BILL NUMBER: AB 1724 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 28, 2014
INTRODUCED BY Assembly Member Frazier
FEBRUARY 14, 2014
An act to amend Section 91.5 of the Streets and Highways
Code, relating to highways. An act to add Chapter 6.7
(commencing with Section 6970) to Part 1 of Division 2 of the Public
Contract Code, relating to public contract s, and making
an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 1724, as amended, Frazier. State highways: litter
control. Construction Manager/General Contractor
method: regional transportation agencies.
Existing law generally sets forth the requirements for the
solicitation and evaluation of bids and the awarding of contracts by
local agencies for public works contracts. Existing law authorizes
the Department of Transportation, the Santa Clara County Valley
Transportation Authority, and the San Mateo County Transit District
to use the Construction Manager/General Contractor project delivery
method for transit projects within their respective jurisdictions,
subject to certain conditions and requirements.
This bill would authorize regional transportation agencies, as
defined, to use the Construction Manager/General Contractor project
delivery method, as specified, to design and construct certain
projects. The bill would require a regional transportation agency,
within 180 days after the completion of any project using the
Construction Manager/General Contractor project delivery method, to
prepare a report that describes each project and provides relevant
data, as specified. The bill would also require that report to be
posted on the regional transportation agency's Internet Web site, and
would require the agency to notify the Chair of the Assembly
Committee on Transportation and the Chair of the Senate Committee on
Transportation and Housing that the report is available online.
The bill would further require a regional transportation agency
using the Construction Manager/General Contractor project delivery
method to comply with certain prevailing wage provisions and to
reimburse the Department of Industrial Relations for its reasonable
and related enforcement costs, as specified. By requiring these
reimbursements to be deposited into the State Public Works
Enforcement Fund, a continuously appropriated fund, the bill would
make an appropriation.
Existing law authorizes the Department of Transportation to enter
into an agreement to accept funds, materials, equipment, or services
from any person for maintenance of a section of state highway,
including, cleanup or abatement of litter, and to post a courtesy
sign in that regard.
This bill would make nonsubstantive changes to these provisions.
Vote: majority. Appropriation: no yes
. Fiscal committee: no yes .
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 6.7 (commencing with Section
6970) is added to Part 1 of Division 2 of the Public
Contract Code , to read:
CHAPTER 6.7. CONSTRUCTION MANAGER/GENERAL CONTRACTOR METHOD:
REGIONAL TRANSPORTATION AGENCIES
6970. For purposes of this chapter, the following definitions
apply:
(a) "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
Construction Manager/General Contractor method contract.
(b) "Construction Manager/General Contractor method" means a
project delivery method 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) "Department" means the Department of Transportation as
established under Part 5 (commencing with Section 14000) of Division
3 of the Government Code.
(d) "Preconstruction services" means advice during the design
phase including, but not limited to, scheduling, pricing, and phasing
to assist the regional transportation agency to design a more
constructible project.
(e) "Project" means the construction of a highway, bridge,
expressway, or tunnel.
(f) "Regional transportation agency" means any of the following:
(1) A transportation planning agency described in Section 29532 or
29532.1 of the Government Code.
(2) A county transportation commission established under Section
130050, 130050.1, or 130050.2 of the Public Utilities Code.
(3) Any other local or regional transportation entity that is
designated by statute as a regional transportation agency.
(4) A local transportation authority designated pursuant to
Division 12.5 (commencing with Section 131000) or Division 19
(commencing with Section 180000) of the Public Utilities Code.
(5) The Santa Clara Valley Transportation Authority established
pursuant to Part 12 (commencing with Section 100000) of Division 10
of the Public Utilities Code.
6974. (a) The Construction Manager/General Contractor method may
be used by a regional transportation agency pursuant to this chapter
if, after evaluation of the traditional design-bid-build process of
construction and of the Construction Manager/General Contractor
method in a public meeting, the regional transportation agency makes
a written finding that use of the Construction Manager/General
Contractor method on the specific project under consideration will
accomplish one or more of the following objectives: reduce project
costs, expedite the project's completion, or provide features not
achievable through the design-bid-build method. This finding shall be
made prior to the regional transportation agency entering into a
Construction Manager/General Contractor method contract.
(b) Except as specified in subdivision (c), the regional
transportation agency 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 Section 1771.5 of the Labor Code on
projects using the Construction Manager/General Contractor method
under this chapter. 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.
(c) In lieu of complying with subdivision (a), the regional
transportation agency may elect to enter 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.
(d) (1) Within 180 days after the completion of a project using
the Construction Manager/General Contractor method, the regional
transportation agency shall prepare a report including all of the
following:
(A) Data on initial cost estimates, actual cost upon completion,
and the reasons for any difference.
(B) Estimated time for completion, actual time of completion, and
the reasons for any difference.
(C) The number and dollar value of any change orders for all
projects completed using the Construction Manager/General Contractor
method.
(2) A report required by this subdivision shall be posted on the
regional transportation agency's Internet Web site. The regional
transportation agency shall notify the Chair of the Assembly
Committee on Transportation and the Chair of the Senate Committee on
Transportation and Housing that the report is available online.
6976. A Construction Manager/General Contractor method project
shall progress as follows:
(a) A regional transportation agency that intends to use the
Construction Manager/General Contractor method shall adopt a
procedure for the evaluation and selection of a construction manager
in a public meeting. The procedure shall include a two-phased request
for qualifications (RFQ). Under Phase 1 of the RFQ, the Construction
Manager (CM) is identified using a qualifications-based selection
process. In Phase 2 of the RFQ, the CM transitions to the General
Contractor (GC) who completes the work under either a fixed price or
guaranteed maximum price.
(b) The procedures adopted by the regional transportation agency
shall include, at a minimum, all of the following:
(1) The criteria for membership in its selection panel.
(2) The evaluation criteria and relative weighting of the
evaluation criteria for scoring and ranking the construction manager
qualifications.
(3) If the regional transportation agency intends to establish a
preliminary list of the highest qualified firms who will be
subsequently interviewed prior to ranking the final list, the
evaluation criteria and relative weighting of the evaluation criteria
for scoring and ranking the construction manager interviews and the
method used to rank the final list using a combination of RFQ and
interview criteria.
(4) The minimum number, if any, of proposers who must respond to
the regional transportation agencies RFQ for the agency to use the
Construction Manager/General Contractor method.
(5) The maximum number, if any, of construction manager firms who
will be deemed qualified to continue to the interview phase, if used,
or to the negotiations.
(6) The process by which it will use an independent cost estimator
(ICE) as part of its negotiation for fixed price or guaranteed
maximum price construction services contract.
(7) Any specific subcontracting requirements deemed necessary by
the regional transportation agency in addition to that required by
existing statutes.
(c) (1) For each RFQ, the regional transportation agency shall
establish a selection panel to evaluate and rank proposals. A person
who is a member of the selection panel shall not be a contractor
under the contract or provide construction services, materials, or
other services under the contract. The regional transportation agency
shall generate a final list of qualified persons or firms that
participated in the RFQ prior to entering into negotiations on the
contract or contracts to which the RFQ applies.
(2) The regional transportation agency and its selection panel
shall not request or consider fees, price, man-hours, or any other
cost information in its evaluation and ranking of proposals and
establishment of the final list for that contract.
(d) (1) For each RFQ, the regional transportation agency shall
enter into separate negotiations for the contract with the highest
qualified person or firm on the final list for that contract.
However, if the RFQ is for multiple contracts and specifies that all
of the multiple contracts will be awarded to a single construction
manager, there may be a single negotiation for all of the multiple
contracts. The negotiations shall include consideration of
compensation and other contract terms that the regional
transportation agency determines to be fair and reasonable to the
regional transportation agency. In making this decision, the regional
transportation agency shall take into account the estimated value,
the scope, the complexity, and the nature of the professional
services or construction services to be rendered. If the regional
transportation agency is not able to negotiate a satisfactory
contract with the highest qualified person or firm on the final list,
regarding compensation and on other contract terms the regional
transportation agency determines to be fair and reasonable, the
regional transportation agency shall formally terminate negotiations
with that person or firm. The regional transportation agency may
undertake negotiations with the next most qualified person or firm on
the final list in sequence until an agreement is reached or a
determination is made to reject all persons or firms on the final
list.
(2) If a contract for construction services is entered into
pursuant to this chapter and includes preconstruction services by the
construction manager, the regional transportation agency shall enter
into a written contract with the construction manager for
preconstruction services under which contract the regional
transportation agency shall pay the construction manager a fee for
preconstruction services in an amount agreed upon by the regional
transportation agency and the construction manager. The
preconstruction services contract may include fees for services to be
performed during the contract period provided, however, the regional
transportation agency 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 regional transportation agency
has entered into a services contract. A preconstruction services
contract shall provide for the subsequent negotiation for
construction of all or any discreet phase or phases of the project.
(3) A contract for construction services shall 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 regional transportation agency shall not award the
contract for construction services.
(4) The regional transportation agency is not required to award
the construction services contract.
(5) Construction shall not commence on any phase, package, or
element until the regional transportation agency and construction
manager agree in writing on either a fixed price that the regional
transportation agency will pay for the construction to be commenced
or a guaranteed maximum price for the construction to be commenced
and construction schedule for the project. The construction manager
shall perform not less than 30 percent of the work covered by the
fixed price or guaranteed maximum price agreement reached. Work that
is not performed directly by the construction manager shall be bid to
subcontractors pursuant to Section 6705.
(e) In the event the regional transportation agency and the
construction manager cannot successfully negotiate a fixed price or
guaranteed maximum price contract, the regional transportation agency
shall be able to, at its sole discretion, publicly advertise and
award the construction contract using the plans and specifications
developed with the preconstruction services provided by construction
manager input. The construction manager shall not be excluded from
submitting a bid on this type of contract.
6978. All subcontractors bidding on contracts pursuant to this
chapter shall be afforded the protections contained in Chapter 4
(commencing with Section 4100). The construction manager shall do all
of the following:
(a) Provide public notice of the availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the regional
transportation agency.
(b) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with the procedure established pursuant
to this chapter.
(c) Comply with any subcontracting procedures adopted by the
regional transportation agency that were included in the regional
transportation agency's RFQ. If the regional transportation agency
has adopted procedures to prequalify public works contractors, the
construction manager may use the procedures to prequalify
subcontractors.
6980. Contracts awarded pursuant to this chapter shall be valid
until the project is completed.
6982. Nothing in this chapter is intended to affect, expand,
alter, or limit any rights or remedies otherwise available at law.
SECTION 1. Section 91.5 of the Streets and
Highways Code is amended to read:
91.5. (a) The department may enter into an agreement to accept
funds, materials, equipment, or services from any person for
maintenance or roadside enhancement, including the cleanup and
abatement of litter, of a section of a state highway. The department
and the sponsoring person may specify in the agreement the level of
maintenance that will be performed.
(b) The director may authorize a courtesy sign. The courtesy signs
shall be consistent with existing code provisions and department
rules and regulations concerning those signs.