BILL NUMBER: AB 387 CHAPTERED
BILL TEXT
CHAPTER 185
FILED WITH SECRETARY OF STATE JULY 22, 2008
APPROVED BY GOVERNOR JULY 22, 2008
PASSED THE SENATE JULY 2, 2008
PASSED THE ASSEMBLY JANUARY 28, 2008
AMENDED IN ASSEMBLY JANUARY 7, 2008
AMENDED IN ASSEMBLY APRIL 17, 2007
INTRODUCED BY Assembly Member Duvall
FEBRUARY 15, 2007
An act to amend Section 20209.7 of the Public Contract Code,
relating to design-build.
LEGISLATIVE COUNSEL'S DIGEST
AB 387, Duvall. Design-build: transit contracts.
Existing law authorizes, until January 1, 2011, transit operators
to enter into a design-build contract, as defined, according to
specified procedures. Existing law requires a transit operator to
select a design-build entity based on either the lowest responsible
bidder or best value for nonrail transit projects that exceed
$2,500,000.
This bill would provide that there would be no cost threshold for
the acquisition and installation of technology applications or
surveillance equipment designed to enhance safety, disaster
preparedness, and homeland security efforts, and would allow those
projects to be awarded based on either the lowest responsible bidder
or best value.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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, building trades, 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.
(3) For the acquisition and installation of technology
applications or surveillance equipment designed to enhance safety,
disaster preparedness, and homeland security efforts, there shall be
no cost threshold and the transit operator may award the contract to
the lowest responsible bidder or by using the best value method.
(g) Except as provided in this section, nothing in this act shall
be construed to affect the application of any other law.