BILL NUMBER: AB 372 CHAPTERED
BILL TEXT
CHAPTER 262
FILED WITH SECRETARY OF STATE SEPTEMBER 14, 2006
APPROVED BY GOVERNOR SEPTEMBER 14, 2006
PASSED THE ASSEMBLY AUGUST 21, 2006
PASSED THE SENATE AUGUST 17, 2006
AMENDED IN SENATE AUGUST 10, 2006
AMENDED IN SENATE JUNE 13, 2006
AMENDED IN SENATE JUNE 8, 2006
AMENDED IN ASSEMBLY JANUARY 11, 2006
AMENDED IN ASSEMBLY JANUARY 4, 2006
INTRODUCED BY Assembly Member Nation
FEBRUARY 11, 2005
An act to amend Sections 20209.5, 20209.7, and 20209.14 of the
Public Contract Code, relating to public contracts.
LEGISLATIVE COUNSEL'S DIGEST
AB 372, Nation Public contracts: transit design-build contracts.
Existing law authorizes transit operators to enter into a
design-build contract, as defined, according to specified procedures.
Existing law repeals these provisions on January 1, 2007. Existing
law requires a transit operator, which includes any transit district,
included transit district, municipal operator, included municipal
operator, or transit development board, as specified, to prepare a
set of documents to describe a project that will be let to a
design-build entity, but does not identify any specifically required
document. Existing law requires a transit operator that undertakes a
design-build project to establish a labor compliance program, as
defined. Existing law requires a transit operator to select the
design-build entity based on either the lowest responsible bidder or
best value, as provided. Existing law prohibits a transit operator
from utilizing the design-build method of procurement for a rail
project, unless that project costs more than $50,000,000.
This bill would extend the duration of these provisions until
January 1, 2011. This bill would expand the definition of a transit
operator to include a consolidated agency, as specified. This bill
would specify that a transit operator is required to establish a
labor compliance program only for a design-build contract and only if
the transit operator does not already have a labor compliance
program, as specified. This bill would require a transit operator to
select the design-build entity, for nonrail transit projects that
exceed $2,500,000, based on either the lowest responsible bidder or
best value. This bill would authorize the design-build method of
procurement for a capital maintenance or capacity-enhancing rail
project with project costs of $25,000,000, or more. This bill would
also require a transit operator to prepare specific documents
regarding a project that will be let to a design-build entity.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 20209.5 of the Public Contract Code is amended
to read:
20209.5. As used in this article, the following terms have the
following meanings:
(a) "Best value" means a value determined by objective criteria
and may include, but is not limited to, price, features, functions,
life-cycle costs, and other criteria deemed appropriate by the
transit district.
(b) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(c) "Design-build entity" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting, architectural, and engineering services as needed
pursuant to a design-build contract.
(d) "RFP" means request for proposal.
(e) "Transit operator" means any transit district, included
transit district, municipal operator, included municipal operator, or
transit development board, as defined in Section 99210 of the Public
Utilities Code, or a consolidated agency as defined in Section
132353.1 of the Public Utilities Code, or any joint powers authority
formed to provide transit service.
SEC. 2. Section 20209.7 of the Public Contract Code is amended to
read:
20209.7. Design-build projects shall progress in a three-step
process, as follows:
(a) The transit operator shall prepare a set of documents setting
forth the scope of the project. The documents shall include, but are
not limited to, the size, type, and desired design character of the
buildings, transit facilities, and site, performance specifications
covering the quality of materials, equipment, and workmanship,
preliminary plans or building layouts, or any other information
deemed necessary to describe adequately the transit operator's needs.
The performance specifications and any plans shall be prepared by a
design professional duly licensed or registered in California.
(b) Any architectural or engineering firm or individual retained
by the transit operator to assist in the development criteria or
preparation of the request for proposal (RFP) is not eligible to
participate in the competition for the design-build entity.
(c) If the transit operator does not already have a labor
compliance program, as defined in Section 1771.5 of the Labor Code,
the transit operator shall establish and enforce a labor compliance
program for the design-build contract containing the requirements
outlined in Section 1771.5 of the Labor Code or shall contract with a
third party to operate this labor compliance program containing the
requirements outlined in Section 1771.5 of the Labor Code. This
requirement applies only to the design-build contract and does not
apply to projects where the transit operator or the design-build
entity has entered into a collective bargaining agreement that binds
all of the contractors performing work on the project, or to any
other project of the transit operator that is not design-build.
(d) (1) Each RFP shall identify the basic scope and needs of the
project or contract, the expected cost range, and other information
deemed necessary by the contracting agency to inform interested
parties of the contracting opportunity.
(2) Each RFP shall invite interested parties to submit competitive
sealed proposals in the manner prescribed by the contracting agency.
(3) Each RFP shall include a section identifying and describing:
(A) All significant factors that the agency reasonably expects to
consider in evaluating proposals, including cost or price and all
nonprice-related factors.
(B) The methodology and rating or weighting process that will be
used by the agency in evaluating competitive proposals and
specifically whether proposals will be rated according to numeric or
qualitative values.
(C) The relative importance or weight assigned to each of the
factors identified in the RFP. If a nonweighted system is used, the
agency shall specifically disclose whether all evaluation factors
other than cost or price, when combined, are any of the following:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(D) If the contracting agency wishes to reserve the right to hold
discussions or negotiations with offerors, it shall specify the same
in the RFP and shall publish separately or incorporate into the RFP
applicable rules and procedures to be observed by the agency to
ensure that any discussions or negotiations are conducted in a fair
and impartial manner.
(e) (1) The transit operator shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the Director of Industrial Relations. The standardized
questionnaire may not require prospective bidders to disclose any
violations of Chapter 1 (commencing with Section 1720) of Part 7 of
Division 2 of the Labor Code committed prior to January 1, 1998, if
the violation was based on a subcontractor's failure to comply with
these provisions and the bidder had no knowledge of the subcontractor'
s violations and the bidder complied with the conditions set forth in
subdivision (b) of Section 1775 of the Labor Code. In preparing the
questionnaire, the director shall consult with the construction
industry, transit operators, and other affected parties. This
questionnaire shall require information relevant to the architecture
or engineering firm that will be the lead on the design-build
project. The questionnaire shall include, but is not limited to, all
of the following:
(A) A listing of all the contractors that are part of the
design-build entity.
(B) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity to complete, projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project.
(C) The licenses, registrations, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(D) Evidence that establishes that the design-build entity has the
capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance, as well as a
financial statement that assures the transit operator that the
design-build entity has the capacity to complete the project.
(E) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code or the
federal Occupational Safety and Health Act of 1970 (P.L. 91-596),
settled against any member of the design-build entity, and
information concerning a contractor member's workers' compensation
experience history and worker safety program.
(F) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance where an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found by an awarding body not to be a responsible bidder.
(G) Any instance where the entity, its owner, officers, or
managing employees defaulted on a construction contract.
(H) Any violations of the Contractors' State License Law (Chapter
9 (commencing with Section 7000) of Division 3 of the Business and
Professions Code), excluding alleged violations of federal or state
law, including the payment of wages, benefits, apprenticeship
requirements, or personal income tax withholding, or of Federal
Insurance Contribution Act (FICA) withholding requirements settled
against any member of the design-build entity.
(I) Information concerning the bankruptcy or receivership of any
member of the entity, and information concerning all legal claims,
disputes, or lawsuits arising from any construction project of any
member of the entity during the past three years, including
information concerning any work completed by a surety.
(J) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members who will participate as
subcontractors in the design-build contract.
(K) Information concerning all settled adverse claims, disputes,
or lawsuits between the owner of a public works project and any
member of the design-build entity during the five-year period
immediately preceding submission of a bid pursuant to this section,
in which the claim, settlement, or judgment exceeds fifty thousand
dollars ($50,000). Information shall also be provided concerning any
work completed by a surety during this period.
(L) In the case of a partnership or other association that is not
a legal entity, a copy of the agreement creating the partnership or
association and specifying that all partners or association members
agree to be liable for full performance under the design-build
contract.
(2) The information required pursuant to this subdivision shall be
verified under oath by the entity and its members in the manner in
which civil pleadings in civil actions are verified. Information that
is not a public record pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code) shall not be open to public inspection.
(f) The transit operator shall establish a procedure for final
selection of the design-build entity. Selection shall be subject to
the following conditions:
(1) In no case shall the transit operator award a contract to a
design-build entity pursuant to this article for a capital
maintenance or capacity-enhancing rail project unless that project
exceeds twenty-five million dollars ($25,000,000) in cost.
(2) For nonrail transit projects that exceed two million five
hundred thousand dollars ($2,500,000), the transit operator may award
the project to the lowest responsible bidder or by using the best
value method.
SEC. 3. Section 20209.14 of the Public Contract Code is amended to
read:
20209.14. This article shall remain in effect only until January
1, 2011, and as of that date is repealed.
SEC. 4. This act shall only apply to transit projects as specified
in Section 20209.13 of the Public Contract Code.