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. 




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          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. 




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                  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: 




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                  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  




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               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.  




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               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)




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               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