BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                       AB 552


                                                                      Page  1





          ASSEMBLY THIRD READING


          AB  
          552 (O'Donnell)


          As Amended  April 27, 2015


          Majority vote


           ------------------------------------------------------------------- 
          |Committee       |Votes |Ayes                 |Noes                 |
          |                |      |                     |                     |
          |                |      |                     |                     |
          |----------------+------+---------------------+---------------------|
          |Accountability  |9-0   |Salas, Lackey,       |                     |
          |                |      |Brough, Burke,       |                     |
          |                |      |Frazier, Beth        |                     |
          |                |      |Gaines, Irwin,       |                     |
          |                |      |Medina, Rodriguez    |                     |
          |                |      |                     |                     |
          |----------------+------+---------------------+---------------------|
          |Judiciary       |10-0  |Mark Stone, Wagner,  |                     |
          |                |      |Alejo, Chau, Chiu,   |                     |
          |                |      |Gallagher, Cristina  |                     |
          |                |      |Garcia, Holden,      |                     |
          |                |      |Maienschein,         |                     |
          |                |      |O'Donnell            |                     |
          |                |      |                     |                     |
          |----------------+------+---------------------+---------------------|
          |Appropriations  |17-0  |Gomez, Bigelow,      |                     |
          |                |      |Bloom, Bonta,        |                     |
          |                |      |Calderon, Chang,     |                     |
          |                |      |Daly, Eggman,        |                     |
          |                |      |Gallagher, Eduardo   |                     |
          |                |      |Garcia, Holden,      |                     |








                                                                       AB 552


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          |                |      |Jones, Quirk,        |                     |
          |                |      |Rendon, Wagner,      |                     |
          |                |      |Weber, Wood          |                     |
          |                |      |                     |                     |
          |                |      |                     |                     |
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          SUMMARY:  Provides that if a public contract contains a  
          consequential damages (CDs) clause it must specify a set amount.   
          Specifically, this bill:  
          1)Provides that a public works contract entered into on or after  
            January 1, 2016, that contains a clause requiring a contractor  
            to be responsible for CDs, is not enforceable unless the CDs  
            have been liquidated to a set amount and identified in the  
            public works contract. 
          2)Defines "public agency" for purposes of the above to include the  
            state, Regents of the University of California, a city, charter  
            city, county, charter county, district, public authority,  
            municipal utility, and any other political subdivision or public  
            corporation of the state.


          3)Makes findings and declarations relating to the need for clear  
            and uniform guidelines relating to liquidated damages in public  
            contracts. 


          EXISTING LAW provides for liquidated damages to be generally  
          included in a public works contract.  Existing law does not  
          prohibit a public agency from including unspecified CDs resulting  
          from a delay of a nonperforming party.


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee, no likely state fiscal impact, as it appears CDs  
          clauses are not used in state contracts.










                                                                       AB 552


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          COMMENTS:  When a public agency enters into a contract for a  
          public works project with a contractor, the agency generally  
          includes provisions for charging the contractor for damages due to  
          delays or nonperformance of the contract.  These liquidated  
          damages are specified within the contract and agreed to upon  
          signing of the contract. 


          According to the author, an unknown but apparently small number of  
          public agencies (there are over 2,000 cities, counties and special  
          districts across the state) have begun to include unanticipated  
          and unspecified CDs in public works contracts.  These damages are  
          determined after the fact considering available evidence. 


          Specifically, the author states that the City and County of San  
          Francisco, the San Francisco Public Utilities Commission, the San  
          Francisco Metropolitan Transportation Agency, and the Los Angeles  
          World Airports, among others, have attempted to create contracts  
          that include undefined CDs for project delay in the terms and  
          conditions that contractors must accept.  While some of these  
          organizations have since reversed their decision to include these  
          provisions in their contracts due to difficulty finding  
          contractors willing to agree, others have not.


          Contractors argue that having a measurable penalty is extremely  
          important for insurers providing surety bonds for projects.   
          Contractors will generally pay periodic premiums to a surety  
          company in exchange for providing a guarantee to anyone hiring the  
          contractor that the surety company will pay if the contractor  
          fails to meet their contractual obligations.  In order to properly  
          provide this guarantee in the form of a surety bond, the surety  
          company must assess the risk involved in any given contract based  
          on a number of factors, including the track record of the  
          contractor, the premium they receive for their service, and the  
          damages they might incur if the contractor fails. 










                                                                       AB 552


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          This bill, as amended, would simply provide that if a public  
          contract contains a clause making the contractor liable for CDs,  
          the amount cannot be open-ended.  This bill would not prevent a  
          public agency from seeking CDs, nor would it require a public  
          agency to include a CD clause in its contract.  Rather, this bill  
          provides that if the public agency opts to include a CD clause in  
          the contract, then CDs must be liquidated at a set amount and  
          identified in the contract.


          Analysis Prepared by:                        William Herms / A. &  
          A.R. / (916) 319-3600                          FN: 0000303