Bill Text: CA SB778 | 2021-2022 | Regular Session | Amended

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Bill Title: Buy Clean California Act: Environmental Product Declarations: concrete.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed - Dead) 2022-06-15 - June 15 set for second hearing. Failed passage in committee. (Ayes 2. Noes 4.) [SB778 Detail]

Download: California-2021-SB778-Amended.html

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Amended  IN  Assembly  May 24, 2022

Amended  IN  Assembly  June 21, 2021

Amended  IN  Senate  May 03, 2021

Amended  IN  Senate  April 19, 2021

Amended  IN  Senate  April 08, 2021

Amended  IN  Senate  March 11, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill

No. 778

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Introduced by Senator Becker

February 19, 2021

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An act to amend Section 3501 of, and to add Section 3503.1 to, the Public Contract Code, relating to public contracts.

LEGISLATIVE COUNSEL'S DIGEST

SB 778, as amended, Becker. Buy Clean California Act: Environmental Product Declarations: concrete.

The State Contract Act governs the bidding and award of public works contracts by specific state departments and requires an awarding department, before entering into any contract for a project, to prepare full, complete, and accurate plans and specifications and estimates of cost. The Buy Clean California Act, requires, among other things, the Department of General Services to establish a maximum acceptable global warming potential for specific eligible materials, which include carbon steel rebar, flat glass, mineral wool board insulation, and structural steel. The Buy Clean California Act requires an awarding authority, as defined, to require a successful bidder to submit a current Environmental Product Declaration, developed in accordance with specified standards, for each type of eligible material proposed to be used on an eligible project, as defined.

This bill would require require, as part of the Buy Clean California Act, beginning July 1, 2022, 2023, an awarding authority to require a successful bidder for a contract for an eligible project, as separately defined for purposes of these requirements, to submit a current as defined, to submit a report, within 90 days of the completion of the project, that includes the amount used and an Environmental Product Declaration, as defined, that is current at the time of installation for each concrete product before the product is installed in the project, as provided. The bill would require the awarding authority, beginning January 1, 2023, when letting contracts that include concrete for use in an eligible project to require all bids to include the global warming potential, as defined, for each concrete product that will be delivered, the total concrete production CO2e, as defined, for all concrete products included in the bid, and an estimate of delivery emissions, as defined, from transporting the concrete. product used in the project. The bill would require a concrete supplier that is providing concrete products to a successful bidder to provide the successful bidder with an Environmental Product Declaration for each concrete product provided by the supplier to the project. The bill would require the department, in consultation with the State Air Resources Board, on or before January 1, 2024, 2025, to establish, and the department to establish and publish in the State Contracting Manual, in a department management memorandum, or on the department’s internet website, the maximum global warming potential global warming potential (GWP) benchmarks for each performance class of concrete at the regional industry average global warming potential for concrete within each project region and performance class, region, as provided. The bill would require a successful bidder to demonstrate compliance with these requirements by demonstrating that the global warming potential in the Environmental Product Declarations submitted for each concrete product results in a total concrete production CO2e that is less than or equal to the total concrete production CO2e of its bid and by providing any other documentation required by the department. The bill would require, beginning January 1, 2024, that a bid that includes a concrete product with a global warming potential higher than the maximum acceptable global warming potential for the concrete product’s performance class and project region be disqualified. The bill would require the department to issue guidelines to assist awarding authorities and contracting personnel in implementing these requirements. The bill would require the department, in consultation with the state board, to update, at least once every 3 years, the GWP benchmarks for each performance class of concrete within each project region, as provided.

This bill would require an awarding authority to apply a low-embodied carbon discount, as defined, of up to 5% of a bid’s concrete price to a bid with low total concrete CO2e, as defined, in comparison to other qualified bids for an eligible project. The bill would also require an awarding authority to apply a breakthrough technology discount, as defined, of up to 3% of a bid’s concrete price to a bid that uses a qualified breakthrough technology, as determined pursuant to criteria developed by the state board on or before January 1, 2023. The bill would require the department, in consultation with the state board, to establish rules and guidelines that include a method for determining the total CO2e expected from the concrete for each bid and for determining how specific discounts shall be determined and applied to a bid, as provided.

This bill would, beginning January 1, 2025, require an awarding authority to include in a specification for bids for an eligible project a requirement that the total project concrete carbon dioxide equivalent (CO2e) does not exceed the project concrete CO2e limit and would specify that this requirement also applies to design-build or other project structures. The bill would require an awarding authority to require a successful bidder for a contract for an eligible project to submit, as a part of the report required by this bill described above, an analysis of the total project concrete CO2e demonstrating compliance with that limit. The bill would specify the liability of a supplier of concrete products for an eligible project for penalties and damages that may be imposed by an awarding authority that is attributable to a violation of the requirements of the bill.

This bill would exempt from its requirements concrete products under certain conditions. The bill would require an awarding authority, within 45 days of receiving a request for an exemption for concrete products from a successful bidder or a concrete supplier, to provide a successful bidder with a determination as to whether an exemption applies.

The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment.

This bill would specify that an action to implement the requirements of the bill is not a project for purposes of CEQA.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

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

SECTION 1.

 Section 3501 of the Public Contract Code is amended to read:

3501.

 Unless otherwise provided, the following definitions govern the construction of this article:

(a) “Awarding authority” means any of the following:

(1) A state agency for a contract for a public works project that is subject to the State Contract Act (Chapter 1 (commencing with Section 10100) of Part 2).

(2) The Regents of the University of California for a contract for a public works project that is subject to Chapter 2.1 (commencing with Section 10500) of Part 2.

(3) The Trustees of the California State University for a contract for a public works project that is subject to the California State University Contract Law (Chapter 2.5 (commencing with Section 10700) of Part 2).

(b) “Department” means the Department of General Services.

(c) “Eligible materials” means any of the following:

(1) Carbon steel rebar.

(2) Flat glass.

(3) Mineral wool board insulation.

(4) Structural steel.

(d) “Eligible project” means a project that the awarding authority determines will require eligible materials.

(e) “Greenhouse gas emissions” means emissions of a “greenhouse gas” as set forth in subdivision (g) of Section 38505 of the Health and Safety Code.

SEC. 2.Section 3503.1 is added to the Public Contract Code, to read:

3503.1.

(a)For purposes of this section, the following definitions apply:

(1)“Breakthrough technology” means a technology, method, or product that has the potential to significantly reduce the GWP of concrete once fully commercialized and implemented, but is not yet widely adopted in the market.

(2)“Breakthrough technology discount” means a discount that is applied to one or more bids for an eligible project that incorporates a qualified breakthrough technology.

(3)“CO2e” has the same meaning as “carbon dioxide equivalent” set forth in subdivision (c) of Section 38505 of the Health and Safety Code.

(4)“Concrete” means a structural concrete product, including ready-mix, shotcrete, precast, and concrete masonry units.

(5)“Delivery emissions” means the product of all of the following:

(A)The distance in miles travelled by all concrete mixer trucks or other delivery vehicles used to transport the concrete from a production facility to a job site, including return travel.

(B)The volume of fuel used per mile travelled by all concrete mixer trucks or other delivery vehicles used to transport the concrete.

(C)The CO2e per volume of fuel used by all concrete mixer trucks or other delivery vehicles used to transport concrete, based on the carbon intensity of the fuel used as specified by the Low Carbon Fuel Standard regulations (Subarticle 7 (commencing with Section 95480) of Title 17 of the California Code of Regulations).

(6)“Eligible project” means either of the following:

(A)A project for which bids are requested by an awarding authority before January 1, 2025, that requires 500 cubic yards or more or 1,000 metric tons or more of concrete.

(B)A project for which bids are requested by an awarding authority on or after January 1, 2025, that requires 50 cubic yards or more or 100 metric tons or more of concrete.

(7)(A)“Environmental Product Declaration” means a Type III environmental product declaration, as defined by the International Organization for Standardization (ISO) standard 14025 or a similarly robust life-cycle assessment method that has uniform standards in data collection consistent with ISO standard 14025, industry acceptance, and integrity.

(B)An Environmental Product Declaration shall follow nationally or internationally recognized rules for producing Environmental Product Declarations for the subject material, shall follow standards established for life-cycle analysis material reporting of global warming potentials, and shall conform to ISO standards 14025, 14040, 14044, and 21930.

(C)An Environmental Product Declaration shall make use of supply chain-specific data for input materials whenever this data is available.

(D)For precast concrete products that include materials other than concrete, an Environmental Product Declaration shall only be required for the concrete used in making the precast product.

(E)The State Air Resources Board, in an open public process, may establish additional requirements, if feasible and based on widely available data, for an Environmental Product Declaration required by and submitted pursuant to this section to ensure transparency and a fair comparison of the total concrete production CO2e among bidders. These additional requirements may include, but are not limited to, limiting the use of default values or industry averages and requiring actual data quality assessments, including variability in facility, product, and upstream data for key processes.

(8)“Global warming potential” or “GWP” means the CO2e of concrete as reported in an Environmental Product Declaration.

(9)“Low-embodied carbon discount” means a discount that is applied to one or more bids for an eligible project and that is based on the GWP and delivery emissions of each bid relative to all qualified bids.

(10)“Performance-based specifications” means a contract provision that requires that a structural material achieve specified performance outcomes from the use of the structural material, including, but not limited to, outcomes related to the strength, durability, permeability, or other attributes related to the function of the building material for applied uses, as opposed to requiring that a structural material be produced using a specified manufacturing process, design features, technologies, or proportions of constituent materials.

(11)“Performance class” means a classification applied to a concrete product based on performance criteria, including, but not limited to, its compressive strength and the type of structuralconcrete product, in order to group together concrete products with similar performance attributes.

(12)“Project region” means the Department of Transportation district in which an eligible project is located.

(13)“Total concrete CO2e” means the sum of the total concrete production CO2e and delivery emissions.

(14)“Total concrete production CO2e” means the CO2e for all concrete products included in a bid. The total concrete production CO2e shall be calculated as the sum of the GWP for each concrete product multiplied by the anticipated amount of that concrete product that will be delivered for the project.

(b)Beginning January 1, 2022, to the extent practicable, an awarding authority shall use only performance-based specifications to describe the requirements for concrete to be used as a structural material when requesting a bid or proposal for a project contract.

(c)Beginning July 1, 2022, an awarding authority shall require a successful bidder for a contract for an eligible project to submit a current Environmental Product Declaration for each concrete product before the product is installed in the project. Until July 1, 2023, an awarding authority may allow a successful bidder up to 90 days after product installation to submit a current Environmental Product Declaration.

(d)On or before January 1, 2023, the department, in consultation with the Department of Transportation, shall establish performance classes for concrete products with similar performance attributes.

(e)(1)Beginning January 1, 2023, when letting contracts that include concrete for use in an eligible project, an awarding authority shall require all bids to include the GWP for each concrete product that will be delivered, the total concrete production CO2e for all concrete products included in the bid, and an estimate of the delivery emissions from transporting the concrete.

(2)Beginning January 1, 2024, a bid that includes a concrete product with a GWP higher than the maximum acceptable GWP for the concrete product’s performance class and project region established pursuant to subdivision (f) shall be disqualified.

(3)(A)For purposes of bid assessment and selection, an awarding authority shall apply a low-embodied carbon discount of up to 5 percent of a bid’s concrete price to a bid with low total concrete CO2e in comparison to other qualified bids for an eligible project.

(B)The department, in consultation with the State Air Resources Board, shall establish rules and guidelines that include both of the following:

(i)A method for determining the total concrete CO2e expected from the concrete for each bid.

(ii)Rules for how specific discounts shall be determined and applied to a bid based on the total concrete CO2e of each bid relative to other qualified bids and relative to the average total concrete CO2e among all qualified bids. The rules developed by the department pursuant to this clause shall include all of the following requirements:

(I)A bid’s total concrete CO2e shall be below the average total concrete CO2e of all qualified bids to receive any discount.

(II)A bid’s total concrete CO2e shall be at least 10 percent below the average total concrete CO2e of all qualified bids to receive the maximum percentage discount.

(III)The bid with the lowest total concrete CO2e shall receive the largest percentage discount among all bids, while proportionally smaller percentage discounts may be applied to some or all of the other bids with total concrete CO2e below the average total concrete CO2e of all qualified bids.

(4)(A)An awarding authority shall additionally apply a breakthrough technology discount of up to 3 percent of a bid’s concrete price to a bid that uses a qualified breakthrough technology.

(B)The department shall establish rules and guidelines pursuant to which specific discounts shall be determined and applied to a bid based on how significant the use of one or more qualified breakthrough technologies is in the concrete to be delivered.

(C)On or before January 1, 2023, the State Air Resources Board shall establish criteria for qualifying a technology, method, or product as a breakthrough technology and shall maintain an annually updated directory of qualified breakthrough technologies on its internet website.

(5)(A)(i)A successful bidder shall comply with this subdivision by demonstrating that the GWP in the Environmental Product Declarations submitted for each concrete product pursuant to subdivision (c) results in a total concrete production CO2e that is less than or equal to the total concrete production CO2e of its bid and by providing any other documentation that the department may require to verify consistency with the delivery emissions provided in the bid.

(ii)For the purpose of determining compliance with this subdivision, the total concrete production CO2e shall be calculated using the same anticipated concrete product volumes that were used at the time of bidding so that changes in actual project volumes do not impact compliance verification.

(B)(i)Failure to comply with subparagraph (A) shall result in a payment deduction. The deduction shall consider the difference between the total concrete CO2e of the bid and the actual total concrete CO2e, including material differences in the GWP of the installed products and delivery emissions.

(ii)An awarding authority may consider whether the bidder was unable to comply with subparagraph (A) due to a disruption in the supply chain for one or more constituent materials that the bidder could neither reasonably foresee nor remedy in a timely fashion.

(6)The department shall issue guidelines to assist awarding authorities and contracting personnel in implementing this subdivision.

(f)

(1)(A)On or before January 1, 2024, the State Air Resources Board shall establish, and the department shall publish in the State Contracting Manual, in a department management memorandum, or on the department’s internet website, the maximum acceptable GWP for concrete at the industry average of GWP for concrete within each project region and performance class.

(B)The State Air Resources Board shall determine the industry average GWP for concrete within each project region and performance class by consulting the Environmental Product Declarations submitted pursuant to subdivision (c), the GWP values in competitive bids submitted pursuant to subdivision (e), and other relevant data.

(2)To ensure that the averages used to establish the maximum acceptable GWP values for concrete products reflect the range of reasonably cost-competitive products available in the region, the State Air Resources Board may exclude from its analysis of average GWP values outlier bids submitted pursuant to subdivision (e). For purposes of this paragraph, an “outlier bid” means either of the following:

(A)A bid that includes a concrete price that is at least 20 percent higher than the concrete price in the successful bid.

(B)A bid that the State Air Resources Board otherwise deems uncompetitive.

(3)At least once every three years, the State Air Resources Board shall update the maximum acceptable GWP for concrete within each project region and performance class by following the process established in paragraph (1) and considering data obtained since the prior update. The department shall update the State Contracting Manual, department management memorandum, or department internet website to reflect the adjustments made by the State Air Resources Board.

(g)(1)Beginning January 1, 2024, if a contract for an eligible project is awarded without specifying during the bidding process the amount or GWP for each concrete product that will be delivered pursuant to subdivision (e), the successful bidder shall still comply with the maximum acceptable GWP established pursuant to subdivision (f) for each concrete product that is used in the project.

(2)A successful bidder shall demonstrate compliance with this subdivision by submitting, pursuant to subdivision (c), for each concrete product an Environmental Product Declaration that includes GWP values that are less than or equal to the maximum acceptable GWP established for each concrete product’s project region and performance class pursuant to subdivision (f).

(3)(A)Failure to comply with this subdivision shall result in a payment deduction. The deduction shall consider the total excess CO2e in the installed concrete, which shall be calculated as the difference between the GWP of the concrete installed and the maximum acceptable GWP for each concrete product’s project region and performance class, multiplied by the total amount of each concrete product installed.

(B)An awarding authority may consider whether the bidder was unable to comply with this subdivision due to a disruption in the supply chain for one or more constituent materials that the successful bidder could neither reasonably foresee nor remedy in a timely fashion.

(h)The department shall maintain a publicly accessible database with projects anonymized to report the GWP data contained in all bids and Environmental Product Declarations submitted pursuant to subdivisions (c) and (e). The department may contract with a qualified third party to create and maintain the database.

(i)This section does not apply to an eligible project if the awarding authority determines, upon written justification published on its internet website, that requiring concrete to meet the requirements of this section would be technically infeasible, would significantly delay project completion, or would result in only one producer being able to provide the concrete needed by the eligible project.

(j)This section does not apply if the awarding authority determines that an emergency exists, as defined in Section 1102, or that any of the circumstances described in subdivisions (a) to (d), inclusive, of Section 10122 exist.

SEC. 2.

 Section 3503.1 is added to the Public Contract Code, to read:

3503.1.

 (a) For purposes of this section, the following definitions apply:

(1) “Amount used” means the amount of a covered concrete product that is billed to the successful bidder or the awarding agency, as appropriate, by the concrete supplier.

(2) “CO2e” has the same meaning as “carbon dioxide equivalent” set forth in Section 38505 of the Health and Safety Code.

(3) “Concrete” means a concrete product, including ready-mix, shotcrete, concrete masonry units, and concrete used in precast concrete products.

(4) “Concrete supplier” means a concrete manufacturer or provider of concrete products to an eligible project.

(5) “Concrete supplier CO2e limit” means the maximum CO2e allowed for all covered concrete products provided by a concrete supplier for an eligible project. The concrete supplier CO2e limit shall be calculated as the sum of the GWP benchmark for each covered concrete product from the concrete supplier multiplied by the amount used of that covered concrete product in the eligible project.

(6) “Covered concrete product” means a concrete product delivered to an eligible project for which a GWP benchmark has been established and the concrete product is not exempted from this section pursuant to subdivision (h) or (i).

(7) “Eligible project” means either of the following:

(A) A project for which bids are requested by an awarding authority before January 1, 2027, that requires 500 cubic yards or more or 1,000 metric tons or more of concrete.

(B) A project for which bids are requested by an awarding authority on or after January 1, 2027, that requires 50 cubic yards or more or 100 metric tons or more of concrete.

(8) (A) “Environmental Product Declaration” means a Type III environmental product declaration, as defined by the International Organization for Standardization (ISO) standard 21930 and the relevant product category rule for each type of concrete product or a similarly robust life-cycle assessment method that conforms to ISO 21930 and the relevant product category rule for each type of concrete product.

(B) An Environmental Product Declaration shall make use of supply chain-specific data for input materials whenever this data is available.

(C) For precast concrete products that include materials other than concrete, the Environmental Product Declaration required by this section shall be for each concrete product used in making the precast concrete product rather than an Environmental Product Declaration for the precast product itself.

(D) The State Air Resources Board, in an open public process and in consultation with the department, may do both of the following:

(i) Establish additional requirements, if feasible and based on widely available data, for an Environmental Product Declaration required by, and submitted pursuant to, this section to ensure transparency and a fair comparison of the total GWP of concrete across producers within a performance class. These additional requirements may include, but are not limited to, limiting the use of default values or industry averages and requiring actual data quality assessments, including variability in facility, product, and upstream data for key processes.

(ii) Establish rules governing when changes to input factors used in calculating a concrete product’s GWP, including, but not limited to, changes in the GWP of supply chain inputs, changes to default values, or changes to the concrete manufacturer’s direct emissions constitute a material change in the concrete product’s GWP that requires a revised Environmental Product Declaration pursuant to subparagraph (B).

(E) An Environmental Product Declaration for a concrete product that is developed and maintained according to the requirements of this section shall be considered a valid and accurate representation of the environmental attributes of the concrete product for the purpose of compliance with this section.

(9) “Excess project CO2e” means the amount, if any, by which the total project concrete CO2e exceeds the project concrete CO2e limit.

(10) “Global warming potential” or “GWP” means the CO2e of concrete as reported in an Environmental Product Declaration.

(11) “GWP benchmark” means the GWP benchmark for a concrete product based on the concrete product’s region and performance class determined pursuant to subdivision (e).

(12) “Performance-based specifications” means a contract provision that requires a material to achieve specified performance outcomes from the use of the material, including, but not limited to, outcomes related to the strength, durability, permeability, color, texture, thermal performance, or other attributes related to the function of the material for applied uses over its service life, as opposed to requiring that a material be produced using a specified manufacturing process, technologies, or proportions of constituent materials.

(13) “Performance class” means a classification applied to a concrete product based on performance criteria, including, but not limited to, its compressive strength and the type of concrete product, in order to group together concrete products with similar performance attributes.

(14) “Project concrete CO2e limit” means the maximum CO2e allowed for an eligible project. The project concrete CO2e limit shall be calculated as the sum of the GWP benchmark for each covered concrete product multiplied by the amount used of that covered concrete product in the eligible project.

(15) “Project region” means the Department of Transportation district in which an eligible project is located.

(16) “Proposal to supply concrete” means a contract, subcontract, purchase order, bid, or other instrument by or between a concrete supplier and a successful bidder, in which the concrete supplier agrees to provide concrete products to an eligible project.

(17) “Total concrete supplier CO2e” means the total CO2e for all covered concrete products provided by a concrete supplier for use in an eligible project. The total concrete supplier CO2e shall be calculated as the sum of the GWP for each covered concrete product from the concrete supplier multiplied by the amount used of that covered concrete product in the eligible project.

(18) “Total project concrete CO2e” means the total CO2e for all covered concrete products used in an eligible project. The total project concrete CO2e shall be calculated as the sum of the GWP for each covered concrete product multiplied by the amount used of that covered concrete product in the eligible project.

(b) Beginning January 1, 2023, to the extent practicable, an awarding authority shall use only performance-based specifications to describe the requirements for concrete when requesting a bid or proposal for a project contract.

(c) (1) Beginning July 1, 2023, an awarding authority shall require a successful bidder for a contract for an eligible project to submit a report within 90 days of the completion of the project. The report shall include the amount used and an Environmental Product Declaration that is current at the time of installation for each concrete product used in the project.

(2) A concrete supplier that is providing covered concrete product to a successful bidder shall provide the successful bidder with an Environmental Product Declaration for each covered concrete product provided by the concrete supplier to the project.

(d) On or before January 1, 2024, the department, in consultation with the Department of Transportation, shall establish performance classes for concrete products with similar performance attributes.

(e) (1) On or before January 1, 2025, the department, in consultation with the State Air Resources Board, shall establish and shall publish in the State Contracting Manual, in a department management memorandum, or on the department’s internet website the GWP benchmarks for each performance class of concrete at the regional industry average of GWP for concrete within each project region.

(2) The department shall determine the regional industry average GWP for each performance class of concrete within each project region by consulting the Environmental Product Declarations submitted pursuant to subdivision (c) and other relevant data.

(3) At least once every three years, the department, in consultation with the State Air Resources Board, shall update the GWP benchmark for each performance class of concrete within each project region by taking into account the state’s greenhouse gas emissions reduction targets and data obtained since the prior update about the levels of GWP that can be achieved by concrete suppliers for each performance class of concrete within each product region. In determining the updated GWP benchmarks, the department shall consider technological advancements and progress in addressing barriers to production, deployment, and adoption of low-carbon concrete. The department shall update the State Contracting Manual, department management memorandum, or information available on the department’s internet website to reflect any changes to the GWP benchmarks.

(f) (1) Beginning January 1, 2025, an awarding authority shall include in a specification for bids for an eligible project a requirement that the total project concrete CO2e shall not exceed the project concrete CO2e limit. The specification for the bids shall identify any concrete products that will be excluded from the requirements of this section because they are not considered covered concrete products.

(2) The requirement that the total project concrete CO2e shall not exceed the project concrete CO2e limit specified in paragraph (1) also applies to design-build projects or other project structures in which the awarding authority does not provide detailed specifications for bids.

(3) (A) An awarding authority may include, in a specification for bids for an eligible project, GWP benchmarks for concrete products that are lower than the GWP benchmarks established pursuant to subdivision (e) and those GWP benchmarks shall be used when calculating the project concrete CO2e limit for the eligible project.

(B) An awarding authority using the GWP benchmarks described pursuant to subparagraph (A) shall include, in the specification for bids, a statement documenting why the awarding authority believes that those GWP benchmarks are achievable and will not preclude fair market competition for providing covered concrete products to the eligible project.

(4) An awarding authority shall require a successful bidder for a contract for an eligible project to submit, as a part of the report required pursuant to subdivision (c), an analysis of the total project concrete CO2e demonstrating that the total project concrete CO2e did not exceed the project concrete CO2e limit for the project.

(5) (A) If the total project concrete CO2e exceeds the project concrete CO2e limit as demonstrated by the analysis required pursuant to paragraph (4), any penalties imposed by the awarding authority on the successful bidder shall be limited to financial penalties in an amount proportional to the excess project concrete CO2e. The awarding authority shall specify in the bid documents how the financial penalties shall be calculated.

(B) A concrete supplier’s liability for any penalties or damages imposed under subparagraph (A) shall be limited to the concrete supplier’s proportional share of responsibility in causing the excess project concrete CO2e.

(6) Except as provided in paragraph (7), a concrete supplier that supplies covered concrete product to a successful bidder of an eligible project shall indemnify the successful bidder for any penalties or damages that may be levied against the successful bidder that are directly attributable to any of the following:

(A) Failing or refusing to provide to the successful bidder Environmental Product Declarations and amounts used for each covered concrete product to enable the successful bidder to meet the reporting requirements of this section.

(B) Providing declarations for covered concrete products to a successful bidder pursuant to paragraph (2) of subdivision (c) that an awarding authority determines are invalid or inaccurate Environmental Product Declarations.

(C) Providing covered concrete products to the successful bidder with a total concrete supplier CO2e that exceeds the concrete supplier CO2e limit.

(7) A concrete supplier shall not be liable for penalties or damages imposed by an awarding authority for a violation of this section unless a successful bidder or awarding authority, as appropriate, does both of the following:

(A) Provides the concrete supplier with the specifications for covered concrete products required for an eligible project, including the required GWP benchmark for each concrete product, when requesting a proposal to supply concrete.

(B) Allows the concrete supplier reasonable time to modify or withdraw a previously submitted proposal to supply concrete, in whole or in part, without penalty, if there are material changes in the specifications for covered concrete products required by the awarding authority or by the successful bidder, as appropriate, that could impact the concrete supplier’s ability to meet the new specifications within the concrete supplier CO2e limit.

(g) The department shall maintain a publicly accessible database with projects anonymized to report the GWP data contained in all Environmental Product Declarations submitted pursuant to subdivision (c). The department may contract with a qualified third party to create and maintain the database.

(h) (1) This section does not apply to concrete products delivered to an eligible project during a defined period of time if the awarding authority determines, upon written justification published on its internet website, that requiring those concrete products to meet the requirements of this section would be technically infeasible, would significantly delay project completion, or would result in only one producer being able to provide the concrete needed by the eligible project.

(2) In reaching its determination pursuant to paragraph (1), the awarding authority may consider local market conditions and whether constituent ingredients or other necessary components or processes to manufacture covered concrete products are unavailable or economically impracticable to obtain during the defined period of time.

(i) This section does not apply to concrete products delivered to an eligible project during a defined period of time if the awarding authority determines that an emergency exists, as defined in Section 1102, or that any of the circumstances described in subdivisions (a) to (d), inclusive, of Section 10122 exist.

(j) Within 45 days of receiving a written petition from a successful bidder or from a concrete supplier to the successful bidder that subdivision (h) or (i) applies to a concrete product, the awarding authority shall provide a successful bidder with a determination regarding the applicability of this section to the concrete product. If requesting an exemption for a concrete product due to temporary local market conditions, the petition shall include information that demonstrates that the petitioner could have delivered a concrete product that meets the requirements of this section absent unforeseen circumstances described in the petition.

(k) An action taken to implement this section is not a project for purposes of the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).