BILL ANALYSIS Ó
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: AB 2149 HEARING: 5/14/14
AUTHOR: Atkins FISCAL: No
VERSION: 2/20/14 TAX LEVY: No
CONSULTANT: Weinberger
SAN DIEGO COUNTY PUBLIC CONSTRUCTION CONTRACTS
Exempts San Diego County's contract for the delivery of a
new regional communications system from provisions of the
Local Agency Public Construction Act.
Background and Existing Law
The Local Agency Public Construction Act requires local
officials to invite bids for construction projects and then
award contracts to the lowest responsible bid-der. This
"design-bid-build" method is the traditional, and most
widely-used, approach to public works construction. This
approach splits construction projects into two distinct
phases: design and construction. During the design phase,
the local agency prepares detailed project plans and
specifications using its own employees or by hiring outside
architects and engineers. Once project designs are
complete, local officials invite bids from construction
firms and award the contract to the lowest responsible
bidder.
By contrast, state law also allows local officials to use
several alternative procurement methods for some types of
construction projects:
Counties can use the "design-build" method to
construct buildings and related improvements and
wastewater treatment facilities that cost more than
$2.5 million (SB 416, Ashburn, 2007). Under
design-build, the owner contracts with a single entity
- which can be a single firm, a consortium, or a joint
venture - to design and construct a project. Before
inviting bids, the owner prepares documents that
describe the basic concept of the project, as opposed
to a complete set of drawings and specifications of
the final product. In the bidding phase, the owner
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typically evaluates bids on a best-value basis,
incorporating technical factors, such as
qualifications and design quality, in addition to
price.
Counties can use "construction manager at-risk"
construction contracts for erecting, constructing,
altering, repairing, or improving buildings owned or
leased by the county for projects in excess of
$1,000,000 (SB 328, Knight, 2013). The construction
manager at-risk approach to public works construction
and delivery combines elements of the design-bid-build
and design-build methods, and uses construction
project management services. The construction manager
at-risk method allows the owner of a project to retain
a "construction manager," who provides
pre-construction services during the design period and
later becomes the general contractor during the
construction process.
Counties can solicit proposals and enter into
agreements, through a "competitive negotiation
process," with private contractors for the study,
planning, design, financing, construction,
maintenance, re-building, improvement, repair, or
operation by private entities of specific types of
fee-producing infrastructure (AB 2660, Aguiar, 1996).
Los Angeles County can solicit proposals and enter
into agreements with private entities for the delivery
of a regional interoperable communications system and
all related infrastructure to be used by public safety
agencies and emergency responders located in the
County of Los Angeles (AB 946, Lowenthal, 2011). The
solicitation process must ensure that the contractor
is selected in compliance with a "procurement by
competitive proposals" process as described in
specified Federal regulations.
Pursuant to the terms of a 1995 agreement with regional
public safety service providers, the County of San Diego
procured and constructed a Regional Communications System
(RCS) to provide public safety and public service radio
communications service to San Diego and Imperial Counties,
24 incorporated cities, and numerous other local, state,
federal, and tribal government agencies. The County
AB 2149 -- 2/20/14 -- Page 3
continues to operate the RCS, for the use and benefit of
the parties to the 1995 RCS agreement. However, the RCS
infrastructure is approaching obsolescence and must be
replaced. The County is working with RCS partner agencies
to plan for replacing the system with a next generation
public safety interoperable communications system.
Because the next generation RCS project involves a
relatively small construction component, while requiring
procurement of significant technology components, including
updated hardware and software, San Diego County officials
do not believe that state law's lowest competitive bid
requirements will produce the best results in selecting a
contractor for the project. They want the Legislature to
exempt the RCS project from the Local Agency Public
Construction Act and authorize the county to use a
competitive procurement process that would allow price to
be considered among other factors in awarding a contract
for a new RCS system.
Proposed Law
Assembly Bill 2149 exempts, from the provisions of the
Local Agency Public Construction Act that apply to
counties, a contract entered into by the County of San
Diego with a private entity for the delivery of a regional
communications system and any related infrastructure to be
used by public safety agencies and emergency responders
located in the Counties of Imperial and San Diego. AB 2149
allows the County of San Diego to use any competitive
procurement method to procure the regional communications
systems and related infrastructure including specified
statutes that would otherwise apply to the County of San
Diego.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . The RCS is a public safety voice
communications
system that provides vital radio communications for
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twenty-one 911 dispatch communications centers and
thousands of first responders throughout San Diego County
and Imperial County. The RCS provides a high level of
interoperability, enabling public safety agencies in the
two counties to communicate in all types of emergencies and
disaster responses, which is essential not only for the
daily emergencies that first responders handle, but for
catastrophic events such as the wildfires of 2003 and 2007
that require all of a region's first responders to work
together and receive the same information. Updating the
RCS to replace obsolete components, improve system
coverage, and increase system capacity involves unique
technological requirements, requiring integration of the
project's software, hardware, and constructed
infrastructure elements. As a result, a traditional
lowest-responsible-bidder contract process is not the best
procurement method for upgrading the RCS. Similar to the
authority granted by AB 946 (Lowenthal, 2011), AB 2149
grants San Diego County officials the autonomy to contract
for a new regional communications system through a
competitive procurement process that allows for the
consideration of the project's specialized emergency
communications technology requirements.
2. Details, details . When authorizing local governments
to use alternative procurement methods, the Legislature
often defines specific criteria that local officials must
consider when soliciting proposals and awarding contracts.
For example, state law defines the "best value" criteria
that must be considered as part of the design-build
contracting process. The 2011 Lowenthal bill required Los
Angeles officials to comply with specified federal
competitive procurement regulations when contracting for a
regional communications system. By contrast, AB 2149 does
not specify what factors San Diego County officials must
consider as part of their procurement process for the new
RCS. AB 2149 doesn't even explicitly require price to be
considered in awarding a contract for the new RCS. To
remain consistent with the precedent established in other
alternative procurement statutes, the Committee may wish to
consider amending AB 2149 to specify criteria that will be
used as a part of the competitive negotiated procurement
process authorized by the bill.
3. Special legislation . The California Constitution
prohibits special legislation when a general law can apply
AB 2149 -- 2/20/14 -- Page 5
(Article IV, §16). AB 2149 contains findings and
declarations explaining the need for legislation that
applies only to the County of San Diego.
Assembly Actions
Assembly Local Government Committee: 9-0
Assembly Floor: 78-0
Support and Opposition (5/8/14)
Support : American Medical Response; Bonita-Sunnyside Fire
Protection District; Calexico Fire Department; Chula Vista
Police Department; Carlsbad Police Department; Coronado
Police Department; El Cajon Police Department; County of
Imperial; County of San Diego; Escondido Police Department;
Imperial Valley Emergency Communications Authority; La Mesa
Police Department; National City Police Department;
Oceanside Police Department; San Diego County Fire Chiefs
Association; San Diego County Police Chiefs and Sheriffs
Association; San Diego County Sheriff; San Diego Harbor
Police Department; San Diego Police Department; Urban
Counties Caucus.
Opposition : Unknown.