BILL NUMBER: SB 793 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Pavley
FEBRUARY 18, 2011
An act to add and repeal Chapter 3.6 (commencing with Section
81710) of Part 49 of Division 7 of Title 3 of the Education Code,
relating to public works.
LEGISLATIVE COUNSEL'S DIGEST
SB 793, as introduced, Pavley. Los Angeles Community College
District: design-assist contract pilot program.
Existing law authorizes a community college district governing
board to enter into a design-build contract, as defined, until
January 1, 2014, 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
$2,500,000.
This bill would establish a design-assist contract pilot program
that would authorize the Los Angeles Community College District
governing board to enter into a design-assist contract, as defined,
for a project with an estimated cost exceeding $2,500,000. The bill
would prohibit expenditure of state funds appropriated for a
design-assist capital outlay project until the Department of Finance
and State Public Works Board have approved performance criteria and
concept drawings. The bill would impose various requirements on the
governing board related to the design-assist construction process and
would prohibit the governing board from entering into more than 8
design-assist contracts under these provisions before January 1,
2017. If the governing board elects to award a design-assist contract
for a construction project, the bill would require the governing
board to submit a report to the Legislative Analyst's Office in
compliance with a specific provision of existing law.
The bill would require design-assist entities to verify certain
information under oath, thereby imposing a state-mandated local
program by expanding the scope of an existing crime.
The provisions of the bill would not apply to apply to contracts
in effect before the operative date of the bill, and would be
repealed on January 1, 2018.
The bill would make legislative findings and declarations as to
the necessity of a special statute.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 3.6 (commencing with Section 81710) is added to
Part 49 of Division 7 of Title 3 of the Education Code, to read:
CHAPTER 3.6. DESIGN-ASSIST ALTERNATIVE PILOT PROGRAM
81710. (a) It is the intent of the Legislature to provide, as a
pilot program in the Los Angeles Community College District, an
optional, alternative procedure for bidding and building community
college construction projects, known as design-assist.
(b) It is the intent of the Legislature that the design-assist
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 law, except
as set forth in this chapter.
(c) It is the intent of the Legislature to authorize the Los
Angeles Community College District to use the procedures of this
chapter, and to receive from the district a report detailing the
effectiveness of these procedures.
81711. As used in this chapter, the following terms have the
following meanings:
(a) "Acceptable safety record" has the same meaning as stated in
subparagraph (G) of paragraph (2) of subdivision (c) of Section
81703.
(b) "Best value" has the same meaning as stated in Section 81701.
(c) "Community college district" means the Los Angeles Community
College District.
(d) "Design-assist" means a procurement process in which the
community college district engages a contractor to assist it and its
design professionals in developing the design for, and then
constructing, the project.
(e) "Design-assist entity" means an individual, a corporation,
limited partnership, partnership, or other association that is
licensed to act as contractor.
(f) "Governing board" means the governing board of the Los Angeles
Community College District.
(g) "Skilled labor force availability" has the same meaning as
stated in subparagraph (F) of paragraph (2) of subdivision (c) of
Section 81703.
81712. (a) Before entering into any design-assist contract, the
governing board shall review the guidelines developed pursuant to
this chapter and approve of the use of design-assist pursuant to this
chapter.
(b) Upon a determination by the governing board that it is in the
best interest of the community college district, the governing board
may enter into a design-assist contract for any project with an
estimated cost greater than two million five hundred thousand dollars
($2,500,000) if, after evaluation of the traditional
design-bid-build process in a public meeting, the governing board
makes written findings that use of the design-assist process on the
specific project under consideration will accomplish one of the
following objectives: reduce comparable project costs, facilitate
control over design elements, optimize use of construction means,
methods, and technologies, or provide features not achievable through
the traditional design-bid-build method.
(c) No state funds appropriated for a design-assist capital outlay
project may be expended until the Department of Finance and the
State Public Works Board have approved performance criteria and
concept drawings for the project to be financed from the
appropriation for capital outlay.
81713. Design-assist projects shall progress as follows:
(a) The community college district shall select a design
professional duly licensed or registered in this state to perform the
services required by the Field Act, as defined in Section 17281, for
the project.
(b) The community college district shall prepare a request for
proposal, or a two-step request for prequalification and proposals,
that includes, without limitation, the following:
(1) Based on financial statements and experience in the
construction of public schools or colleges, a process of
prequalification in accordance with subdivisions (a) and (b) of
Section 20651.5 of the Public Contract Code pursuant to which each
proposer is prequalified by the community college district.
(2) All of the information described in subparagraphs (A) to (C),
inclusive, of paragraph (2) of subdivision (a) of Section 81703.
(3) The form of contract for design-assist services and
construction that the successful proposer will be required to
execute, which may be either a lump sum contract or a cost plus fee
with guaranteed maximum price contract covering all work, including
all work of subcontractors, whether awarded by the design-assist
entity or by the community college district, and which shall provide
that no portion of the work other than general administration,
supervision, safety administration, and general cleanup will be
self-performed by a design-assist entity or by any entity that is
directly or indirectly substantially owned, controlled, or managed by
the design-assist entity.
(4) A statement whether the work that is to be performed by
subcontractors will be awarded by the design-assist entity or the
community college district or a combination thereof.
(5) At the option of the community college district, whether or
not the work to be performed by subcontractors will be awarded by the
design-assist entity or the community college district or a
combination thereof.
(6) A process for prequalification of some or all of the
subcontractors for bidding of the work.
(7) A procedure for final selection of the design-assist entity
based upon any of the following:
(A) The lowest price based on any or all of the following:
(i) A lump sum price for design-assist preconstruction services.
(ii) A lump sum or percentage contractor fee for indirect
overhead and profit to construct.
(iii) A fixed daily rate, percentage or guaranteed maximum price
for direct overhead (general conditions costs) to construct.
(B) A best value approach based on price and nonprice criteria and
source selection procedures specifically identified in the request
for proposal in which those factors listed in subparagraph (C) of
paragraph (2) of subdivision (c) of Section 81703 are assigned
percentages of the total weight that conform to the percentages in
that section and which provides that all responsive proposers, upon
completion of evaluation, be ranked from the most advantageous to the
least advantageous to the community college district.
(c) The governing board shall issue a written decision supporting,
and publicly announce, its contract award in the same manner as
provided in subparagraphs (D) and (E) of paragraph (2) of subdivision
(c) of Section 81703.
81714. (a) Any design-assist entity to which a contract is
awarded under this chapter shall provide a payment bond pursuant to
Sections 3247 and 3248 of the Civil Code for the full price of the
design-assist contract and all subcontracts, whether entered into by
the design-assist contractor or community college district.
(b) Subject to the right of the community college district to
limit bidding to subcontractors who have been prequalified pursuant
to paragraph (6) of subdivision (b) of Section 81713, all
subcontracts shall be awarded in accordance with the process set
forth in paragraphs (2) and (3) of subdivision (c) of Section 81704.
(c) Without limitation to the community college district's right
to withhold payment of amounts in dispute, retention by the district
of funds shall conform to the requirements of subparagraphs (A) and
(B) of paragraph (4) of subdivision (c) of Section 81704 and the
design-assist entity may be permitted substitute securities in
accordance with Section 22300 of the Public Contract Code.
(d) The community college district shall comply with the
requirements of paragraphs (1) to (3), inclusive, of subdivision (d)
of Section 81704.
81715. The community college district, by June 30, 2012, shall
develop guidelines for design-assist projects.
81716. The governing board, for each design-assist contract
awarded for a project pursuant to this chapter and the construction
of which is commenced by the design-assist entity receiving the
award, shall submit to the Legislative Analyst's Office a report on
the project at the completion of the project that complies with all
of the requirements of Section 81707.
81717. The community college district shall not commence any
additional design-assist project if 60 days have elapsed after
completion of a design-assist project without having filed the report
to the Legislative Analyst's Office required pursuant to Section
81707.
81718. This chapter does not exempt design-assist contracts from
otherwise applicable provisions of the Public Contract Code unless
the exemption is granted expressly, or by necessary implication.
Unless expressly set forth in this act, nothing in this act is
intended to affect, expand, alter, or limit rights or remedies
otherwise available at law.
81719. Unless expressly authorized in this chapter, no otherwise
applicable provision of the Field Act (Article 3 (commencing with
Section 17280) and Article 6 (commencing with Section 17365) of
Chapter 3 of Part 10.5 and Article 3 (commencing with Section 81050)
and Article 7 (commencing with Section 81130) of Chapter 1 of Part
49) may be waived, amended, or ignored by the community college
district or the design-assist entity.
81720. (a) The community college district may enter into no more
than eight design-assist contracts prior to January 1, 2017.
(b) This chapter does not apply to contracts in effect prior to
the operative date of the act that added this section.
81725. This chapter shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before December 31, 2017, deletes or extends
that date.
SEC. 2. The Legislature finds and declares that a special law is
necessary and that a general law cannot be made applicable within the
meaning of Section 16 of Article IV of the California Constitution
because this act will serve as a pilot program for providing the Los
Angeles Community College District with the authority to enter into
design-assist contracts for the design and construction and there is
a need to enact this pilot project on a trial basis only, and to
study the implementation of this act in only one community college
district, prior to extending the act to every community college
district.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.