to the Joint Legislative Budget Committee, or whatever lesser time after that notification that the chair of the joint committee, or the chair’s designee, may determine.

(c) The State of California consents to the jurisdiction of the federal courts with regard to the compliance, discharge, or enforcement of any responsibilities assumed pursuant to subdivision (a).

(d) In any action brought pursuant to the federal laws described in subdivision (a) for a project for which responsibilities have been assumed pursuant to subdivision (a), no immunity from suit may be asserted pursuant to the Eleventh Amendment to the United States Constitution, and any immunity is hereby waived.

(e) No responsibility assumed pursuant to subdivision (a) may be delegated to any political subdivision of the state, such as a county, or its instrumentalities.

(f) This section does not affect the obligation of the secretary and all departments, offices, and other units within the agency to comply with state and federal law.

(g) Nothing in this section is intended to repeal or modify Section 820.1 of the Streets and Highways Code.

(h) This section shall not be construed as changing the requirements of the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).

(i) This section shall remain in effect only until December 31, 2033, and as of that date is repealed.

SEC. 2.

 Section 13979.4 is added to the Government Code, to read:

13979.4.

 (a) (1) Consistent with, and subject to the requirements of, any memorandum of understanding between the state and federal government, the secretary, upon the request of a local or regional agency with the authority to implement transportation projects, may assume responsibilities under the federal National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et seq.) and other federal environmental laws, pursuant to Section 327 of Title 23 of the United States Code, for any railroad, local public transportation, or multimodal project implemented by the requesting local or regional agency.

(2) For purposes of this section, “local or regional agency” includes, but is not limited to, a city, county, city and county, special district, or joint powers authority.

(b) The secretary shall report to the transportation policy committees of the Legislature regarding which local or regional agencies requested that the secretary assume the authority under the federal National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et seq.) by December 31, 2033.

(3) A report to be submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.

(c) Before assuming the responsibilities set forth in subdivision (a) through execution of a memorandum of understanding between the State of California and the federal government, the secretary shall submit a copy of the draft memorandum of understanding to the Joint Legislative Budget Committee. Execution of the memorandum of understanding shall occur no sooner than 30 days after the secretary provides the draft memorandum of understanding to the Joint Legislative Budget Committee, or whatever lesser time after that notification that the chair of the joint committee, or the chair’s designee, may determine.

(d) The State of California consents to the jurisdiction of the federal courts with regard to the compliance, discharge, or enforcement of any responsibilities assumed pursuant to subdivision (a).

(e) In any action brought pursuant to the federal laws described in subdivision (a) for a project for which responsibilities have been assumed pursuant to subdivision (a), no immunity from suit may be asserted pursuant to the Eleventh Amendment to the United States Constitution, and any immunity is hereby waived.

(f) No responsibility assumed pursuant to subdivision (a) may be delegated to any political subdivision of the state, such as a county, or its instrumentalities.

(g) This section does not affect the obligation of the secretary and all departments, offices, and other units within the agency to comply with state and federal law.

(h) Nothing in this section is intended to repeal or modify Section 820.1 of the Streets and Highways Code.

(i) This section shall not be construed as changing the requirements of the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).

(j) This section shall remain in effect only until December 31, 2033, and as of that date is repealed.

SEC. 3.

 Article 6.7 (commencing with Section 10215) is added to Chapter 1 of Part 2 of Division 2 of the Public Contract Code, to read:

Article  6.7. Progressive Design-Build Projects

10215.

 For purposes of this article, the following definitions apply:

(a) “Best value” means a value determined by evaluation of objective criteria that may include, but are not limited to, cost factors, 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 department and meeting the objectives of the project, or a tradeoff between cost 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) “Department” means any department of the State of California authorized pursuant to Section 10215.1 to utilize progressive design-build contracting.

(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 progressive design-build contract.

(e) “Design-build project” means a capital project using the progressive design-build construction procurement process described in this article.

(f) “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 civil, geotechnical, electrical, mechanical, and plumbing contractors.

(g) “Director” means the director of any department of the State of California authorized pursuant to Section 10215.1 to utilize progressive design-build contracting, or their designee.

(h) “Guaranteed maximum price” means the maximum payment amount agreed upon by the department and the design-build entity for the design-build entity to finish all remaining design, preconstruction, and construction activities sufficient to complete and close out the project.

(i) “Progressive design-build” means a project delivery process in which the design, preconstruction services, and construction of a project are procured, in one or more stages, from a single design-build entity that is selected through a qualifications-based selection at the earliest feasible stage of the project. However, the progressive design-build model offers flexibility to retain a different entity for the construction phase of the project, should the parties be unable to agree, after a specified portion of the design phase is complete, on a guaranteed maximum price for the construction phase.

(j) “Qualifications-based selection” means the process by which the department solicits for services from the design-build entities and that best value is the basis of the award.

10215.1.

 (a) (1) Notwithstanding any other law, both of the following departments may procure progressive design-build contracts for public works projects for which the estimated price, as determined pursuant to subdivision (a) of Section 10215.2, exceeds twenty five million dollars ($25,000,000):

(A) The Department of Water Resources as established in Section 120 of the Water Code.

(B) The Department of Transportation as established under Part 5 (commencing with Section 14000) of Division 3 of Title 2 of the Government Code.

(2) This subdivision does not authorize a design-build-operate contract for any project. A contract pursuant to this article may provide for operations during a training or transitional period, but shall not include long-term operations for any design-build project.

(3) The progressive design-build authorization in this subdivision shall not include the authority to perform construction inspection services for projects on or interfacing with the state highway system, which shall be performed by the Department of Transportation consistent with Section 91.2 of the Streets and Highways Code.

(4) The progressive design-build authorization in this subdivision shall not include the authority to perform construction inspection services for projects on the State Water Project or any other state-owned or -operated water resources facility, which shall be performed by the Department of Water Resources consistent with Section 148 of the Water Code.

(5) A department described in paragraph (1) shall be limited to utilizing progressive-design build contracts for no more than eight design-build projects.

(b) The director of each department identified in subdivision (a) shall develop guidelines for a standard departmental conflict-of-interest policy, consistent with applicable law, regarding the ability of a person or entity that performs services for the department relating to the solicitation of a progressive design-build project, to submit a statement of qualifications, a proposal, or both as a design-build entity, or to join a design-build team.

(c) This article does not apply to procurement by the Department of Water Resources for the design or construction of through-Delta conveyance facilities of the Sacramento-San Joaquin Delta or seawater desalination projects.

10215.2.

 The procurement process for progressive design-build projects shall progress as follows:

(a) The department shall determine the scope and estimated price of the design-build project. The determination may include, but need not be limited to, the size, type, and desired design character of the project and any other information deemed necessary to describe adequately the department’s needs.

(b) The department shall prepare and issue a request for qualifications. The request for qualifications shall include, but is not limited to, all of the following elements:

(1) Identification of the basic scope and needs of the design-build project or contract, the expected cost range, the methodology that will be used by the department to evaluate qualifications, the procedure for final selection of the design-build entity, and any other information deemed necessary by the director to inform interested parties of the contracting opportunity.

(2) Significant factors that the department reasonably expects to consider in evaluating qualifications, including technical design and construction expertise, and all other nonprice-related factors. The department may require that a cost estimate, including the detailed basis for the estimate, be included in the design-build entities’ responses and consider those costs in evaluating the statements of qualifications.

(3) The relative importance or the weight assigned to each of the factors identified in the request for qualifications.

(4) A request for a statement of qualifications with a template for the statement that is prepared by the department. The department shall require all of the following information in the statement and indicate, in the template, that all of the following information is required:

(A) If the design-build entity is a privately held corporation, limited liability company, partnership, or joint venture, a listing of all of the design-build entity’s shareholders, partners, or members who, at the time the statement of qualification is submitted, the design-build entity knows will perform work on the design-build project if the design-build entity is selected by the department.

(B) Evidence that the members of the design-build team have completed, or have 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 design-build project, and a financial statement that ensures that the design-build entity has the capacity to complete the design-build project.

(C) The licenses, registration, and credentials required to design and construct the design-build 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 design-build entity’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 design-build entity is a party to an alternative dispute resolution system as provided for in Section 3201.5 of the Labor Code.

(H) A full disclosure regarding each of the following, if applicable:

(i) Any serious or willful violation of 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 or otherwise resolved against any member of the design-build team.

(ii) Any debarment, disqualification, or removal of any member of the design-build team or its owners, officers, or managing employees from a federal, state, or local government public works project.

(iii) Any instance in which a member of the design-build team, or 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.

(iv) Any instance in which any member of the design-build team, or its owners, officers, or managing employees, defaulted on a construction contract.

(v) Any violations of the Contractors State License Law, as described in Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, by a member of the design-build team or its owners, officers, or managing employees, including alleged violations of Federal or state law regarding the payment of wages, benefits, apprenticeship requirements, or personal income tax withholding, or federal Insurance Contribution Act withholding requirements settled against any member of the design-build entity.

(vi) Any bankruptcy or receivership of any member of the design-build team, including, but not limited to, information concerning any work completed by a surety.

(vii) Any adverse claims, disputes, or lawsuits between the owner of a public works project and any member of the design-build team during the five years preceding submission of a bid under this article, in which the claim, settlement, or judgment exceeded fifty thousand dollars ($50,000) and was settled or otherwise resolved against the design-build entity or any member of the design-build team. Information shall also be provided concerning any work completed by a surety during this five-year period.

(viii) Any adverse claims, disputes, or lawsuits between any member of the design-build team and any employee of that entity during the five years preceding submission of a bid under this article, in which the claim, settlement, or judgment exceeded fifty thousand dollars ($50,000) and was settled or otherwise resolved against the entity.

(5) The information provided by a design-build entity in response to a request for qualifications shall be certified under penalty of perjury by the design-build entity and its general partners or joint venture members.

(c) (1) Following the deadline for submission of a statement of qualifications, the department shall review the submissions. The department may evaluate submissions based solely upon the information provided in each design-build entity’s statement of qualifications. The department may also interview some or all of the design-build entities to further evaluate their qualifications for the design-build project. The department may also hold discussions or negotiations with design-build entities using the process described in the department’s request for qualifications.

(2) For each request for qualifications, the department shall generate a final list of qualified design-build entities that participated in the request for qualifications before entering into negotiations for the contract or contracts to which the request for qualifications applies.

(3) If submissions in response to a request for qualifications provide sufficient information to determine which qualified design-build entity has offered the best value to the public, the department may enter into negotiations with that entity concerning contract terms and award a contract for design and preconstruction services to that entity. Such contract shall provide for the subsequent negotiation of terms governing the construction phase of the design-build project. If the department is unable to negotiate a satisfactory contract with that entity for design and preconstruction services, the department may undertake negotiations with a separate qualified design-build entity that participated in the request for qualifications process.

(4) If additional information is necessary to determine which qualified design-build entity offers the best value to the public, the department may prepare a further request for proposals, based on the documents prepared as described in subdivision (a), that invites qualified design-build entities identified pursuant to paragraph (2) to submit competitive sealed proposals in the manner prescribed by the department.

(d) Notwithstanding any other provision of this code, upon issuance of a contract award, the director 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. The statement regarding the contract award and the contract file shall provide sufficient information to satisfy an external audit.

10215.3.

 (a) The design-build entity shall provide payment and performance bonds for the design-build project in the form and in the amount required by the director, which are 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 design-build project.

(c) The department shall develop a standard form of payment and performance bond for its design-build projects.

10215.4.

 (a) After selecting a design-build entity for the design and preconstruction phase, the department may enter into a contract and direct the design-build entity to begin design and preconstruction activities sufficient to establish a guaranteed maximum price for the project.

(b) Subject to Section 13332.19 of the Government Code, if otherwise applicable to the department, upon agreement of the guaranteed maximum price for the design-build project, the department, at its sole and absolute discretion, may amend its contract with the design-build entity, or enter into a new contract, and direct the entity to complete the remaining design, preconstruction, and construction activities sufficient to complete and close out the design-build project, and may add funds not exceeding the guaranteed maximum price to the contract for these activities. Any amendment of the existing contract or a new contract with the design-build entity shall not require any additional competitive process. This section does not require the department to amend an existing contract or enter into a new contract for remaining design, preconstruction, or construction activities.

(c) If the cost for completing all remaining design, preconstruction, and construction activities sufficient to complete and close out the design-build project exceeds the guaranteed maximum price, the costs exceeding the guaranteed maximum price shall be the responsibility of the design-build entity. If the cost for these activities is less than the guaranteed maximum price, the design-build entity shall not be entitled to the difference between the cost and the guaranteed maximum price. Any savings provided to the department shall revert to the fund from which the appropriation was made.

(d) If the department and the design-build entity do not reach an agreement on a guaranteed maximum price or the department otherwise elects not to have the design-build entity complete some or all of the remaining work, the department may solicit proposals to complete some or all of the remaining work from firms that submitted a statement of qualifications pursuant to subdivision (b) of Section 10215.2. The department may also, upon written determination that it is in the best interest of the state to do so, formally solicit proposals from other entities to complete all or some of the remaining work, or complete the design-build project using other delivery methods. Subject to Section 13332.19 of the Government Code, if otherwise applicable to the department, any contract awarded shall be made on a best value basis.

10215.5.

 (a) The department, in each request for qualifications or request for proposals, may identify specific types of subcontractors that are required to be included in the design-build entity’s statement of qualifications. All construction subcontractors that are identified in the statement of qualifications shall be afforded all the protections of Chapter 4 (commencing with Section 4100) of Part 1.

(b) Following award of the design-build contract, except for those construction subcontractors listed in the statement of qualifications or proposal, 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 department, including a fixed date and time on which qualification 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.

(c) Subcontractors awarded construction subcontracts under this subdivision shall be afforded all the protections of Chapter 4 (commencing with Section 4100) of Part 1.

10215.6.

 (a) Any department authorized by Section 10215.1 to utilize progressive design-build contracts pursuant to this article shall prepare and submit to the Legislature a report by January 1, 2034, that describes each design-build project awarded under this article that has begun construction by January 1, 2033.

(b) The report described in subdivision (a) shall include relevant data including, but not limited to, all of the following information:

(1) The cost of the design-build project.

(2) The current status or stage of the design-build project.

(3) If complete, the completion date of the design-build project.

(4) If incomplete, the estimated completion date of the design-build project.

(c) The report described in subdivision (a) shall also provide a comprehensive assessment on the effectiveness of the progressive design-build project delivery method relative to project cost and time savings.

(d)  The report submitted pursuant to subdivision (a) shall be submitted in compliance with Section 9795 of the Government Code.

10215.7.

 This article does not affect, expand, alter, or limit any rights or remedies otherwise available at law.

10215.8.

 This article shall remain in effect only until December 31, 2033, and as of that date is repealed. The repeal of this article shall not affect the contracts entered into by the department, or the department’s authority to complete the design-build projects for which a design and preconstruction phase contract has been entered under this article, before December 31, 2033.

SEC. 4.

 Article 6.5 (commencing with Section 217) is added to Chapter 1 of Division 1 of the Streets and Highways Code, to read:

Article  6.5. Job Order Contracting

217.

 As used in this article, the following definitions apply:

(a) “Adjustment factor“ means the job order contractor’s competitively bid adjustment to the department’s prices as published in the unit price catalog.

(b) “Job order” means a firm, fixed-priced, lump-sum order issued by the department to a job order contractor for a definite project scope or work as compiled from the unit price catalog to be performed pursuant to a job order contract.

(c) “Job order” means a contract, awarded pursuant to this section, between the department and a licensed, bonded, and general liability insured contractor in which the contractor agrees to a fixed-period, fixed-unit price, and indefinite quantity contract that provides for the use of job orders for public works or maintenance projects.

(d) “Project” means the specific requirements and work to be accomplished by the job order contractor in connection with an individual job order.

(e) “Unit price catalog” means a book containing specific construction tasks and the unit prices to install or demolish that construction. The listed tasks shall be based on generally accepted industry standards and information, where available, for various items of work to be performed by the job order contractor. The prices shall include the cost of materials, labor, and equipment for performing the items of work. The prices shall not include overhead and profit. All unit prices shall be developed using local prevailing wages.

217.1.

 (a) It is the intent of the Legislature to enable the use of job order contracting as an option for constructing transportation and public works projects when it is anticipated that the use of this method will reduce procurement costs or expedite project completion in a manner that is not achievable through the design-bid-build method. It is the intent of the Legislature that this contracting method will improve the efficiency and efficacy of contracted work and not supplant work completed by the department’s field maintenance employees.

(b) (1) The department may use the procurement method outlined in this article for job order contracts.

(2) A job order contract of the department shall be competitively bid and awarded to the lowest bidder providing a qualified responsive bid.

(c) (1) The department may use job order contracting, consistent with this article, when undertaking the following projects:

(A) Highway maintenance or safety projects, including, but not limited to, bridge deck sealing, bridge and asphalt pavement overlays, concrete pavement slab work, repair and replacement of active transportation and complete streets facilities, joint seals, installation of new traffic safety devices, rumble strips, and traffic control devices, and other safety, bridge repair, or highway repair projects that are basic and repetitive.

(B) Traffic management and detection system installation, replacement, and repair.

(C) Tree removal.

(D) Clearing and grubbing.

(E) Culvert installation and repairs.

(F) Improvements to, removal of, and installation of facilities, systems, and traffic control devices needed to comply with the federal Americans with Disabilities Act of 1990 (Public Law 101–336).

(G) Facility repairs, including, but not limited to, building maintenance.

(H) Installation of stormwater pollution control devices.

(I) Safety barriers.

(2) No job order contract may be awarded for adding vehicular travel lanes.

(3) The department shall, when undertaking job order contracting for the projects specified in paragraph (1), establish a procedure to prequalify job order contractors for projects and shall prepare a set of documents for each job order contract. The documents shall include all of the following:

(A) A unit price catalog of construction tasks with preestablished unit prices.

(B) Job order contract specifications.

(C) Any other information deemed necessary to adequately describe the department’s needs.

(4) Based on the documents prepared under paragraph (3), the department shall develop a system for evaluating job order contract bids for the award of job order contracts. The award of a job order contract shall progress as follows:

(A) The department shall prepare a request for bids for job order contracts based on the documents prepared under paragraph (3) that invites prospective contractors to submit sealed bids in the manner prescribed by the department.

(B) Each bidding contractor shall include in its bid one or more adjustment factors to the established unit prices provided in the request for bids based on the advertised technical specifications.

(C) Each bidding job order contractor shall identify any subcontractors to be used for the job orders performed pursuant to the awarded job order contract pursuant to Chapter 4 (commencing with Section 4100) of Part 1 of Division 2 of the Public Contract Code.

(D) The award of job order contracts, if any, shall be made to one or more job order contractors that the department determines to be qualified and responsive based upon preestablished criteria to be determined by the department.

(5) Any job order contractor that is selected for a project pursuant to this article shall possess or obtain sufficient bonding to cover the contract amount for construction services and risk and liability insurance as the department may require.

(6) Nothing in this article is intended to affect, expand, alter, or limit any rights or remedies otherwise available at law.

(d) Notwithstanding paragraph (3) of subdivision (c) and subparagraph (B) of paragraph (4) of subdivision (c), the department may, in accordance with the requirements of Section 14838.7 of the Government Code, award a job order contract pursuant to this article with an estimated value of greater than five thousand dollars ($5,000) but less than the cost limit, as specified in subdivision (b) of Section 10105 of the Public Contract Code, after obtaining written bid submittals from two or more certified small businesses, including microbusinesses, or from two or more disabled veteran business enterprises.

(e) Job order contracts may be executed for an initial contract term of no more than 12 months with the option of extending or renewing the job order contract for two 12-month periods. All extensions or renewals shall be priced as provided in the request for bids. An extension or renewal shall be mutually agreed to by the department and the job order contractor.

(f) On or before July 1 of each year, until July 1, 2033, the department shall publish on its internet website regarding the status of all active job order contracts and those job order contracts that expired in the previous year. The report shall include, but is not limited to, all of the following information:

(1) A listing of all projects completed under each job order contract.

(2) The name of each job order contractor awarded a contract.

(3) The estimated and actual project costs.

(4) The estimated procurement time savings.

(5) A description of any written protests concerning any aspect of the solicitation, bid, proposal, or award of the job order contract, including, but not limited to, the resolution of the protests.

(6) A summary of small business usage.

(7) A summary of Labor Code violations, including, but not limited to, prevailing wage, apprenticeship, and health and safety statutes to the extent information is readily available.

(8) The percentage of the project completed by subcontractors certified by the Department of General Services as small business and disabled veteran business enterprise.

(9) Recommendations regarding the most appropriate uses for the job order contract process.

(g) Job order contracts shall be monitored by the department’s labor compliance program for compliance with federal and state labor laws.

217.2.

 This article shall remain in effect only until December 31, 2033, and as of that date is repealed.

SEC. 5.

 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.

SEC. 6.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:

To promote environmental protection and safeguard economic development of California’s diverse public resources and people, and enhance the state’s ability to maximize federal funding to support those efforts, it is necessary for this act to take effect immediately.