BILL ANALYSIS                                                                                                                                                                                                    Ó



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          ASSEMBLY THIRD READING


          AB  
          1347 (Chiu)


          As Amended  June 1, 2015


          Majority vote


           ------------------------------------------------------------------- 
          |Committee       |Votes |Ayes                 |Noes                 |
          |                |      |                     |                     |
          |                |      |                     |                     |
          |----------------+------+---------------------+---------------------|
          |Accountability  |9-0   |Salas, Lackey,       |                     |
          |                |      |Brough, Burke,       |                     |
          |                |      |Frazier, Beth        |                     |
          |                |      |Gaines, Irwin,       |                     |
          |                |      |Medina, Rodriguez    |                     |
          |                |      |                     |                     |
          |----------------+------+---------------------+---------------------|
          |Appropriations  |15-2  |Gomez, Bonta,        |Bigelow, Gallagher   |
          |                |      |Calderon, Chang,     |                     |
          |                |      |Daly, Eggman,        |                     |
          |                |      |Eduardo Garcia,      |                     |
          |                |      |Gordon, Holden,      |                     |
          |                |      |Jones, Quirk,        |                     |
          |                |      |Rendon, Wagner,      |                     |
          |                |      |Weber, Wood          |                     |
          |                |      |                     |                     |
          |                |      |                     |                     |
           ------------------------------------------------------------------- 


          SUMMARY:  Establishes a claim resolution process for public works  








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          contracts when contractors and public entities are in dispute.   
          Specifically, this bill:  


          1)Establishes that provisions of this bill supersede other code  
            sections related to local and state contracting disputes.


          2)Defines what constitutes a claim.


          3)Specifies that the claimant shall provide reasonable  
            documentation to support the claim.  


          4)Requires a public agency to respond with a written statement to  
            a claim within 30 days following receipt that identifies which  
            parts of the claim are disputed and undisputed.


          5)Creates an exception to the 30-day timeframe if a governing  
            board does not meet during that time.


          6)Requires payment of the undisputed portion within 30 days after  
            the public entity's issuance of the written statement.


          7)Deems that the claim is considered rejected in its entirety if  
            the public entity does not respond by the specified timeframe to  
            the claim with a determination of disputed and undisputed  
            amounts.


          8)Allows the claimant to demand an informal conference to meet and  
            confer to settle issues in dispute if the claimant disputes the  
            public entity's written response or if the public entity does  
            not respond to the claim within the specified timeframe.









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          9)Establishes a non-binding mediation process if agreements are  
            not reached in the meet and confer conference.


          10)Subjects public entities to interest payments for late  
            payments.


          11)Allows contractors to file claims on behalf of subcontractors.   
              





          EXISTING LAW: 


          1)Sets a resolution process for disputes between contractors and  
            state entities for public works contracts that relies primarily  
            on arbitration.


          2)Sets a separate resolution process for disputes between  
            contractors and local entities for public works contracts for  
            claims of $375,000 or less. 


          FISCAL EFFECT:  According to the Assembly Appropriation Committee:


          1)State agencies are currently not subject to any statutory  
            timelines for claims review and resolution, thus it is unclear  
            to what extent the bill's procedures are more stringent than  
            agencies current practices.  Caltrans, which has 600 ongoing  
            contracts valued at over $10 billion, expects it would need  
            several dozen more personnel at an annual cost exceeding $10  
            million.  It is unclear to what extent the most recent  








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            amendments would reduce these costs.  Other agencies that could  
            experience similar impacts are the Departments of General  
            Services, Water Resources, and Corrections and Rehabilitation,  
            the University of California, and the California State  
            University. 


          2)For local governments, current law provides a process, including  
            timelines, for claims resolution for claims under $375,000 - a  
            threshold first established in 1990.  (This bill does not amend  
            this process, but establishes a different process applying to  
            all state and local public works and to claims regardless of the  
            amount.)  To the extent this new process results in higher  
            administrative cost, these costs would be state reimbursable. 


          3)State and local agencies could also incur additional associated  
            contract costs and higher interest costs on late payments.


          COMMENTS:  This bill creates a claim resolution process for public  
          works contracts when contractors and public entities are in  
          dispute.  It applies to both state and local public entities and  
          specifies that the new section added by this bill takes precedence  
          over the current resolution of claims processes described in  
          Public Contract Code Sections 10240 to 10240.13 and 20100 to  
          20929.


          This bill defines a claim as one or more of the following: a time  
          extension, including, without limitation, for relief from damages  
          or penalties for delay; payment of money or damages arising from  
          work done by, or on behalf of, the contractor pursuant to the  
          contract for a public work and payment for which is not otherwise  
          expressly provided or to which the claimant is not otherwise  
          entitled; or payment of an amount that is disputed by the public  
          entity.










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          The author explains that this bill is meant to ensure contractors  
          are paid in a timely manner for work, which is not specified in  
          the original contract, but becomes necessary to complete a public  
          works project.


          According to the author, this bill "addresses the indefinite delay  
          of payment to California's public works contractors for extra work  
          performed.  There is a loophole in current prompt payment law when  
          it comes to resolving disputes in the claims process."  The author  
          states that some contractors have to wait months or even years  
          until they are paid.


          This bill allows contractors to submit claims to public entities  
          and requires an entity to respond within 30 days following receipt  
          with a written statement identifying which parts of the claim are  
          disputed and undisputed.  This bill extends the 30-day timeframe  
          if the public entity needs approval from its governing board and  
          the board does not meet within the 30 days following receipt of  
          the claim.  In such a case, the response would instead be due  
          three days after the next publicly noticed meeting of the  
          governing body.


          For amounts determined to be undisputed, this bill would require  
          the public entity to pay the contractor within 30 days after the  
          public entity's issuance of the written statement.  If the entity  
          does not reply within 30 days or the extended time provided due to  
          governing body meeting dates, the entire claim is deemed rejected.  



          If a claimant disputes the public entity's written response or if  
          the public entity fails to respond in the specified timeframe, the  
          claimant can demand in writing an informal conference to meet and  
          confer in order to resolve the issues in dispute.  After receiving  
          the demand through registered mail, the public entity must  
          schedule a meet and confer conference within 30 days.








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          If the entire claim is not resolved during the meet and confer  
          conference, this bill establishes a non-binding mediation process.  
           Within five days of the conclusion of the meet and confer  
          conference, a public entity must provide the claimant a written  
          statement identifying the disputed and undisputed portions of the  
          claim.  Undisputed portions must be paid within 30 days after the  
          statement is issued.


          Disputed portions are submitted to nonbinding mediation in which  
          the claimant and public entity split the mediation costs equally.   
          The claimant and public entity must agree to a mediator within 10  
          days after the disputed portion of the claim has been identified  
          in writing.  If both sides cannot agree on a mediator, they are  
          each required to choose a mediator and those mediators decide on a  
          neutral third party to mediate the disputed portion of the claim.   



          If an agreement cannot be reached in mediation, other procedures  
          already set forth in existing law would apply.  


          This bill specifies that amounts not paid in a timely manner would  
          accrue interest at the rate at 7% per year.


          In addition to allowing contractors to submit claims, this bill  
          lets contractors submit claims on behalf of a subcontractor.   
          Within 45 days of receiving the claim from a subcontractor, the  
          contractor must notify the subcontractor in writing as to whether  
          or not the contractor presented the claim to the public entity.   
          If the claim was not presented, the contractor must provide the  
          subcontractor with a statement explaining why the claim was not  
          submitted.  










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          Analysis Prepared by:                                               
                          Scott Herbstman / A. & A.R. / (916) 319-3600  FN:  
          0000790