BILL NUMBER: AB 2440 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 12, 2012
INTRODUCED BY Assembly Member Bonnie Lowenthal
FEBRUARY 24, 2012
An act to amend Sections 130051.11, 130232, and
130242 of, and to repeal Sections 130051.21 and 130243 of, the
Public Utilities Code, relating to transportation.
LEGISLATIVE COUNSEL'S DIGEST
AB 2440, as amended, Bonnie Lowenthal. Los Angeles County
Metropolitan Transportation Authority: contracting.
(1) Existing law creates the Los Angeles County Metropolitan
Transportation Authority, with specified powers and duties. Existing
law requires a contract by the authority for a purchase of supplies,
equipment, or materials with the purchase price exceeding $100,000 to
be let to the lowest responsible bidder, or best value proposer.
Existing law requires a contract by the authority for construction of
facilities to be let to the lowest responsible bidder if the
purchase price exceeds $25,000.
This bill would increase these amounts to $150,000.
(2) Existing law requires the authority to obtain a minimum of 3
quotations when the expected expenditure exceeds $3,000 but not
$100,000.
This bill would increase the upper limit of $100,000 to $150,000.
(3) Existing law provides for the inspector general of the
authority to prepare a prequalification questionnaire to be completed
by certain potential contractors. Existing law requires the
authority to adopt a change order procedure meeting certain
requirements.
This bill would repeal these provisions.
(4) Existing law authorizes the authority to enter into contracts
with private entities that combine into a single contract all or some
of the planning, design, permitting, development, joint development,
construction, construction management, acquisition, leasing,
installation, and warranty of some or all components of transit
systems and certain facilities. Existing law requires a contract
under these provisions to be let to the lowest responsible bidder,
with a notice requesting bids required to be published in a newspaper
of general circulation at least 60 days before receipt of bids.
This bill would allow the authority to select a contractor under
these provisions using selection criteria in addition to cost. This
bill would retain the 60-day publication requirement for contracts
estimated to exceed $10,000,000, but would otherwise impose a
10-day 30-day requirement. This bill,
in the case of the design of projects permitting the selection of
subcontractors, would require the contractor to competitively bid
those portions and provide the authority with a list of
subcontractors, as specified. Once on the list, the bill would
provide that the subcontractors shall have the rights provided under
a certain part of the Public Contract Code.
(5) Existing law provides that the authority consists of 14
members and requires the authority to reserve to itself exclusively
certain powers and duties. Existing law allows the authority to
delegate other powers and duties to an organizational unit or to its
chief executive officer.
This bill would add preparation of supporting documents and
findings, and approval of contracts relative to the contracts
described in (4) above to the list of the powers and duties that the
authority may delegate to an organizational unit or to the chief
executive officer.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 130051.11 of the Public
Utilities Code is amended to read:
130051.11. (a) The Los Angeles County Metropolitan Transportation
Authority may determine its organizational structure, which may
include, but is not limited to, the establishment of departments,
divisions, subsidiary units, or similar entities. Any department,
division, subsidiary unit, or similar entity established by the
authority shall be referred to in this chapter as an "organizational
unit." The authority shall, at a minimum, establish the following
organizational units:
(1) A transit construction organizational unit to assume the
construction responsibilities for all exclusive public mass transit
guideway construction projects in Los Angeles County.
(2) An operating organizational unit with the following
responsibilities:
(A) The operating responsibilities of the former Southern
California Rapid Transit District on all exclusive public mass
transit guideway projects in the County of Los Angeles.
(B) The operation of bus routes operated by the former Southern
California Rapid Transit District, and all the duties, obligations,
and liabilities of the district relating to those bus routes.
(3) A transportation planning and programming organizational unit
with all planning responsibilities previously performed by the former
Southern California Rapid Transit District and the former Los
Angeles County Transportation Commission.
(b) Nothing in this section shall be construed to require specific
bus routes to be operated. The authority or the operating
organizational unit may make any adjustment with respect to bus
routes, bus services, or both, which is within the power of the
former Los Angeles County Transportation Commission, or the former
Southern California Rapid Transit District.
(c) Any obligations of the former Southern California Rapid
Transit District arising out of a collective bargaining agreement
entered into by the district shall be the exclusive obligations of
the Los Angeles County Metropolitan Transportation Authority. It is
the intent of the Legislature that the rights or obligations under
any collective bargaining agreement in existence on January 1, 1993,
not be enlarged or diminished by this section or any other provision
of the act which added this section.
(d) No collective bargaining agreement entered into by the former
Southern California Rapid Transit District on or after January 1,
1993, shall be effective unless approved by the Los Angeles County
Metropolitan Transportation Authority. The authority's approval of an
agreement shall cause the agreement to be binding upon the
authority.
(e) On and after April 1, 1993, any reference to the former
Southern California Rapid Transit District in Article 10 (commencing
with Section 30750) of Chapter 5 of Part 3 of Division 10 is deemed
to refer to the Los Angeles County Metropolitan Transportation
Authority.
(f) The Los Angeles County Metropolitan Transportation Authority
may administratively delegate to an organizational unit or to its
chief executive officer any powers and duties it deems appropriate.
Powers and duties which may be delegated to an organizational unit
include, but are not limited to, the following:
(1) The power of eminent domain.
(2) Approval of contracts, except the final approval of labor
contracts.
(3) Hearing and resolving bid protests.
(4) Preparation of supporting documents and findings, and approval
of contracts, under Sections 130233, 130234, 130236, 130237, and
130242 within guidelines adopted by the board of directors.
(g) The Los Angeles County Metropolitan Transportation Authority
shall establish a citizens' advisory council pursuant to subdivision
(d) of Section 130105.
SEC. 2. SECTION 1. Section 130051.21
of the Public Utilities Code, as added by Section 4.3 of Chapter 10
of the Statutes of 1996, is repealed.
SEC. 3. SEC. 2. Section 130232 of
the Public Utilities Code is amended to read:
130232. (a) Except as provided in subdivision (f), purchase of
all supplies, equipment, and materials, and the construction of all
facilities and works, when the expenditure required exceeds
twenty-five thousand dollars ($25,000), shall be by contract let to
the lowest responsible bidder. Notice requesting bids shall be
published at least once in a newspaper of general circulation. The
publication shall be made at least 10 days before the date for the
receipt of the bids. The commission, at its discretion, may reject
any and all bids and readvertise.
(b) Except as provided for in subdivision (f), whenever the
expected expenditure required exceeds one thousand dollars ($1,000),
but not twenty-five thousand dollars ($25,000), the commission shall
obtain a minimum of three quotations, either written or oral, that
permit prices and terms to be compared.
(c) Where the expenditure required by the bid price is less than
fifty thousand dollars ($50,000), the executive director may act for
the commission.
(d) All bids for construction work submitted pursuant to this
section shall be presented under sealed cover and shall be
accompanied by one of the following forms of bidder's security:
(1) Cash.
(2) A cashier's check made payable to the commission.
(3) A certified check made payable to the commission.
(4) A bidder's bond executed by an admitted surety insurer, made
payable to the commission.
(e) Upon an award to the lowest bidder, the security of an
unsuccessful bidder shall be returned in a reasonable period of time,
but in no event shall that security be held by the commission beyond
60 days from the date that the award was made.
(f) The following provisions apply only to the Los Angeles County
Metropolitan Transportation Authority:
(1) The contract shall be let to the lowest responsible bidder or,
in the authority's discretion, to the person who submitted a
proposal that provides the best value to the commission on the basis
of the factors identified in the solicitation when the purchase price
of all supplies, equipment, and materials exceeds one hundred fifty
thousand dollars ($150,000). "Best value" means the overall
combination of quality, price, and other elements of a proposal that,
when considered together, provide the greatest overall benefit in
response to requirements described in the solicitation documents. The
contract shall be let to the lowest responsible bidder when the
purchase price of the construction of all facilities exceeds one
hundred fifty thousand dollars ($150,000).
(2) The authority shall obtain a minimum of three quotations,
either written or oral, that permit prices and terms to be compared
whenever the expected expenditure required exceeds three thousand
dollars ($3,000), but not one hundred fifty thousand dollars
($150,000).
(3) The authority may purchase supplies, equipment, and materials
from a public auction sale, including public auctions held via the
Internet, using the procedures established for all other participants
in the public auction.
(4) The authority may participate in a procurement agreement
involving other public entities that is identified by a procuring
public entity or entities as a cooperative procuring agreement from
which other public entities may make purchases or enter into
contracts, and the authority may procure, and enter into contracts
for, items purchased pursuant to that procurement agreement,
notwithstanding that the authority may not be the procuring public
entity, provided the procurement agreement is awarded or entered into
by either of the following:
(A) One or more public entities or an organization of public
entities, which may include the authority.
(B) A federal, state, or local public entity.
(5) (A) Notwithstanding any other provision of law requiring the
authority to award contracts to the lowest responsible bidder, on
contracts above one hundred thousand dollars ($100,000), the
authority may, except as to contracts for professional services
involving private architectural, landscape architectural,
engineering, environmental, land surveying, or construction
management as defined in Sections 4525 and 4529.10 of the Government
Code, do any of the following in facilitating contract awards to
small businesses:
(i) Provide for a small business preference in construction, the
construction component of a design-build team, the procurement of
goods, or the delivery of services. The preference to a small
business shall be 5 percent of the lowest responsible bidder meeting
specifications that provide for small business participation.
(ii) Establish a subcontracting participation goal for small
businesses on contracts financed with nonfederal funds and grant a
preference of 5 percent to the lowest responsible bidders who meet
the goal.
(iii) Require bidders to make a good faith effort, in accordance
with the criteria established pursuant to subparagraph (B), prior to
the time bids are opened, to comply with the goals and requirements
established by the authority relating to participation in the
contract by small businesses.
(B) The following shall apply to bidders under this paragraph:
(i) The bidder attended any presolicitation or prebid meetings
that were scheduled by the authority to inform all bidders of the
small business enterprise program requirements for the project for
which the contract will be awarded. The authority may waive this
requirement if it determines that the bidder is informed as to those
program requirements.
(ii) The bidder identified and selected specific items of the
project for which the contract will be awarded to be performed by
small business enterprises to provide an opportunity for
participation by those enterprises.
(iii) The bidder advertised, not less than 10 calendar days before
the date the bids are opened, in one or more daily or weekly
newspapers, trade association publications or trade-oriented
publications, trade journals, or other media, specified by the
authority for small business enterprises that are interested in
participating in the project. This clause applies only if the
authority gave public notice of the project not less than 15 calendar
days prior to the date the bids are opened.
(iv) The bidder provided written notice of his or her interest in
bidding on the contract to the number of small business enterprises
required to be notified by the project specifications not less than
10 calendar days prior to the opening of bids. The authority shall
make available to the bidder not less than 15 calendar days prior to
the date the bids are opened a list or a source of lists of
enterprises which are certified by the authority as small business
enterprises.
(v) The bidder followed up initial solicitations of interest by
contacting the enterprises to determine with certainty whether the
enterprises were interested in performing specific items of the
project.
(vi) The bidder provided interested small business enterprises
with information about the plans, specifications, and requirements
for the selected subcontracting or material supply work.
(vii) The bidder requested assistance from small business
community organizations; small business contractor groups; local,
state, or small business assistance offices; or other organizations
that provide assistance in the recruitment and placement of small
business enterprises, if any are available.
(viii) The bidder negotiated in good faith with the small business
enterprises, and did not unjustifiably reject as unsatisfactory bids
prepared by any small business enterprises, as determined by the
authority.
(ix) Where applicable, the bidder advised and made efforts to
assist interested small business enterprises in obtaining bonds,
lines of credit, or insurance required by the authority or
contractor.
(x) The bidder's efforts to obtain small business enterprise
participation could reasonably be expected by the authority to
produce a level of participation sufficient to meet the goals and
requirements of the authority.
(C) "Small business enterprise" as used in this paragraph, means a
business enterprise that is classified as a small business under
United States Small Business Administration rules and meets the
current small business enterprise size standards found in 13 CFR Part
121 appropriate to the type of work the enterprise seeks to perform.
The authority may establish limitations regarding the average annual
gross receipts of a small business over the previous three fiscal
years and establish limitations regarding the personal net worth of
the owner of the small business, exclusive of the value of the owner'
s personal residence.
SEC. 4. SEC. 3. Section 130242 of the
Public Utilities Code is amended to read:
130242. (a) In addition to the other powers it possesses,
and notwithstanding any other provision of law,
the Los Angeles County Metropolitan Transportation Authority may
enter into contracts with private entities, the scope of which may
combine within a single contract all or some of the planning, design,
permitting, development, joint development, construction,
construction management, acquisition, leasing, installation, and
warranty of all or components of (1) transit systems, including,
without limitation, passenger loading or intermodal station
facilities, and (2) facilities on real property owned or to be owned
by the authority.
(b) The authority may award contracts pursuant to subdivision (a)
after a finding, by a two-thirds vote of the members of the
authority, that awarding the contract under this section will achieve
for the authority, among other things, certain private sector
efficiencies in the integration of design, project work, and
components.
(c) A contract awarded pursuant to this section may include
operation and maintenance elements, if the inclusion of those
elements (1) is necessary, in the reasonable judgment of the
authority, to assess vendor representations and warranties,
performance guarantees, or life cycle efficiencies, and (2) does not
conflict with collective bargaining agreements to which the authority
is a party.
(d) Any construction, alteration, demolition, repairs or other
works of improvement performed under a contract awarded pursuant to
this section shall be considered a public works project subject to
Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of
the Labor Code, and shall be enforced by the Department of Industrial
Relations in the same way it carries out this responsibility under
the Labor Code.
(e) A contract under this section shall be let to the lowest
responsible bidder whose bid is responsive to the criteria set forth
in the invitation for bids, or, at the authority's discretion, to a
contractor chosen by a competitive bidding process that employs
selection criteria in addition to cost. Notice requesting bids or
proposals shall be published at least once in a newspaper of general
circulation. For contracts estimated to exceed ten million dollars
($10,000,000), publication shall be made at least 60 days before the
receipt of the bids or price proposals. For contracts estimated not
to exceed ten million dollars ($10,000,000), publication shall be
made at least 10 30 days before the
receipt of the bids or price proposals. The authority, at its
discretion, may reject any and all bids and proposals, and may
readvertise. All bids and price proposals submitted pursuant to this
section shall be presented under sealed cover and shall be
accompanied by one of the following forms of bidder security: (1)
cash, (2) a cashier's check made payable to the authority, (3) a
certified check made payable to the authority, or (4) a bidder's bond
executed by an admitted surety insurer, made payable to the
authority. Upon an award, the security of each unsuccessful bidder
shall be returned in a reasonable period of time, but in no event
shall that security be held by the authority beyond 60 days from the
time the award is made.
(f) When the design of portions of the project permits the
selection of subcontractors, the contractor shall competitively bid
those portions. The contractor shall provide to the authority a list
of subcontractors whose work is in excess of one-half of 1 percent of
the total project cost as soon as the subcontractors are identified.
Once listed, the subcontractors shall have the rights provided in
the Subletting and Subcontracting Fair Practices Act (Chapter 4
(commencing with Section 4100) of Part 1 of Division 2 of the Public
Contract Code).
SEC. 5. SEC. 4. Section 130243 of
the Public Utilities Code is repealed.