BILL NUMBER: AB 1442 CHAPTERED 09/10/01 CHAPTER 267 FILED WITH SECRETARY OF STATE SEPTEMBER 10, 2001 APPROVED BY GOVERNOR SEPTEMBER 8, 2001 PASSED THE ASSEMBLY AUGUST 23, 2001 PASSED THE SENATE JULY 21, 2001 AMENDED IN SENATE JUNE 13, 2001 AMENDED IN ASSEMBLY MAY 14, 2001 AMENDED IN ASSEMBLY APRIL 2, 2001 INTRODUCED BY Assembly Member Pescetti FEBRUARY 23, 2001 An act to amend Sections 3400 and 10129 of the Public Contract Code, relating to public contracts. LEGISLATIVE COUNSEL'S DIGEST AB 1442, Pescetti. Contract specifications: substitutions. Existing law provides that a state agency, political subdivision, municipal corporation, district, or public officer responsible for letting public works contracts may not draft bid specifications in a manner that limits the bidding to any one concern or product, except under certain circumstances. Specification of a certain product is allowed if the specification lists at least 2 brands or trade names of comparable quality and is followed by the words "or equal" so that bidders may furnish any equal products. This bill would revise these provisions so that the restrictions on the manner of drafting bid specifications would not apply if an awarding authority, either state or local, makes a finding that a particular material or service is designated by a brand name, either to make a field test or to match a material or service in use on a particular public improvement. Existing law governing state agencies provides that if no time period is specified for submission of data substantiating a request for a substitution of "an equal" item, data may be submitted for 35 days after the award of the contract. The bill would also make this provision applicable to local governments. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 3400 of the Public Contract Code is amended to read: 3400. (a) No agency of the state nor any political subdivision, municipal corporation, or district, nor any public officer or person charged with the letting of contracts for the construction, alteration, or repair of public works shall draft or cause to be drafted specifications for bids, in connection with the construction, alteration, or repair of public works, (1) in a manner that limits the bidding, directly or indirectly, to any one specific concern, or (2) calling for a designated material, product, thing, or service by specific brand or trade name unless the specification lists at least two brands or trade names of comparable quality or utility and is followed by the words "or equal" so that bidders may furnish any equal material, product, thing, or service. In applying this section, the specifying agency shall, if aware of an equal product manufactured in this state, name that product in the specification. In those cases involving a unique or novel product application required to be used in the public interest, or where only one brand or trade name is known to the specifying agency, it may list only one. Specifications shall provide a period of time prior to or after, or prior to and after, the award of the contract for submission of data substantiating a request for a substitution of "an equal" item. If no time period is specified, data may be submitted any time within 35 days after the award of the contract. (b) Subdivision (a) is not applicable if the awarding authority, or its designee, makes a finding that is described in the invitation for bids or request for proposals that a particular material, product, thing, or service is designated by specific brand or trade name for either of the following purposes: (1) In order that a field test or experiment may be made to determine the product's suitability for future use. (2) In order to match other products in use on a particular public improvement either completed or in the course of completion. SEC. 2. Section 10129 of the Public Contract Code is amended to read: 10129. (a) Notwithstanding Section 3400, no agency of the state charged with the letting of contracts for the construction, alteration, or repair of public works may draft or cause to be drafted specifications for bids, in connection with the construction, alteration, or repair of public works, (1) in a manner that limits the bidding, directly or indirectly, to any one specific concern, or (2) calling for a designated material, product, thing, or service by specific brand or trade name unless the specification lists at least two brands or trade names of comparable quality or utility and is followed by the words "or equal" so that bidders may furnish any equal material, product, thing, or service. In applying this section, the awarding authority shall, if aware of an equal product manufactured in this state, name that product in the specification. In those cases involving a unique or novel product application required to be used in the public interest, or where only one brand or trade name is known to the awarding authority, it may list only one. Specifications shall provide a period of time prior to or after, or prior to and after, the award of the contract for submission of data substantiating a request for a substitution of "an equal" item. If no time period is specified, data may be submitted any time within 35 days after the award of the contract. (b) Subdivision (a) is not applicable if the awarding authority, or its designee, makes a finding that is described in the invitation for bids or request for proposals that a particular material, product, thing, or service is designated by specific brand or trade name for either of the following purposes: (1) In order that a field test or experiment may be made to determine the product's suitability for future use. (2) In order to match other products in use on a particular public improvement either completed or in the course of completion.