BILL NUMBER: SB 614 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 15, 2007
AMENDED IN SENATE MAY 2, 2007
AMENDED IN SENATE APRIL 23, 2007
INTRODUCED BY Senator Simitian
(Coauthors: Senators Alquist and Torlakson)
FEBRUARY 22, 2007
An act to amend Sections 17250.20, 17250.30, 17250.35, 81700, and
81702 of, and to repeal Sections 81700.5 and 81700.7 of, the
Education Code, relating to public works.
LEGISLATIVE COUNSEL'S DIGEST
SB 614, as amended, Simitian. Public works: design-build
contracts.
(1) Existing law authorizes, until January 1, 2010, a school
district governing board to enter into a design-build contract, as
defined, in which factors in addition to price and cost may be
considered in awarding a contract for the design and construction of
a school facility that exceeds $10,000,000.
This bill instead would authorize a school district governing
board to enter into those contracts that exceed $2,000,000.
(2) Existing law authorizes the design-build entity to withhold
retention proceeds in excess of the percentage specified in the
contract between the school district and the design-build entity from
any payment made by the design-build entity to the subcontractor if
the design-build entity provides written notice to any subcontractor
who is not a member of the design-build entity, prior to or at the
time the bid is requested, that a bond may be required and the
subcontractor subsequently is unable or refuses to furnish a bond.
This bill would delete the requirement that the written notice be
provided prior to or at the time the bid is requested.
(3) Existing law requires each contract with a design-build entity
to provide that no construction or alteration of any school building
is to commence prior to the receipt of the written approval of the
plans, as to the safety of design and construction, from the
Department of General Services.
This bill would define "plans" for these purposes to include plans
for foundations based on design criteria provided by the architect
or structural engineer of the design-build entity that are received
by the Department of General Services prior to the receipt of
completed building plans.
(4) Existing law authorizes the governing boards of 3 specified
community college districts and up to 5 community college facility
construction projects selected by the Chancellor of the California
Community Colleges to enter into a design-build contract, as defined,
until January 1, 2011, in which factors in addition to price and
cost may be considered in awarding a contract for the design and
construction of a community college facility for an amount that
exceeds $10,000,000.
This bill instead would make those provisions applicable to any
community college district governing board and would authorize the
governing board of a community college district to enter into those
contracts that exceed $2,000,000.
(5) This bill would provide that , except as provided in the
bill, nothing in the bill does not affect certain
matters relating to subcontracting restrictions and employer-employee
relations is to be construed to affect the
application of any other law .
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 17250.20 of the Education Code is amended to
read:
17250.20. Upon making a determination by a school district
governing board that it is in the best interest of the school
district, the governing board may enter into a design-build contract
for both the design and construction of a school facility if that
expenditure exceeds two million dollars ($2,000,000) if, after
evaluation of the traditional design, bid, and build process of
school construction and of the design-build process in a public
meeting, the governing board makes written findings that use of the
design-build process on the specific project under consideration will
accomplish one of the following objectives: reduce comparable
project costs, expedite the project's completion, or provide features
not achievable through the traditional design-bid-build method. The
governing board also shall review the guidelines developed pursuant
to Section 17250.40 and shall adopt a resolution approving the use of
a design-build contract pursuant to this article prior to entering
into a design-build contract.
SEC. 2. Section 17250.30 of the Education Code is amended to read:
17250.30. (a) Any design-build entity that is selected to design
and build a project pursuant to this chapter shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omissions insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This chapter does not prohibit a general or engineering contractor
from being designated the lead entity on a design-build entity for
the purposes of purchasing necessary bonding to cover the activities
of the design-build entity.
(b) Any payment or performance bond written for the purposes of
this chapter shall use a bond form developed by the Department of
General Services pursuant to subdivision (g) of Section 14661 of the
Government Code. The purpose of this subdivision is to promote
uniformity of bond forms to be used on school district design-build
projects throughout the state.
(c) (1) All subcontracts that were not listed by the design-build
entity in accordance with Section 17250.25 shall be awarded by the
design-build entity.
(2) The design-build entity shall do all of the following:
(A) Provide public notice of the availability of work to be
subcontracted.
(B) Provide a fixed date and time on which the subcontracted work
will be awarded.
(3) Subcontractors bidding on contracts pursuant to this
subdivision shall be afforded the protections contained in Chapter 4
(commencing with Section 4100) of Part 1 of Division 2 of the Public
Contract Code.
(4) In a contract between the design-build entity and a
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld shall not exceed the percentage specified in the contract
between the school district and the design-build entity. If the
design-build entity provides written notice to any subcontractor who
is not a member of the design-build entity that a bond may be
required and the subcontractor subsequently is unable or refuses to
furnish a bond to the design-build entity, then the design-build
entity may withhold retention proceeds in excess of the percentage
specified in the contract between the school district and the
design-build entity from any payment made by the design-build entity
to the subcontractor.
(5) In accordance with the provisions of applicable state law, the
design-build entity may be permitted to substitute securities in
lieu of the withholding from progress payments. Substitutions shall
be made in accordance with Section 22300 of the Public Contract Code.
(d) The school district shall establish and enforce a labor
compliance program containing the requirements outlined in Section
1771.5 of the Labor Code or shall contract with a third party to
operate a labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code. This requirement shall
not apply to projects where the school district or the design-build
entity has entered into a collective bargaining agreement that binds
all of the contractors performing work on the project.
SEC. 3. Section 17250.35 of the Education Code is amended to read:
17250.35. (a) The minimum performance criteria and design
standards established pursuant to this chapter by a school district
for quality, durability, longevity, and life-cycle costs, and other
criteria deemed appropriate by the school district shall be adhered
to by the design-build entity. Any deviations from those standards
may only be allowed by written consent of the school district. The
governing board may, and is strongly encouraged to, retain the
services of an architect or structural engineer throughout the course
of the project in order to ensure compliance with this chapter. Any
architect or structural engineer retained pursuant to this
subdivision shall be duly licensed and registered in California.
(b) The school district governing board shall be the employer of
the project inspector. The project inspector shall be fully
independent from any member of the design-build entity and shall not
have an affiliation with any member of the design-build entity or any
of the project subcontractors. The project inspector shall act under
the direction of either the Director of General Services or a
competent, qualified agent of the school district.
(c) The total price of the project shall be determined either upon
receipt of the lump-sum bids as set forth in paragraph (1) of
subdivision (c) of Section 17250.25, or by completion of the process
pursuant to paragraph (2) of subdivision (c) of Section 17250.25.
(d) (1) Each contract with a design-build entity shall provide
that no construction or alteration of any school building pursuant to
this section shall commence prior to the receipt of the written
approval of the plans, as to the safety of design and construction,
from the Department of General Services.
(2) For purposes of this subdivision, "plans" includes plans for
foundations based on design criteria provided by the architect or
structural engineer of the design-build entity that are received by
the Department of General Services prior to the receipt of completed
building plans.
(3) Compliance with paragraph (1) shall be deemed to be in
compliance with Sections 17267 and 17297.
(e) The design-build entity shall be liable for building the
facility to specifications set forth in the design-build contract in
the absence of contractual language to the contrary.
SEC. 4. Section 81700 of the Education Code is amended to read:
81700. (a) It is the intent of the Legislature to enable
community college districts to utilize safe and cost effective
options for building and modernizing community college facilities.
The Legislature has recognized the merits of the design-build
procurement process in the past by authorizing its use for projects
undertaken by the University of California, specified local
government projects, including school districts, and state office
buildings.
(b) The Legislature also finds and declares that community college
districts utilizing a design-build contract require a clear
understanding of the roles and responsibilities of each participant
in the design-build process. The benefits of a design-build contract
project delivery system include an accelerated completion of the
projects, cost containment, reduction of construction complexity, and
reduced exposure to risk for the community college district. The
Legislature also finds that the cost effective benefits to the
community college districts are achieved by shifting the liability
and risk for cost containment and project completion to the
design-build entity.
(c) It is the intent of the Legislature to provide an optional,
alternative procedure for bidding and building community college
construction projects.
(d) In addition, it is the intent of the Legislature that the full
scope of design, construction, and equipment awarded to a
design-build entity under this chapter shall be authorized in a
single funding phase. The funding phase may be authorized
concurrently with, or separately from, the phase that authorizes the
creation of the performance criteria and concept drawings.
(e) It is the intent of the Legislature that design-build
procurement as authorized by this chapter shall not be construed to
extend, limit, or change in any manner the legal responsibility of
public agencies and contractors to comply with existing laws.
SEC. 5. Section 81700.5 of the Education Code is repealed.
SEC. 6. Section 81700.7 of the Education Code is repealed.
SEC. 7. Section 81702 of the Education Code is amended to read:
81702. (a) Upon a determination by a community college district
governing board that it is in the best interest of the community
college district, the governing board may enter into a design-build
contract for both the design and construction of a community college
facility if that expenditure exceeds two million dollars ($2,000,000)
if, after evaluation of the traditional design, bid, and build
process of community college facility construction and of the
design-build process in a public meeting, the governing board makes
written findings that use of the design-build process on the specific
project under consideration will accomplish one of the following
objectives: reduce comparable project costs, expedite the project's
completion, or provide features not achievable through the
traditional design-bid-build method. The governing board shall also
review the guidelines developed pursuant to Section 81706 and shall
adopt a resolution approving the use of a design-build contract
pursuant to this chapter prior to entering into a design-build
contract.
(b) No state funds appropriated for a design-build capital outlay
project may be expended until the Department of Finance and the State
Public Works Board have approved performance criteria, or
performance criteria and concept drawings, for the project to be
financed from the appropriation for capital outlay.
SEC. 8. This act shall not affect (a) the
existing restrictions on subcontracting by a public agency imposed by
any applicable civil service or merit system or (b) the obligation
of any public agency pursuant to state statute or local ordinance to
meet and confer with any labor organization concerning any matter
within the existing statutorily provided scope of representation.
SEC. 8. Except as provided in this act, nothing in
this act shall be construed to affect the application of any other
law.