BILL NUMBER: SB 1433 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Hill
FEBRUARY 21, 2014
An act to amend Sections 20209.5, 20209.7, and 20209.11 of, and to
repeal Sections 20209.12 and 20209.14 of, the Public Contract Code,
relating to transit contracts, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
SB 1433, as introduced, Hill. Local Agency Public Construction
Act: transit design-build contracts.
Existing law authorizes a transit operator to enter into a
design-build contract, as specified. Existing law defines a "transit
operator" as a transit district, included transit district, municipal
operator, included municipal operator, or transit development board,
a consolidated agency, or any joint powers authority formed to
provide transit service. Existing law establishes conditions for the
selection of the design-build entity relating to the dollar amounts
of the contracts. Existing law requires a transit operator, as
defined, awarding a contract for a public works project pursuant to
these provisions, to reimburse the Department of Industrial Relations
for costs of performing prevailing wage monitoring and enforcement
of the public works project and would require moneys collected to be
deposited into the State Public Works Enforcement Fund, a
continuously appropriated fund. Existing law repeals these provisions
on January 1, 2015.
This bill would include in the definition of "transit operator"
any other local or regional agency responsible for the construction
of transit projects, thereby extending the design-build procurement
authorization. The bill would eliminate the requirement that the
project cost exceed a specified amount. The bill would delete the
repeal date, thus extending the operation of these provisions
indefinitely.
The bill, by extending the design-build procurement authorization
and by extending the deposit of moneys into the State Public Works
Enforcement Fund, a continuously appropriated fund, would make an
appropriation.
The bill, by extending the design-build procurement authorization,
would impose the statement of qualifications requirement upon
transit operators, subject to penalty of perjury, thereby creating a
new crime and imposing 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: yes. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 20209.5 of the Public Contract Code is amended
to read:
20209.5. As used in this article, the following terms have the
following meanings:
(a) "Best value" means a value determined by objective criteria
and may include, but is not limited to, price, features, functions,
life-cycle costs, and other criteria deemed appropriate by the
transit district.
(b) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(c) "Design-build entity" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting, architectural, and engineering services as needed
pursuant to a design-build contract.
(d) "RFP" means request for proposal.
(e) "Transit operator" means any transit district, included
transit district, municipal operator, included municipal operator,
or transit development board, as defined
in Section 99210 of the Public Utilities Code, or a
consolidated agency as defined described
in Section 132353.1 of the Public Utilities Code, or
any joint powers authority formed to provide transit
service , or any other local or regional agency
responsible for the construction of transit projects, including, but
not limited to, a county transportation commission created by Section
130050 of the Public Utilities Code .
SEC. 2. Section 20209.7 of the Public Contract Code is amended to
read:
20209.7. Design-build projects shall progress in a three-step
process, as follows:
(a) The transit operator shall prepare a set of documents setting
forth the scope of the project. The documents shall include, but are
not limited to, the size, type, and desired design character of the
buildings, transit facilities, 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 transit operator's needs.
The performance specifications and any plans shall be prepared by a
design professional duly licensed or registered in California.
(b) Any architectural or engineering firm or individual retained
by the transit operator to assist in the development criteria or
preparation of the request for proposal (RFP) is not eligible to
participate in the competition for the design-build entity.
(c) (1) For contracts for public works projects awarded prior to
the effective date of the regulations adopted by the Department of
Industrial Relations pursuant to subdivision (g) of Section 1771.5 of
the Labor Code, the transit operator shall establish and enforce a
labor compliance program containing the requirements outlined in
Section 1771.5 of the Labor Code or shall contract with a third party
to operate this labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code. This requirement shall
not apply to projects where the transit operator or the design-build
entity has entered into a collective bargaining agreement that binds
all of the contractors performing work on the project, or to any
other project of the transit operator that is not design-build.
(2) For contracts for public works projects awarded on or after
the effective date of the regulations adopted by the Department of
Industrial Relations pursuant to subdivision (g) of Section 1771.5 of
the Labor Code, the transit operator shall reimburse the department
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. 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.
(3) In lieu of reimbursing the Department of Industrial Relations
for its reasonable and directly related costs of performing
monitoring and enforcement on public works projects, the transit
operator may elect to continue operating an existing previously
approved labor compliance program to monitor and enforce prevailing
wage requirements on the project if it has either not contracted with
a third party to conduct its labor compliance program and requests
and receives approval from the department to continue its existing
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.
(d) (1) Each RFP shall identify the basic scope and needs of the
project or contract, the expected cost range, and other information
deemed necessary by the contracting agency to inform interested
parties of the contracting opportunity.
(2) Each RFP shall invite interested parties to submit competitive
sealed proposals in the manner prescribed by the contracting agency.
(3) Each RFP shall include a section identifying and describing:
(A) All significant factors that the agency reasonably expects to
consider in evaluating proposals, including cost or price and all
nonprice-related factors.
(B) The methodology and rating or weighting process that will be
used by the agency in evaluating competitive proposals and
specifically whether proposals will be rated according to numeric or
qualitative values.
(C) The relative importance or weight assigned to each of the
factors identified in the RFP. If a nonweighted system is used, the
agency 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.
(D) If the contracting agency wishes to reserve the right to hold
discussions or negotiations with offerors, it shall specify the same
in the RFP and shall publish separately or incorporate into the RFP
applicable rules and procedures to be observed by the agency to
ensure that any discussions or negotiations are conducted in a fair
and impartial manner.
(e) (1) The transit operator shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the Director of Industrial Relations. The standardized
questionnaire shall not require prospective bidders to disclose any
violations of Chapter 1 (commencing with Section 1720) of Part 7 of
Division 2 of the Labor Code committed prior to January 1, 1998, if
the violation was based on a subcontractor's failure to comply with
these provisions and the bidder had no knowledge of the subcontractor'
s violations and the bidder complied with the conditions set forth in
subdivision (b) of Section 1775 of the Labor Code. In preparing the
questionnaire, the director shall consult with the construction
industry, building trades, transit operators, and other affected
parties. This questionnaire shall require information relevant to the
architecture or engineering firm that will be the lead on the
design-build project. The questionnaire shall include, but is not
limited to, all of the following:
(A) A listing of all the contractors that are part of the
design-build entity.
(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, registrations, 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 assures the transit operator 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, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code or the
federal Occupational Safety and Health Act of 1970 (Public Law
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. 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.
(G) Any instance where the entity, its owner, officers, or
managing employees defaulted on a construction contract.
(H) Any 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.
(I) Information concerning the bankruptcy or receivership of any
member of the entity, and information concerning all legal claims,
disputes, or lawsuits arising from any construction project of any
member of the entity during the past three years, including
information concerning any work completed by a surety.
(J) 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.
(K) Information concerning all settled adverse claims, disputes,
or lawsuits between the owner of a public works project and any
member of the design-build entity during the five-year period
immediately preceding submission of a 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 and specifying that all partners or association members
agree to be liable for full performance under the design-build
contract.
(2) The information required pursuant to this subdivision shall be
verified under oath by the 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.
(f) The transit operator shall establish a procedure for final
selection of the design-build entity. Selection shall be
subject to the following conditions:
(1) In no case shall the transit operator award a contract to a
design-build entity pursuant to this article for a capital
maintenance or capacity-enhancing rail project unless that project
exceeds twenty-five million dollars ($25,000,000) in cost.
(2) For nonrail transit projects that exceed two million five
hundred thousand dollars ($2,500,000), the transit operator may award
the project to the lowest responsible bidder or by using the best
value method.
(3) For the acquisition and installation of technology
applications or surveillance equipment designed to enhance safety,
disaster preparedness, and homeland security efforts, there shall be
no cost threshold and the transit operator may award the contract to
the lowest responsible bidder or by using the best value method.
(g) Except as provided in this section, nothing in this act shall
be construed to affect the application of any other law.
SEC. 3. Section 20209.11 of the Public Contract Code is amended to
read:
20209.11. (a) The minimum
performance criteria and design standards established pursuant to
this article by a transit operator for quality, durability,
longevity, life-cycle costs, and other criteria deemed appropriate by
the transit operator shall be adhered to by the design-build entity.
Any deviations from those standards may only be allowed by written
consent of the transit operator. The transit operator may retain the
services of a design professional through the course of the project
in order to ensure compliance with this article.
(b) The total price of the project shall be subject to the
conditions established in subdivision (f) of Section 20209.7.
SEC. 4. Section 20209.12 of the Public Contract Code is repealed.
20209.12. Each transit operator that elects to proceed under this
article and use the design-build method on a public works project
shall prepare and deliver to the Legislative Analyst's Office within
120 days of the design-build project being put into operation or by
December 1, 2015, whichever occurs first, a report containing a
description of each public works project financed with public funds,
procured through the design-build process, and completed on or before
November 1, 2015. However, if a project has been commenced, but not
completed on or before November 1, 2015, the transit operator shall
complete a report no later than 120 days after completion of the
project. The report shall include, but not be limited to, all of the
following information:
(a) The type of facility.
(b) The gross square footage of the facility.
(c) The company or contractor who was awarded the project.
(d) The estimated and actual length of time to complete the
project.
(e) The findings established pursuant to Section 20133.
(f) Any Labor Code violations discovered during the course of
construction or following completion of the project, as well as any
fines or penalties assessed.
(g) The estimated and actual project cost.
(h) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the design-build
project, including the resolution of the protest.
(i) An assessment of the prequalification process and criteria.
(j) An assessment of the impact of retaining 5 percent retention
on the project.
(k) A description of the labor force compliance program and an
assessment of the project impact, where required.
( l ) A description of the method used to
award the contract. If best value was the method, the factors used to
evaluate the bid shall be described, including the weighting of each
factor and an assessment of the effectiveness of the methodology.
(m) An assessment of the project impact of "skilled labor force
availability."
(n) An assessment of the design-build dollar limits on transit
projects. This shall include projects where the transit operator
wanted to use design-build and was precluded by the dollar
limitation. It shall also include projects where the best value
method of awarding contracts was not used, due to dollar limitations.
(o) An assessment of the most appropriate uses for the
design-build approach.
(p) Any transit operator that elects not to use the authority
granted may also submit a report to the entities named in accordance
with the schedule in this section. This report may include an
analysis of why the authority granted was not used by the operator.
SEC. 5. Section 20209.14 of the Public Contract Code is repealed.
20209.14. This article shall remain in effect only until January
1, 2015, and as of that date is repealed.
SEC. 6. 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.