BILL NUMBER: SB 1549 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Vargas
FEBRUARY 24, 2012
An act to add Chapter 6.6 (commencing with Section 6950) to Part 1
of Division 2 of the Public Contract Code, relating to public
contracts, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
SB 1549, as introduced, Vargas. Transportation projects:
construction Manager/General Contractor project method.
Existing law sets forth the requirements for the solicitation and
evaluation of bids and the awarding of contracts by state agencies
for projects, as specified, and for local agencies for public works
contracts, as specified.
This bill would, upon authorization by the California
Transportation Commission, allow a consolidated San Diego regional
transportation entity, as specified, or the Department of
Transportation to engage in a Construction Manager/General Contractor
project delivery method, as specified, for up to 20 total projects
for either local street or road, bridge, tunnel, or public transit
projects within the jurisdiction of the local transportation entity
or state highway, bridge, or tunnel projects by the Department of
Transportation. The bill would require a transportation entity, as
defined, to pay fees related to prevailing wage monitoring and
enforcement into the State Public Works Enforcement Fund, a
continuously appropriated fund, except as specified, and, thus, would
make an appropriation. The bill would also require a progress report
to be submitted by the transportation agency to the commission every
year following the award of a contract under these provisions, and
would require the commission to submit an annual report to the
Legislature that includes the information in the report submitted by
the transportation agency, as specified. This bill would require
specified information to be verified under oath, thus imposing a
state-mandated local program by expanding the scope of an existing
crime. The bill would provide that its provisions are severable.
This bill would make legislative findings and declarations as to
the necessity of a special statute for San Diego regional
transportation entities.
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: yes. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 6.6 (commencing with Section 6950) is added to
Part 1 of Division 2 of the Public Contract Code, to read:
CHAPTER 6.6. THE ALTERNATIVE PROJECT DELIVERY DEMONSTRATION
PROGRAM: CONSTRUCTION MANAGER/GENERAL CONTRACTOR AUTHORITY
6950. The Legislature finds and declares all of the following:
(a) The alternative public works project delivery methods
authorized under this chapter should be evaluated for the purposes of
exploring whether the potential exists for reduced project costs,
expedited project completion, or design features that are not
achievable through the traditional project delivery methods.
(b) The design sequencing and Construction Manager/General
Contractor project delivery methods rely on existing design-bid-build
and design build procurement methods respectively and have been
successfully used by both public and private sector entities in
California and other states for over a decade on projects that
require a quick startup as they allow construction to begin before
the design plans are complete for the entire project.
(c) Both methods also have the benefit of allowing for earlier
collaboration between the project owner and construction contractor.
A demonstration program for alternative project delivery methods will
allow for a careful examination of the benefits and challenges
associated with these methods.
(d) This chapter shall not be deemed to provide a preference for
these project delivery methods over other delivery methodologies.
6951. For purposes of this chapter, the following definitions
apply:
(a) "Commission" means the California Transportation Commission.
(b) "Construction Manager/General Contractor method" or "CMGC"
means a project delivery method using a best value procurement
process in which a construction manager is procured to provide
preconstruction services during the design phase of the project and
construction services during the construction phase of the project.
The contract for construction services may be entered into at the
same time as the contract for preconstruction services, or at a later
time. The execution of the design and the construction of the
project may be in sequential phases or concurrent phases.
(c) "Construction manager" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting and engineering services as needed pursuant to a CMGC
contract.
(d) "Design sequencing" means a method of project delivery using
the design-bid-build contracting process that enables the sequencing
of design activities to permit each construction phase to commence
when 30 percent or more of the design for that phase is complete,
instead of requiring design for the entire project to be completed
before commencing construction.
(e) "Department" means the Department of Transportation as
established under Part 5 (commencing with Section 14000) of Division
3 of the Government Code.
(f) "Local transportation entity" means the consolidated agency
created pursuant to Chapter 3 (commencing with Section 132350) of
Division 12.7 of the Public Utilities Code.
(g) "Transportation entity" means the department or a local
transportation entity.
6952. (a) Subject to the limitations of this chapter, a local
transportation entity, if authorized by the commission, may utilize
the design sequencing or CMGC methods of project delivery for
projects that may be for local street or road, bridge, tunnel, or
public transit projects within the jurisdiction of the entity.
(b) Subject to the limitations of this chapter, the department, if
authorized by the commission, may utilize the design sequencing or
CMGC methods of procurement for state highway, bridge, or tunnel
projects.
6953. (a) Up to 20 projects shall be authorized under this
chapter. The transportation entities authorized to use the design
sequencing and CMGC project delivery methods pursuant to this chapter
shall endeavor to select projects that vary in size, type, and
geographical location.
(b) The commission shall establish a peer review committee to
conduct an evaluation of the projects selected to utilize the
alternative project delivery methods under this chapter.
6954. (a) Except as specified in subdivision (b), the
transportation entity shall comply with subdivision (f) of Section
1771.5 of the Labor Code and shall reimburse the Department of
Industrial Relations for its reasonable and directly related costs of
performing prevailing wage monitoring and enforcement on public
works projects pursuant to rates established by the department as set
forth in subdivision (h) of that section. All moneys collected
pursuant to this subdivision shall be deposited in the State Public
Works Enforcement Fund, created by Section 1771.3 of the Labor Code,
and shall be used only for enforcement of prevailing wage
requirements on those projects.
(b) In lieu of complying with subdivision (a), the transportation
entity may elect to operate a labor compliance program approved by
the Department of Industrial Relations to monitor and enforce
prevailing wage requirements on the project if it requests and
receives approval from the department to use its own labor compliance
program or it enters into a collective bargaining agreement that
binds all of the contractors performing work on the project and that
includes a mechanism for resolving disputes about the payment of
wages.
6955. (a) All CMGC contracts awarded pursuant to this chapter
shall be subject to the procurement method requirements for design
build contracts set forth in Chapter 6.5 (commencing with Section
6800) of Part 1 of Division 2, except insofar as they may conflict
with the provisions of this chapter. The limitation on the number of
design build projects authorized by that chapter shall not apply to
projects authorized under this chapter.
(b) All design sequencing contracts awarded pursuant to this
chapter shall be subject to Chapter 10 (commencing with Section 4525)
and Chapter 10.1 (commencing with Section 4529.10) of Division 5 of
the Government Code and Part 1 (commencing with Section 1100) of,
Chapter 1 (commencing with Section 10100) of Part 2 of, and Part 3
(commencing with Section 20100) of, Division 2 of this code, as
applicable, except that construction may be commenced as specified in
subdivision (d) of Section 6951.
6956. If a contract for CMGC services is entered into pursuant
to this chapter and includes preconstruction services by the
construction manager, the transportation entity shall enter into a
written contract with the construction manager for preconstruction
services, under which the transportation entity shall pay the
construction manager a fee for preconstruction services in an amount
agreed upon by the transportation entity and the construction
manager. The preconstruction services contract may include fees for
services to be performed during the contract period; provided,
however, the transportation entity shall not request or obtain a
fixed price or a guaranteed maximum price for the construction
contract from the construction manager or enter into a construction
contract with the construction manager until after the transportation
entity has entered into a services contract. Every preconstruction
services contract shall provide for the subsequent negotiation for
construction of all or any discreet phase or phases of the project
and shall provide for the awarding transportation entity to own the
design plans and other preconstruction services work product. A
contract for construction services will be awarded after the plans
have been sufficiently developed and either a fixed price or a
guaranteed maximum price has been successfully negotiated. In the
event that a fixed price or a guaranteed maximum price is not
negotiated, the transportation entity may award the contract for
construction services utilizing any other procurement method
authorized by law.
6957. (a) Notwithstanding any other provision of this chapter,
for a project authorized under this chapter that will be constructed
on state owned right of way, the department is the responsible agency
for the performance of project development services, including
performance specifications, preliminary engineering, prebid services,
the preparation of project reports and environmental documents, and
construction inspection services. The department is also the
responsible agency for the preparation of documents that may include,
but need not be limited to, the size, type, and desired design
character of the project, performance specifications covering quality
of materials, equipment, and workmanship, preliminary plans, and any
other information deemed necessary to describe adequately the needs
of the transportation entity.
(b) The department may use department employees or consultants to
perform the services described in subdivision (a), consistent with
Article XXII of the California Constitution. Department resources,
including personnel requirements, necessary for the performance of
those services shall be included in the department's capital outlay
support program for workload purposes in the annual Budget Act.
6958. Nothing in this chapter affects, expands, alters, or limits
any rights or remedies otherwise available at law.
6959. (a) Not later than June 30 of each year after a contract is
awarded using the CMGC or design sequencing project delivery method,
the awarding transportation entity shall submit a progress report to
the commission. The progress report shall include, but shall not be
limited to, all of the following information:
(1) A description of the project.
(2) The entity that was awarded the project.
(3) The estimated and actual costs of the project.
(4) The estimated and actual schedule for project completion.
(5) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the project, including,
but not limited to, the resolution of the protests.
(6) An assessment of the prequalification process and criteria
utilized under this chapter if the design build procurement method is
used.
(7) A description of the labor compliance program required under
Section 6954 and an assessment of the impact of this requirement on a
project.
(8) A description of the method used to evaluate the bid or
proposal, including the weighting of each factor and an assessment of
the impact of this requirement on a project.
(9) A description of any challenges or unexpected problems that
arose during the construction of the project and a description of the
solutions that were considered and ultimately implemented to address
those challenges and problems.
(10) Recommendations to improve the alternative project delivery
methods authorized under this chapter.
(b) (1) The commission shall submit an annual report to the
Legislature that includes the information provided pursuant to
subdivision (a).
(2) A report to be submitted pursuant to paragraph (1) shall be
submitted in compliance with Section 9795 of the Government Code.
6960. The provisions of this chapter are severable. If any
provision of this chapter or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
Contracts awarded pursuant to this section shall be valid until the
project is completed.
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 of the unique need for alternative contracting authority for
local transportation projects under the jurisdiction of San Diego
regional transportation entities.
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.