BILL ANALYSIS SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: AB 1409 SENATOR ALAN LOWENTHAL, CHAIRMAN AUTHOR: J. perez VERSION: AS PROPOSED To be Amended Analysis by: Art Bauer FISCAL: NO Hearing date: July 14, 2009 SUBJECT: County highways: work authorization DESCRIPTION: This bill removes the ability of counties to use either county road commissioner contracting authority or the authority granted under the Uniform Public Construction Cost Accounting Act when determining whether to contract out construction or to perform it with county staff. ANALYSIS: Since 1935, state law has specified the conditions governing how a county road commissioner, or a registered civil engineer under the direction of the county director of transportation, may use county employees, day labor, or contracts with private firms to perform work on county streets and roads. In 1983, the Legislature enacted the Uniform Public Construction Cost Accounting Act (act) to alleviate disputes between public agencies and the construction industry over what projects should be put out to bid and what projects should be completed with county employees. The act achieves this object in two principle ways. First, it establishes a process for developing uniform cost accounting procedures for public construction projects and for recommending the procedures to the Controller for adoption. Second, it establishes the dollar limits, which the State Controller may adjust over time, for what work must be done in-house and what work must be contracted out. AB 1409 (J. PEREZ) Page 2 The use of the act is a discretionary decision of the governing boards of counties, cities, and special districts. The act only applies to public agencies whose governing boards have elected by resolution to become subject to the act's uniform construction cost accounting procedures. For those counties that elect to be subject to the act's uniform construction accounting procedures, they may continue to use the "road commissioner" procurement procedures established in 1935 for highway construction only. This is known as the road commissioner exemption. The Uniform Public Construction Cost Accounting Act of 1983: 1. Defines "public agency" as a city, county, city and county, including chartered cities and chartered counties, any special district, and any other agency of the state for the local performance of governmental or proprietary functions within limited boundaries. Included within the definition is a nonprofit transit corporation that is wholly owned by a public agency and formed to carry out the purposes of the public agency. 2. Defines a "public project" as: a. The construction, reconstruction, erection, alteration, renovation, improvement, demolition, and repair work involving any publicly-owned, leased, or operated facility. b. Painting or repainting of any publicly-owned, leased, or operated facility. c. In the case of a publicly owned utility system, "public project" shall include only the construction, erection, improvement, or repair of dams, reservoirs, powerplants, and electrical transmission lines of 230,000 volts and higher. 3. Excludes from the definition of a "public project" maintenance work and defines "maintenance work" as: a. Routine, recurring, and usual work for the preservation or protection of any publicly-owned or publicly-operated facility for its intended purposes. b. Minor repainting. AB 1409 (J. PEREZ) Page 3 c. Resurfacing of streets and highways at less than one inch. d. Landscape maintenance, including mowing, watering, trimming, pruning, planting, replacement of plants, and servicing of irrigation and sprinkler systems. e. Work performed to keep, operate, and maintain publicly owned water, power, or waste disposal systems, including, but not limited to, dams, reservoirs, powerplants, and electrical transmission lines of 230,000 volts and higher. 4. Authorizes the governing boards of public agencies to adopt a resolution agreeing to be subject to uniform cost accounting procedures established by the act. 5. Establishes the following contracting procedures for public agencies that have adopted a resolution: a. Public projects of $25,000 or less may be performed by agency employees, by force account, by negotiated contract, or by purchase order. b. Public projects of $100,000 or less may be let to contract by informal procedures specified in the act. c. Public projects of greater than $100,000 are let to contract by a formal bidding procedure specified in the act, but requiring the contract to be awarded to the lowest responsible bidder. d. The above limits may be, and have been, adjusted by the Controller to account for inflation. The current limit for use of agency workforce is $30,000, the informal bidding limit is up to $120,000, and the formal bidding procedure must be followed for construction procurement over $120,000. 6. Establishes procedures for performing working during emergencies and allows the work to be performed by day labor, under the direction of the agency, by a contractor, or by both. The 1935 Road Commissioner Authority authorizes a county road commissioner or a county engineer to use an alternative procurement procedure for street and road purposes that the Legislature adopted in 1935. This procedure includes the following contract options: AB 1409 (J. PEREZ) Page 4 a. Awarding a contract covering both work and material, with the contract let to the lowest responsible bidder. b. Purchasing the material and letting a contract for the performance of the work, with the material bought at the lowest possible cost and the contract let to the lowest responsible bidder. c. Purchasing the material and having the work done by day labor, in which case advertising for bids is not required. d. Authorizing the county road commissioner or a registered civil engineer under the direction of the county director of transportation to execute changes up to $5,000 for any contract of $50,000 or less, or ten percent for contracts over $50,000 but not to exceed $250,000. For contracts whose original cost exceeds $250,000, the extra cost for any change or addition to the work so ordered cannot exceed $25,000, plus five percent of the amount of the original contract costs in excess of $250,000. e. Purchasing the material and letting a contract for the work or by letting a contract covering both work and material without advertising for bids when the estimated cost of emergency work necessitated by the imminence or occurrence of a landslide, flood, storm damage, or other emergency exceeds $25,000 and the public interest and necessity demand immediate action to safeguard life, health, or property. This bill deletes the provision of the act that allows a county road commissioner or a county engineer to use the 1935 road commissioner authority as an alternative procurement procedure for street and road purposes (i.e., it deletes the road commissioner exemption). COMMENTS: 1. Purpose . According to the bill's sponsors, the purpose of this bill is to remove the confusion between the general procurement provisions of the act and the road commissioner exemption included in the act. 2. What are the incentives for using the act ? Thirty-two of California's fifty-eight counties have elected to utilize the provisions of the act for procuring construction AB 1409 (J. PEREZ) Page 5 services for all facilities, including roads, because the limits in the act for using their own work forces and for informal bidding are higher than the limits otherwise provided for in the Public Contract Code. Counties that have elected not to participate in the act have done so because they may have county charter provisions that provide greater contracting flexibility or the cost of establishing the uniform system of accounts for construction required by the act is too high. After comparing the counties that are signatory to the act and the non-signatory counties, there does not appear to be a pattern between large and small. For example, Alameda, Los Angeles, and San Diego counties are not signatory counties, but Amador, Mono, and Orange counties are. Once a county has elected to be a signatory, it may reverse its decision and notify the Controller it is no longer participating. 3. Is the act really confusing ? The argument of the proponents is that there is confusion between the provisions of the act and the county road commissioner authority. It is unclear if that is really the case. In discussion with the contracting staff of a suburban county, the road commissioner authority is not used in that county because there are sufficient contractors within the area. Each county makes a calculation as to the advantage the act has for its circumstances. A small, rural county may be a signatory to the act for the flexibility it offers for managing the construction of facilities other than roads. It may chose to use the road commissioner provision because of the availability of sufficient road contactors to constitute a competitive market or for some other localized reason. 4. Can using the Road Commissioner Provision result in abuses ? The issue underlying the desire for deleting the road commissioner authority may be the perception that the authority is being abused by counties that have elected to participate under the terms of the act. For example, the act specifies that projects with a value of $30,000 or less may be performed by county staff, projects with a value of $120,000 or less may be bid informally, and projects with a value greater than $120,000 must be competitively procured and awarded to the lowest responsible bidder. The road commissioner authority, however, does not specify a dollar value limit for distinguishing between informal and formal bids that must be awarded to the lowest responsible bidder. AB 1409 (J. PEREZ) Page 6 Nor does it specify the limit at which counties must stop relying on their own work force and contract for construction services. For example, the road commissioner provision allows counties to purchase material for construction or maintenance and then use their own work force to perform the work without specifying any dollar limits either on the value of the material or the value of the construction work. The road commissioner provision does not distinguish between maintenance work and new construction. The act, however, defines specifically what constitutes new construction and maintenance, and for roads, the act defines resurfacing a road with an inch or less of asphalt as maintenance which can be done with county staff. 5. Arguments in opposition . The counties argue that in rural areas there are an insufficient number of contractors available to perform the construction work, and it is more cost-effective to use the road commissioner authority. The Controller reports on the dollar value of work done by county staff or day labor for counties that are both signatories to the act and non-signatories. An example of the disparity among large counties in the use of the road commissioner provision can be seen in a comparison between Riverside and Los Angeles counties. Riverside County, which is a signatory to the act, has 2,668 miles of county maintained roads and spent $18.6 million on road improvements using its own workforce. On the other hand, Los Angeles County, a non-signatory county, with 2,868 miles of road spent $6.3 million on road improvements using its own workforce. Staff finds that there is insufficient information to draw any firm conclusion on why counties select a specific procurement process or if there is abuse of the procurement process for the construction and maintenance of roads. Assembly Votes: Floor: N/A Appr: N/A Trans: N/A POSITIONS: (Communicated to the Committee before noon on Wednesday, July 8, 2009) AB 1409 (J. PEREZ) Page 7 SUPPORT: California State Council of Laborers (co-sponsor) California-Nevada Conference of Operating Engineers (co-sponsor) Stimpel-Wiebelhaus Associates, Inc. OPPOSED: California State Association of Counties Urban Counties Caucus Regional Council of Rural Counties