BILL NUMBER: SB 1509 CHAPTERED
BILL TEXT
CHAPTER 736
FILED WITH SECRETARY OF STATE SEPTEMBER 28, 2012
APPROVED BY GOVERNOR SEPTEMBER 28, 2012
PASSED THE SENATE AUGUST 23, 2012
PASSED THE ASSEMBLY AUGUST 22, 2012
AMENDED IN ASSEMBLY AUGUST 20, 2012
AMENDED IN ASSEMBLY JULY 5, 2012
AMENDED IN SENATE APRIL 18, 2012
INTRODUCED BY Senator Simitian
(Coauthor: Senator Alquist)
FEBRUARY 24, 2012
An act to amend Sections 17250.10, 17250.25, 81700, and 81703 of
the Education Code, to amend Section 4 of Chapter 421 of the Statutes
of 2001, and to amend Section 4 of Chapter 637 of the Statutes of
2002, relating to school facilities.
LEGISLATIVE COUNSEL'S DIGEST
SB 1509, Simitian. School facilities: design-build contracts.
(1) Existing law authorizes, until January 1, 2014, a school
district governing board or community college district governing
board to enter into a design-build contract for both the design and
construction of a school facility or community college facility,
respectively, if specified requirements are met.
This bill would extend this design-build authority until January
1, 2020.
(2) Existing law states the intent of the Legislature that
design-build procurement by a school district or community college
district not be construed to extend, limit, or change in any manner
the legal responsibility of public agencies and contractors to comply
with existing law.
This bill would also state the intent of the Legislature that
design-build procurement does not replace or eliminate competitive
bidding.
(3) Existing law requires design-build projects by a school
district or community college district to progress in a specified
manner, including, among other things, requiring the school district
governing board or community college district governing board to
prepare a request for proposal setting forth the scope of the project
and authorizing the request for proposal to include, but not be
limited to, specified information.
This bill would require the request for proposal not to include a
design-build-operate contract for educational facilities.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 17250.10 of the Education Code is amended to
read:
17250.10. (a) It is the intent of the Legislature to enable
school districts to use safe and cost-effective options for building
and modernizing school 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, and state office
buildings.
(b) The Legislature also finds and declares that school districts
using 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 accelerated completion of the projects, cost
containment, reduction of construction complexity, and reduced
exposure to risk for the school district. The Legislature also finds
that the cost-effective benefits to the school 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 school 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 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 the act adding 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.
(f) In addition, it is the intent of the Legislature that
design-build procurement does not replace or eliminate competitive
bidding.
SEC. 2. Section 17250.25 of the Education Code is amended to read:
17250.25. Design-build projects shall progress as follows:
(a) (1) The school district governing board shall prepare a
request for proposal setting forth the scope of the project that may
include, but is not limited to, the size, type, and desired design
character of the buildings and site, performance specifications
covering the quality of materials, equipment, and workmanship,
preliminary plans or building layouts, or any other information
deemed necessary to describe adequately the school district's needs.
The performance specifications and any plans shall be prepared by a
design professional duly licensed or registered in this state. The
request for proposal shall not include a design-build-operate
contract for educational facilities pursuant to this chapter.
(2) Each request for proposal shall do all of the following:
(A) Identify the basic scope and needs of the project or contract,
the expected cost range, and other information deemed necessary by
the school district to inform interested parties of the contracting
opportunity.
(B) Invite interested parties to submit competitive sealed
proposals in the manner prescribed by the school district.
(C) Include a section identifying and describing the following:
(i) All significant factors and subfactors that the school
district reasonably expects to consider in evaluating proposals,
including cost or price and all nonprice related factors and
subfactors.
(ii) The methodology and rating or weighting scheme that will be
used by the school district governing board in evaluating competitive
proposals and specifically whether proposals will be rated according
to numeric or qualitative values.
(iii) The relative importance or weight assigned to each of the
factors identified in the request for proposal.
(iv) As an alternative to clause (iii), the governing board of a
school district shall specifically disclose whether all evaluation
factors other than cost or price, when combined, are any of the
following:
(I) Significantly more important than cost or price.
(II) Approximately equal in importance to cost or price.
(III) Significantly less important than cost or price.
(v) If the school district governing board wishes to reserve the
right to hold discussions or negotiations with responsive bidders, it
shall so specify in the request for proposal and shall publish
separately or incorporate into the request for proposal applicable
rules and procedures to be observed by the school district to ensure
that any discussions or negotiations are conducted in a fair and
impartial manner.
(3) Notwithstanding Section 4-315 of Title 24 of the California
Code of Regulations, an architect or structural engineer who is party
to a design-build entity may perform the services set forth in
Section 17302.
(b) (1) The school district shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the Director of the Department of Industrial Relations.
In preparing the questionnaire, the director shall consult with the
construction industry, including representatives of the building
trades, surety industry, school districts, and other affected
parties. This questionnaire shall require information including, but
not limited to, all of the following:
(A) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members who will participate as
subcontractors in the design-build contract, including, but not
limited to, electrical and mechanical subcontractors.
(B) Evidence that the members of the design-build entity have
completed, or demonstrated, the experience, competency, capability,
and capacity to complete projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage and complete the design
and construction of the project.
(C) The licenses, registration, and credentials required to design
and construct the project, including information on the revocation
or suspension of any license, credential, or registration.
(D) Evidence that establishes that the design-build entity has the
capacity to obtain all required payment and performance bonding,
liability insurance, and errors and omissions insurance, as well as a
financial statement that ensures the school district that the
design-build entity has the capacity to complete the project.
(E) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973 (Part 1 (commencing with
Section 6300) of Division 5 of the Labor Code) or the Federal
Occupational Safety and Health Act of 1970 (P.L. 91-596), settled
against any member of the design-build entity, and information
concerning a contractor member's workers' compensation experience
history and worker safety program.
(F) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project.
(G) Any instance where an entity, its owners, officers, or
managing employees, submitted a bid on a public works project and
were found by an awarding body not to be a responsible bidder.
(H) Any instance where the entity, its owners, officers, or
managing employees defaulted on a construction contract.
(I) Any prior violations of the Contractors' State License Law
(Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code), excluding alleged violations of
federal or state law including the payment of wages, benefits,
apprenticeship requirements, or personal income tax withholding, or
of Federal Insurance Contribution Act (FICA) withholding
requirements, settled against any member of the design-build entity.
(J) Information concerning the bankruptcy or receivership of a
member of the entity, including information concerning any work
completed by a surety.
(K) Information concerning all settled adverse claims, disputes,
or lawsuits between the owner of a public works project and a member
of the design-build entity during the five-year period preceding
submission of the bid pursuant to this section, in which the claim,
settlement, or judgment exceeds fifty thousand dollars ($50,000).
Information shall also be provided concerning any work completed by a
surety during this period.
(L) In the case of a partnership or other association that is not
a legal entity, a copy of the agreement creating the partnership or
association.
(2) The information required pursuant to this subdivision shall be
verified under oath by the design-build entity and its members in
the manner in which civil pleadings in civil actions are verified.
Information that is not a public record pursuant to the California
Public Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code) shall not be open to
public inspection.
(c) The school district shall establish a procedure for final
selection of the design-build entity. Selection shall be based on
either of the following criteria:
(1) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Award shall be made on the
basis of the lowest responsible bid.
(2) Notwithstanding any other provision of this code or of Section
20110 of the Public Contract Code, a school district may use a
design-build competition based upon performance and other criteria
set forth by the governing board of the school district in the
solicitation of proposals. Criteria used in this evaluation of
proposals may include, but need not be limited to, the proposed
design approach, life cycle costs, project features, and project
functions. However, competitive proposals shall be evaluated by using
the criteria and source selection procedures specifically identified
in the request for proposal. Once the evaluation is complete, all
responsive bidders shall be ranked from the most advantageous to
least advantageous to the school district.
(A) An architectural or engineering firm or individual retained by
the governing board of the school district to assist in the
development criteria or preparation of the request for proposal shall
not be eligible to participate in the competition with the
design-build entity.
(B) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing by the school
district, to be the best value to the school district.
(C) Proposals shall be evaluated and scored solely on the basis of
the factors and source selection procedures identified in the
request for proposal. However, the following minimum factors shall
collectively represent at least 50 percent of the total weight or
consideration given to all criteria factors: price, technical
expertise, life cycle costs over 15 years or more, skilled labor
force availability, and acceptable safety record.
(D) The school district governing board shall issue a written
decision supporting its contract award and stating in detail the
basis of the award. The decision and the contract file must be
sufficient to satisfy an external audit.
(E) Notwithstanding any provision of the Public Contract Code,
upon issuance of a contract award, the school district governing
board shall publicly announce its awards identifying the contractor
to whom the award is made, the winning contractor's price proposal
and its overall combined rating on the request for proposal
evaluation factors. The notice of award shall also include the agency'
s ranking in relation to all other responsive bidders and their
respective price proposals and a summary of the school district's
rationale for the contract award.
(F) For the purposes of this chapter, "skilled labor force
availability" means that an agreement exists with a registered
apprenticeship program, approved by the California Apprenticeship
Council, which has graduated apprentices in the preceding five years.
This graduation requirement shall not apply to programs providing
apprenticeship training for any craft that has not been deemed by the
Department of Labor and the Department of Industrial Relations to be
an apprenticable craft in the two years before enactment of this
act.
(G) For purposes of this chapter, a bidder's "safety record" shall
be deemed "acceptable" if its experience modification rate for the
most recent three-year period is an average of 1.00 or less, and its
average total recordable injury or illness rate and average lost work
rate for the most recent three-year period does not exceed the
applicable statistical standards for its business category, or if the
bidder is a party to an alternative dispute resolution system as
provided for in Section 3201.5 of the Labor Code.
SEC. 3. 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 use 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 using 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 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.
(f) In addition, it is the intent of the Legislature that
design-build procurement does not replace or eliminate competitive
bidding.
SEC. 4. Section 81703 of the Education Code is amended to read:
81703. Design-build projects shall progress as follows:
(a) (1) The community college district governing board shall
prepare a request for proposal setting forth the scope of the project
that may include, but is not limited to, the size, type, and desired
design character of the buildings and site, performance
specifications covering the quality of materials, equipment, and
workmanship, preliminary plans or building layouts, or any other
information deemed necessary to describe adequately the community
college district's needs. The performance specifications and any
plans shall be prepared by a design professional duly licensed or
registered in this state to perform the services required by the
Field Act, as defined in Section 17281. The request for proposal
shall not include a design-build-operate contract for educational
facilities pursuant to this chapter.
(2) Each request for proposal shall do all of the following:
(A) Identify the basic scope and needs of the project or contract,
the expected cost range, and other information deemed necessary by
the community college district to inform interested parties of the
contracting opportunity.
(B) Invite interested parties to submit competitive sealed
proposals in the manner prescribed by the community college district.
(C) Include a section identifying and describing the following:
(i) All significant factors and subfactors that the community
college district reasonably expects to consider in evaluating
proposals, including cost or price and all nonprice related factors
and subfactors.
(ii) The methodology and rating or weighting scheme that will be
used by the community college district governing board in evaluating
competitive proposals and specifically whether proposals will be
rated according to numeric or qualitative values.
(iii) The relative importance or weight assigned to each of the
factors identified in the request for proposal.
(iv) As an alternative to clause (iii), the governing board of a
community college district shall specifically disclose whether all
evaluation factors other than cost or price, when combined, are any
of the following:
(I) Significantly more important than cost or price.
(II) Approximately equal in importance to cost or price.
(III) Significantly less important than cost or price.
(v) If the community college district governing board wishes to
reserve the right to hold discussions or negotiations with responsive
bidders, it shall so specify in the request for proposal and shall
publish separately or incorporate into the request for proposal
applicable rules and procedures to be observed by the community
college district to ensure that any discussions or negotiations are
conducted in a fair and impartial manner.
(3) Notwithstanding Section 4-315 of Title 24 of the California
Code of Regulations, an architect or structural engineer who is party
to a design-build entity may perform the services set forth in
Section 81138.
(b) The community college district shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the Director of the Department of Industrial Relations
pursuant to subdivision (b) of Section 17250.25.
(c) The community college district shall establish a procedure for
final selection of the design-build entity. Selection shall be based
on either of the following criteria:
(1) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Award shall be made on the
basis of the lowest responsible bid.
(2) Notwithstanding any other provision of this code or of Section
20650 of the Public Contract Code, a community college district may
use a design-build competition based upon performance and other
criteria set forth by the governing board of the community college
district in the solicitation of proposals. Criteria used in this
evaluation of proposals may include, but need not be limited to, the
proposed design approach, life cycle costs, project features, and
project functions. However, competitive proposals shall be evaluated
by using the criteria and source selection procedures specifically
identified in the request for proposal. Once the evaluation is
complete, all responsive bidders shall be ranked from the most
advantageous to least advantageous to the community college district.
A community college district that limits the number of responsible
bidders participating in the design-build competition, at any time
after a request for a proposal has been issued, shall use the source
selection procedures and minimum factors set forth in subparagraph
(C).
(A) An architectural firm, engineering firm, construction manager,
contractor, subcontractor, consultant, or individual retained by the
governing board of the community college district directly or
indirectly before the award of the project to assist in the planning
of the project, including, but not necessarily limited to, the
development criteria or preparation of the request for proposal,
shall not be eligible to participate in the competition with the
design-build entity or to perform work on the project as a
subcontractor.
(B) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing by the community
college district, to be the best value to the community college
district.
(C) Proposals shall be evaluated and scored solely on the basis of
the factors and source selection procedures identified in the
request for proposal. However, the following minimum factors shall
each represent at least 10 percent of the total weight or
consideration given to all criteria factors: price, technical
expertise, life cycle costs over 15 years or more, skilled labor
force availability, and acceptable safety record.
(D) The community college district governing board shall issue a
written decision supporting its contract award and stating in detail
the basis of the award. The decision and the contract file must be
sufficient to satisfy an external audit.
(E) Notwithstanding any provision of the Public Contract Code,
upon issuance of a contract award, the community college district
governing board shall publicly announce its awards identifying the
contractor to whom the award is made, the winning contractor's price
proposal and its overall combined rating on the request for proposal
evaluation factors. The notice of award shall also include the agency'
s ranking in relation to all other responsive bidders and their
respective price proposals and a summary of the community college
district's rationale for the contract award.
(F) For purposes of this chapter, "skilled labor force
availability" means that an agreement exists with a registered
apprenticeship program, approved by the California Apprenticeship
Council, which has graduated apprentices in each of the immediately
preceding five years. This graduation requirement shall not apply to
programs providing apprenticeship training for any craft that has not
been deemed by the Department of Labor and the Department of
Industrial Relations to be an apprenticable craft in the five years
before enactment of the act adding this section.
(G) For purposes of this chapter, a bidder's "safety record" shall
be deemed "acceptable" if its experience modification rate for the
most recent three-year period is an average of 1.00 or less, and its
average total recordable injury or illness rate and average lost work
rate for the most recent three-year period does not exceed the
applicable statistical standards for its business category, or if the
bidder is a party to an alternative dispute resolution system as
provided for in Section 3201.5 of the Labor Code.
(H) For purposes of this chapter, when a community college
district determines a design-build entity's "experience," the
community college district shall give credit only to design-build
experience and to California school design and construction
experience.
SEC. 5. Section 4 of Chapter 421 of the Statutes of 2001, as
amended by Section 9 of Chapter 471 of the Statutes of 2007, is
amended to read:
Sec. 4. This act shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.
SEC. 6. Section 4 of Chapter 637 of the Statutes of 2002, as
amended by Section 10 of Chapter 471 of the Statutes of 2007, is
amended to read:
Sec. 4. This act shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.