SB 785, as amended, Wolk. Design-build.
Existing law authorizes the Department of General Services, the Department of Corrections and Rehabilitation, and various local agencies to use the design-build procurement process for specified public works under different laws.
This bill would repeal those authorizations, and enact provisions that would authorize the Department of General Services, the Department of Corrections and Rehabilitation, and those local agencies, as defined, to use the design-build procurement process for specified public works. The bill would require moneys that are collected under these provisions to be deposited into the State Public Works Enforcement Fund, subject to appropriation by the Legislature. The bill would require specified information to be verified under penalty of perjury. By expanding the crime of perjury, the bill would impose a state-mandated local program.
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:
It is the intent of the Legislature to consolidate
2existing design-build statutes and eliminate inconsistencies in
3statutory language by adopting authority of general application to
4identified agencies and repealing superseded sections.
Section 14661 of the Government Code is repealed.
Section 14661.1 of the Government Code is repealed.
Section 32132.5 of the Health and Safety Code is
8amended to read:
(a) Notwithstanding Section 32132 or any other law,
10upon approval by the board of directors of the Sonoma Valley
11Health Care District, the design-build procedure described in
12begin delete Article 6 (commencing with Section 10186) of Chapter 1 of Part begin insert Chapter 4 (commencing with Section 22160) of Part 3end insert of Division
132end delete
142 of the Public Contract Code may be used to assign contracts for
15the construction of a building or improvements directly related to
16construction of a hospital or health facility building at the Sonoma
17Valley Hospital.
18(b) For purposes of this section, all references inbegin delete Article 6
19(commencing with Section 10186) of
Chapter 1 of Part 2end delete
204 (commencing with Section 22160) of Part 3end insert of Division 2 of the
21Public Contract Code to “county” and “governing body” shall
22mean the Sonoma Valley Health Care District.
23(c) A hospital building project utilizing the design-build process
24authorized by subdivision (a) shall be reviewed and inspected in
25accordance with the standards and requirements of the Alfred E.
26Alquist Hospital Facilities Seismic Safety Act of 1983 (Chapter 1
27(commencing with Section 129675) of Part 7 of Division 107).
Article 6 (commencing with Section 10186) is added
2to Chapter 1 of Part 2 of Division 2 of the Public Contract Code,
3to read:
4
(a) The Legislature finds and declares that the
8design-build method of project delivery, using a best value
9procurement methodology, has been authorized for various
10agencies that have reported benefits from such projects including
11reduced project costs, expedited project completion, and design
12features that are not achievable through the traditional
13design-bid-build method.
14(b) It is the intent of the Legislature that the following occur:
15(1) This article provides general authorization for certain state
16agencies to use design-build for projects, excluding projects on
17the state highway system.
18(2) This article shall not be deemed to provide a preference for
19the design-build method over other procurement methodologies.
For purposes of this article, the following definitions
21apply:
22(a) “Best value” means a value determined by evaluation of
23objective criteria related to price, features, functions, life cycle
24costs, experience, and past performance. A best value determination
25may entail selection of
the lowest priced technically acceptable
26proposals or selection of the best proposal for a fixed price
27established by the procuring agency, or it may consist of a tradeoff
28between price and other specified factors.
29(b) “Construction subcontract” means each subcontract awarded
30by the design-build entity to a subcontractor that will perform work
31or labor or render service to the design-build entity in or about the
32construction of the work or improvement, or a subcontractor
33licensed by the State of California that, under subcontract to the
34design-build entity, specially fabricates and installs a portion of
35the work or improvement according to detailed drawings contained
36in the plans and specifications produced by the design-build team.
37(c) “Department” means the
Department of General Services
38and the Department of Corrections and Rehabilitation.
P4 1(d) “Design-build” means a project delivery process in which
2both the design and construction of a project are procured from a
3single entity.
4(e) “Design-build entity” means a corporation, limited liability
5company, partnership, joint venture, or other legal entity that is
6able to provide appropriately licensed contracting, architectural,
7and engineering services as needed pursuant to a design-build
8contract.
9(f) “Design-build team” means the design-build entity itself and
10the individuals and other entities identified by the design-build
11entity as members of its team. Members shall include the general
12contractor and, if utilized in
the design of the project, all electrical,
13mechanical, and plumbing contractors.
14(g) “Director” means, with respect to procurements undertaken
15by the Department of General Services, the Director of General
16Services or, with respect to procurements undertaken by the
17Department of Corrections and Rehabilitation, the secretary of that
18department.
(a) Notwithstanding any other law, the director,
20following notification to the State Public Works Board, may
21procure design-build contracts for public works projects in excess
22of one million dollars ($1,000,000), awarding the contract using
23either the low bid or best value, provided that this article shall not
24apply to any projects on the state highway system.
25(b) The director shall develop guidelines for a standard
26organizational conflict-of-interest policy, consistent with applicable
27law, regarding the ability of a person or entity, that performs
28services for the department relating to the solicitation of a
29design-build project, to submit a proposal as a design-build
entity,
30or to join a design-build team. This conflict-of-interest policy shall
31apply to each department entering into design-build contracts
32authorized under this article.
(a) For contracts for public works projects awarded on
34or after the effective date of the regulations adopted by the
35Department of Industrial Relations pursuant to subdivision (g) of
36Section 1771.5 of the Labor Code, the department shall reimburse
37the Department of Industrial Relations for its reasonable and
38directly related costs of performing prevailing wage monitoring
39and enforcement on public works projects pursuant to rates
40established by the department as set forth in subdivision (h) of
P5 1Section 1771.5 of the Labor Code. All moneys collected pursuant
2to this subdivision shall be deposited in the State Public Works
3Enforcement Fund, created by Section 1771.3 of the Labor Code,
4and shall, subject to appropriation by the
Legislature, be used only
5for enforcement of prevailing wage requirements on those projects.
6(b) In lieu of reimbursing the Department of Industrial Relations
7for its reasonable and directly related costs of performing
8monitoring and enforcement on public works projects, the
9department may elect to continue operating an existing previously
10approved labor compliance program to monitor and enforce
11prevailing wage requirements on the project if it has either not
12contracted with a third party to conduct its labor compliance
13program and requests and receives approval from the department
14to continue its existing program or it enters into a collective
15bargaining agreement that binds all of the contractors performing
16work on the project and that includes a mechanism for resolving
17disputes about the payment of wages.
The director shall notify the State Public Works Board
19regarding the method to be used for selecting the design-build
20entity, prior to advertising the design-build project.
The procurement process for the design-build projects
22shall progress as follows:
23(a) (1) The director shall prepare a set of documents setting
24forth the scope and estimated price of the project. The documents
25may include, but need not be limited to, the size, type, and desired
26design character of the project, performance specifications covering
27the quality of materials, equipment, workmanship, preliminary
28plans or building layouts, or any other information deemed
29necessary to describe adequately the department’s needs. The
30performance specifications and any plans shall be prepared by a
31design professional who is duly licensed and registered in
32California.
33(2) The documents shall not include a design-build-operate
34contract for any project.
35(b) Based on the documents prepared under subdivision (a), the
36director shall prepare and issue a request for qualifications in order
37to prequalify or short-list the design-build entities whose proposals
38shall be evaluated for final selection. The request for qualifications
39shall include, but need not be limited to, the following elements:
P6 1(1) Identification of the basic scope and needs of the project or
2contract, the expected cost range, the methodology that will be
3used by the department to evaluate proposals, the procedure for
4final selection of the design-build entity, and any other information
5deemed necessary by the director to inform
interested parties of
6the contracting opportunity.
7(2) (A) Significant factors that the department reasonably
8expects to consider in evaluating qualifications, including technical
9design and construction expertise, skilled labor force availability,
10and all other nonprice-related factors.
11(B) For purposes of subparagraph (A), skilled labor force
12availability shall be deemed satisfied by the existence of an
13agreement with a registered apprenticeship program, approved by
14the California Apprenticeship Council, that has graduated at least
15one apprentice in each of the preceding five years. This graduation
16requirement shall not apply to programs providing apprenticeship
17training for any craft that was first deemed by the federal
18Department of Labor and the Department
of Industrial Relations
19to be an apprenticeable craft within the five years prior to the
20effective date of this article.
21(3) A standard template request for statements of qualifications
22prepared by the department. In preparing the standard template,
23the department may consult with the construction industry, the
24building trades and surety industry, and other agencies interested
25in using the authorization provided by this article. The template
26shall require the following information:
27(A) If the design-build entity is a privately held corporation,
28limited liability company, partnership, or joint venture, a listing
29of all of the shareholders, partners, or members known at the time
30of statement of qualification submission who will perform work
31on the project.
32(B) Evidence that the members of the design-build team have
33completed, or demonstrated the experience, competency, capability,
34and capacity to complete projects of similar size, scope, or
35complexity, and that proposed key personnel have sufficient
36experience and training to competently manage and complete the
37design and construction of the project, and a financial statement
38that ensures that the design-build entity has the capacity to
39complete the project.
P7 1(C) The licenses, registration, and credentials required to design
2and construct the project, including, but not limited to, information
3on the revocation or suspension of any license, credential, or
4registration.
5(D) Evidence that establishes that the
design-build entity has
6the capacity to obtain all required payment and performance
7bonding, liability insurance, and errors and omissions insurance.
8(E) Information concerning workers’ compensation experience
9history and a worker safety program.
10(F) If the proposed design-build entity is a corporation, limited
11liability company, partnership, joint venture, or other legal entity,
12a copy of the organizational documents or agreement committing
13to form the organization.
14(G) An acceptable safety record. A proposer’s safety record
15shall be deemed acceptable if its experience modification rate for
16the most recent three-year period is an average of 1.00 or less, and
17its average total recordable injury or illness rate and average lost
18
work rate for the most recent three-year period does not exceed
19the applicable statistical standards for its business category or if
20the proposer is a party to an alternative dispute resolution system
21as provided for in Section 3201.5 of the Labor Code.
22(4) (A) The information required under this subdivision shall
23be certified under penalty of perjury by the design-build entity and
24its general partners or joint venture members.
25(B) Information required under this subdivision that is not
26otherwise a public record under the California Public Records Act
27(Chapter 3.5 (commencing with Section 6250) of Division 7 of
28Title 1 of the Government Code) shall not be open to public
29inspection.
30(c) Based on the documents prepared as described in subdivision
31(a), the director shall prepare a request for proposals that invites
32prequalified or short-listed entities to submit competitive sealed
33proposals in the manner prescribed by the department. The request
34for proposals shall include, but need not be limited to, the following
35elements:
36(1) Identification of the basic scope and needs of the project or
37contract, the estimated cost of the project, the methodology that
38will be used by the department to evaluate proposals, whether the
39contract will be awarded on the basis of low bid or best value, and
P8 1any other information deemed necessary by the department to
2inform interested parties of the contracting opportunity.
3(2) Significant factors that the department
reasonably expects
4to consider in evaluating proposals, including, but not limited to,
5cost or price and all nonprice-related factors.
6(3) The relative importance or the weight assigned to each of
7the factors identified in the request for proposals.
8(4) Where a best value selection method is used, the department
9may reserve the right to request proposal revisions and hold
10discussions and negotiations with responsive proposers, in which
11case the department shall so specify in the request for proposals
12and shall publish separately or incorporate into the request for
13proposals applicable procedures to be observed by the department
14to ensure that any discussions or negotiations are conducted in
15good faith.
16(d) For those
projects utilizing low bid as the final selection
17method, the competitive bidding process shall result in lump-sum
18bids by the prequalified or short-listed design-build entities, and
19awards shall be made to the design-build entity that is the lowest
20responsible bidder.
21(e) For those projects utilizing best value as a selection method,
22the design-build competition shall progress as follows:
23(1) Competitive proposals shall be evaluated by using only the
24criteria and selection procedures specifically identified in the
25request for proposals.
26(2) Pursuant to subdivision (c), the department may hold
27discussions or negotiations with responsive proposers using the
28process articulated in the department’s request for proposals.
29(3) When the evaluation is complete, the responsive proposers
30shall be ranked based on a determination of value provided,
31provided that no more than three proposers are required to be
32ranked.
33(4) The award of the contract shall be made to the responsible
34design-build entity whose proposal is determined by the director
35to have offered the best value to the public.
36(5) Notwithstanding any other provision of this code, upon
37issuance of a contract award, the director shall publicly announce
38its award, identifying the design-build entity to which the award
39is made, along with a written decision supporting its contract award
40and stating the basis of the award.
P9 1(6) The written decision supporting the director’s contract award,
2described in paragraph (5), and the contract file shall provide
3sufficient information to satisfy an external audit.
(a) The design-build entity shall provide payment and
5performance bonds for the project in the form and in the amount
6required by the director, and issued by a California admitted surety.
7The amount of the payment bond shall not be less than the amount
8of the performance bond.
9(b) The design-build contract shall require errors and omissions
10insurance coverage for the design elements of the project.
11(c) The department shall develop a standard form of payment
12and performance bond for its design-build projects.
(a) The department, in each design-build request for
14proposals, may identify specific types of subcontractors that must
15be included in the design-build entity statement of qualifications
16and proposal. All construction subcontractors that are identified
17in the proposal shall be afforded all the protections of Chapter 4
18(commencing with Section 4100) of Part 1.
19(b) Following award of the design-build contract, the
20design-build entity shall proceed as follows in awarding
21construction subcontracts with a value exceeding one-half of 1
22percent of the contract price allocable to construction work:
23(1) Provide
public notice of availability of work to be
24subcontracted in accordance with the publication requirements
25applicable to the competitive bidding process of the department,
26including a fixed date and time on which qualifications statements,
27bids, or proposals will be due.
28(2) Establish reasonable qualification criteria and standards.
29(3) Award the subcontract either on a best value basis or to the
30lowest responsible bidder. The process may include prequalification
31or short-listing. The foregoing process does not apply to
32construction subcontractors listed in the original proposal.
33Subcontractors awarded construction subcontracts under this
34subdivision shall be afforded all the protections of Chapter 4
35(commencing with Section 4100) of Part 1.
(a) If the department elects to award a project pursuant
37to this article, retention proceeds withheld by the department from
38the design-build entity shall not exceed 5 percent if a performance
39and payment bond, issued by an admitted surety insurer, is required
40in the solicitation of bids.
P10 1(b) In a contract between the design-build entity and a
2subcontractor, and in a contract between a subcontractor and any
3subcontractor thereunder, the percentage of the retention proceeds
4withheld may not exceed the percentage specified in the contract
5between the department and the design-build entity. If the
6design-build entity provides written notice to any subcontractor
7that
is not a member of the design-build entity, prior to or at the
8time the bid is requested, that a bond may be required and the
9subcontractor subsequently is unable or refuses to furnish a bond
10to the design-build entity, then the design build entity may withhold
11retention proceeds in excess of the percentage specified in the
12contract between the department and the design-build entity from
13any payment made by the design-build entity to the subcontractor.
Nothing in this article affects, expands, alters, or limits
15any rights or remedies otherwise available at law.
Section 20133 of the Public Contract Code is repealed.
Section 20175.2 of the Public Contract Code is
18repealed.
Section 20193 of the Public Contract Code is repealed.
Section 20209 of the Public Contract Code is repealed.
Section 20301.5 of the Public Contract Code is
22repealed.
Article 22 (commencing with Section 20360) of
24Chapter 1 of Part 3 of Division 2 of the Public Contract Code is
25repealed.
Section 20688.6 of the Public Contract Code is
27repealed.
Chapter 4 (commencing with Section 22160) is added
29to Part 3 of Division 2 of the Public Contract Code, to read:
30
(a) The Legislature finds and declares that the
34design-build method of project delivery, using a best value
35procurement methodology, has been authorized for various
36agencies that have reported benefits from such projects including
37reduced project costs, expedited project completion, and design
38features that are not achievable through the traditional
39design-bid-build method.
40(b) It is the intent of the Legislature that the following occur:
P11 1(1) Thisbegin delete articleend deletebegin insert
chapterend insert provides general authorization for local
2agencies to use design-build for projects, excluding projects on
3the state highway system.
4(2) Thisbegin delete articleend deletebegin insert chapterend insert shall not be deemed to provide a
5preference for the design-build method over other procurement
6methodologies.
For purposes of thisbegin delete articleend deletebegin insert chapterend insert, the following
8definitions apply:
9(a) “Best value” means a value determined by evaluation of
10objective criteria related to price, features, functions, life cycle
11costs, experience, and past performance. A best value determination
12may entail selection of the lowest priced technically acceptable
13proposal or selection of the best proposal for a fixed price
14established by the procuring agency, or it may consist of a tradeoff
15between price and other specified factors.
16(b) “Construction subcontract” means each subcontract awarded
17by the design-build entity to a subcontractor that will perform work
18or labor or render service to the design-build entity in or about the
19construction of the work or improvement, or a subcontractor
20licensed by the State of California that, under subcontract to the
21design-build entity, specially fabricates and installs a portion of
22the work or improvement according to detailed drawings contained
23in the plans and specifications produced by the design-build team.
24(c) “Design-build” means a project delivery process in which
25both the design and construction of a project are procured from a
26single entity.
27(d) “Design-build entity” means a corporation, limited liability
28company,
partnership, joint venture, or other legal entity that is
29able to provide appropriately licensed contracting, architectural,
30and engineering services as needed pursuant to a design-build
31contract.
32(e) “Design-build team” means the design-build entity itself
33and the individuals and other entities identified by the design-build
34entity as members of its team. Members shall include the general
35contractor and, if utilized in the design of the project, all electrical,
36mechanical, and plumbing contractors.
37(f) “Local agency” means the following:
38(1) A city, county, or city and county.
39(2) A special district that operates wastewater facilities, solid
40waste management
facilities, or water recycling facilities.
P12 1(3) Any transit district, included transit district, municipal
2operator, included municipal operator, or transit development
3board, as defined in Section 99210 of the Public Utilities Code, or
4a consolidated agency, as defined in Section 132353.1 of the Public
5Utilities Code, or any joint powers authority formed to provide
6transit service.
7(g) (1) For a local agency defined in paragraph (1) of
8subdivision (f), “project” means the construction of a building and
9improvements directly related to the construction of a building,
10and county sanitation wastewater treatment facilities, but does not
11include the construction of other infrastructure, including, but not
12limited to, streets and highways, public rail transit, or water
13
resources facilities and infrastructure. For a local agency defined
14in paragraph (1) of subdivision (f) that operates wastewater
15facilities, solid waste management facilities, or water recycling
16facilities, “project” also means the construction of regional and
17local wastewater treatment facilities, regional and local solid waste
18facilities, or regional and local water recycling facilities.
19(2) For a local agency defined in paragraph (2) of subdivision
20(f), “project” means the construction of regional and local
21wastewater treatment facilities, regional and local solid waste
22facilities, or regional and local water recycling facilities.
23(3) For a local agency defined in paragraph (3) of subdivision
24(f), “project” means a transit capital project.
(a) Notwithstanding any other law, a local agency,
26with approval of its governing body, may procure design-build
27contracts for public works projects in excess of one million dollars
28($1,000,000), awarding the contract either the low bid or the best
29value, provided that this article shall not apply to any projects on
30the state highway system.
31(b) The local agency shall develop guidelines for a standard
32organizational conflict-of-interest policy, consistent with applicable
33law, regarding the ability of a person or entity, that performs
34services for the local agency relating to the solicitation of a
35design-build project, to submit a proposal as a design-build entity,
36or
to join a design-build team. This conflict-of-interest policy shall
37apply to each local agency entering into design-build contracts
38authorized under this article.
(a) For contracts for public works projects awarded on
40or after the effective date of the regulations adopted by the
P13 1Department of Industrial Relations pursuant to subdivision (g) of
2Section 1771.5 of the Labor Code, the local agency shall reimburse
3the department for its reasonable and directly related costs of
4performing prevailing wage monitoring and enforcement on public
5works projects pursuant to rates established by the department as
6set forth in subdivision (h) of Section 1771.5 of the Labor Code.
7All moneys collected pursuant to this subdivision shall be deposited
8in the State Public Works Enforcement Fund, created by Section
91771.3 of the Labor Code, and shall, subject to appropriation by
10the Legislature, be used
only for enforcement of prevailing wage
11requirements on those projects.
12(b) In lieu of reimbursing the Department of Industrial Relations
13for its reasonable and directly related costs of performing
14monitoring and enforcement on public works projects, the local
15agency may elect to continue operating an existing previously
16approved labor compliance program to monitor and enforce
17prevailing wage requirements on the project if it has either not
18contracted with a third party to conduct its labor compliance
19program and requests and receives approval from the department
20to continue its existing program or it enters into a collective
21bargaining agreement that binds all of the contractors performing
22work on the project and that includes a mechanism for resolving
23disputes about the payment of wages.
The procurement process for the design-build projects
25shall progress as follows:
26(a) (1) The local agency shall prepare a set of documents setting
27forth the scope and estimated price of the project. The documents
28may include, but need not be limited to, the size, type, and desired
29design character of the project, performance specifications covering
30the quality of materials, equipment, workmanship, preliminary
31plans or building layouts, or any other information deemed
32necessary to describe adequately the local agency’s needs. The
33performance specifications and any plans shall be prepared by a
34design professional who is duly licensed and registered in
35California.
36(2) The documents shall not include a design-build-operate
37contract for any project.
38(b) Based on the documents prepared under subdivision (a), the
39local agency shall prepare and issue a request for qualifications in
40order to prequalify or short-list the design-build entities whose
P14 1proposals shall be evaluated for final selection. The request for
2qualifications shall include, but need not be limited to, the
3following elements:
4(1) Identification of the basic scope and needs of the project or
5contract, the expected cost range, the methodology that will be
6used by the local agency to evaluate proposals, the procedure for
7final selection of the design-build entity, and any other information
8deemed necessary by the
local agency to inform interested parties
9of the contracting opportunity.
10(2) (A) Significant factors that the local agency reasonably
11expects to consider in evaluating qualifications, including technical
12design and construction expertise, skilled labor force availability,
13and all other nonprice-related factors.
14(B) For purposes of subparagraph (A), skilled labor force
15availability shall be deemed satisfied by the existence of an
16agreement with a registered apprenticeship program, approved by
17the California Apprenticeship Council, that has graduated at least
18one apprentice in each of the preceding five years. This graduation
19requirement shall not apply to programs providing apprenticeship
20training for any craft that was first deemed by the federal
21Department of
Labor and the Department of Industrial Relations
22to be an apprenticeable craft within the five years prior to the
23effective date of this article.
24(3) A standard template request for statements of qualifications
25prepared by the local agency. In preparing the standard template,
26the local agency may consult with the construction industry, the
27building trades and surety industry, and other local agencies
28
interested in using the authorization provided by this article. The
29template shall require the following information:
30(A) If the design-build entity is a privately held corporation,
31limited liability company, partnership, or joint venture, a listing
32of all of the shareholders, partners, or members known at the time
33of statement of qualification submission who will perform work
34on the project.
35(B) Evidence that the members of the design-build team have
36completed, or demonstrated the experience, competency, capability,
37and capacity to complete projects of similar size, scope, or
38complexity, and that proposed key personnel have sufficient
39experience and training to competently manage and complete the
40design and construction of the project, and a financial statement
P15 1that
ensures that the design-build entity has the capacity to
2complete the project.
3(C) The licenses, registration, and credentials required to design
4and construct the project, including, but not limited to, information
5on the revocation or suspension of any license, credential, or
6registration.
7(D) Evidence that establishes that the design-build entity has
8the capacity to obtain all required payment and performance
9bonding, liability insurance, and errors and omissions insurance.
10(E) Information concerning workers’ compensation experience
11history and a worker safety program.
12(F) If the proposed design-build entity is a corporation, limited
13liability company,
partnership, joint venture, or other legal entity,
14a copy of the organizational documents or agreement committing
15to form the organization.
16(G) An acceptable safety record. A proposer’s safety record
17shall be deemed acceptable if its experience modification rate for
18the most recent three-year period is an average of 1.00 or less, and
19its average total recordable injury or illness rate and average lost
20work rate for the most recent three-year period does not exceed
21the applicable statistical standards for its business category or if
22the proposer is a party to an alternative dispute resolution system
23as provided for in Section 3201.5 of the Labor Code.
24(4) (A) The information required under this subdivision shall
25be certified under penalty of perjury by the
design-build entity and
26its general partners or joint venture members.
27(B) Information required under this subdivision that is not
28otherwise a public record under the California Public Records Act
29(Chapter 3.5 (commencing with Section 6250) of Division 7 of
30Title 1 of the Government Code) shall not be open to public
31inspection.
32(c) Based on the documents prepared as described in subdivision
33(a), the local agency shall prepare a request for proposals that
34invites prequalified or short-listed entities to submit competitive
35sealed proposals in the manner prescribed by the local agency.
36The request for proposals shall include, but need not be limited
37to, the following elements:
38(1) Identification of the basic scope and
needs of the project or
39contract, the estimated cost of the project, the methodology that
40will be used by the local agency to evaluate proposals, whether
P16 1the contract will be awarded on the basis of low bid or best value,
2and any other information deemed necessary by the local agency
3to inform interested parties of the contracting opportunity.
4(2) Significant factors that the local agency reasonably expects
5to consider in evaluating proposals, including, but not limited to,
6cost or price and all nonprice-related factors.
7(3) The relative importance or the weight assigned to each of
8the factors identified in the request for proposals.
9(4) Where a best value selection method is used, the local agency
10may reserve the
right to request proposal revisions and hold
11discussions and negotiations with responsive proposers, in which
12case the local agency shall so specify in the request for proposals
13and shall publish separately or incorporate into the request for
14proposals applicable procedures to be observed by the local agency
15to ensure that any discussions or negotiations are conducted in
16good faith.
17(d) For those projects utilizing low bid as the final selection
18method, the competitive bidding process shall result in lump-sum
19bids by the prequalified or short-listed design-build entities, and
20awards shall be made to the design-build entity that is the lowest
21responsible bidder.
22(e) For those projects utilizing best value as a selection method,
23the design-build competition shall progress as
follows:
24(1) Competitive proposals shall be evaluated by using only the
25criteria and selection procedures specifically identified in the
26request for proposals.
27(2) Pursuant to subdivision (c), the local agency may hold
28discussions or negotiations with responsive proposers using the
29process articulated in the local agency’s request for proposals.
30(3) When the evaluation is complete, the responsive proposers
31shall be ranked based on a determination of value provided,
32provided that no more than three proposers are required to be
33ranked.
34(4) The award of the contract shall be made to the responsible
35design-build entity whose proposal is determined by the local
36agency
to have offered the best value to the public.
37(5) Notwithstanding any other provision of this code, upon
38issuance of a contract award, the local agency shall publicly
39announce its award, identifying the design-build entity to which
P17 1the award is made, along with a written decision supporting its
2contract award and stating the basis of the award.
3(6) The written decision supporting the local agency’s contract
4award, described in paragraph (5), and the contract file shall
5provide sufficient information to satisfy an external audit.
(a) The design-build entity shall provide payment and
7performance bonds for the project in the form and in the amount
8required by the local agency, and issued by a California admitted
9surety. The amount of the payment bond shall not be less than the
10amount of the performance bond.
11(b) The design-build contract shall require errors and omissions
12insurance coverage for the design elements of the project.
13(c) The local agency shall develop a standard form of payment
14and performance bond for its design-build projects.
(a) The local agency, in each design-build request for
16proposals, may identify specific types of subcontractors that must
17be included in the design-build entity statement of qualifications
18and proposal. All construction subcontractors that are identified
19in the proposal shall be afforded all the protections of Chapter 4
20(commencing with Section 4100) of Part 1.
21(b) Following award of the design-build contract, the
22design-build entity shall proceed as follows in awarding
23construction subcontracts with a value exceeding one-half of 1
24percent of the contract price allocable to construction work:
25(1) Provide
public notice of availability of work to be
26subcontracted in accordance with the publication requirements
27applicable to the competitive bidding process of the local agency,
28including a fixed date and time on which qualifications statements,
29bids, or proposals will be due.
30(2) Establish reasonable qualification criteria and standards.
31(3) Award the subcontract either on a best value basis or to the
32lowest responsible bidder. The process may include prequalification
33or short-listing. The foregoing process does not apply to
34construction subcontractors listed in the original proposal.
35Subcontractors awarded construction subcontracts under this
36subdivision shall be afforded all the protections of Chapter 4
37(commencing with Section 4100) of Part 1.
(a) If the local agency elects to award a project pursuant
39to this article, retention proceeds withheld by the local agency
40from the design-build entity shall not exceed 5 percent if a
P18 1performance and payment bond, issued by an admitted surety
2insurer, is required in the solicitation of bids.
3(b) In a contract between the design-build entity and a
4subcontractor, and in a contract between a subcontractor and any
5subcontractor thereunder, the percentage of the retention proceeds
6withheld may not exceed the percentage specified in the contract
7between the local agency and the design-build entity. If the
8design-build entity provides written notice to any
subcontractor
9that is not a member of the design-build entity, prior to or at the
10time the bid is requested, that a bond may be required and the
11subcontractor subsequently is unable or refuses to furnish a bond
12to the design-build entity, then the design-build entity may withhold
13retention proceeds in excess of the percentage specified in the
14contract between the local agency and the design-build entity from
15any payment made by the design-build entity to the subcontractor.
Nothing in this article affects, expands, alters, or limits
17any rights or remedies otherwise available at law.
No reimbursement is required by this act pursuant to
19Section 6 of Article XIII B of the California Constitution because
20the only costs that may be incurred by a local agency or school
21district will be incurred because this act creates a new crime or
22infraction, eliminates a crime or infraction, or changes the penalty
23for a crime or infraction, within the meaning of Section 17556 of
24the Government Code, or changes the definition of a crime within
25the meaning of Section 6 of Article XIII B of the California
26Constitution.
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