BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 1347 (Chiu) - Public contracts: claims ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: August 17, 2015 |Policy Vote: JUD. 7 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 24, 2015 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: AB 1347 would establish a claims resolution process for public works contracts entered into on or after January 1, 2016, by which a general contractor may seek public agency review of the claim. Fiscal Impact: Major ongoing costs potentially in the millions of dollars (General Fund) to numerous state agencies engaged in significant public works contracts for claims review and resolution, which will result in additional administrative costs to review, evaluate, and respond to claims within 45 days, and for mandated mediation. State agencies are currently not subject to any statutory timelines for claims review and resolution, and unresolved claims are subject to arbitration. Caltrans, which has over 600 ongoing contracts valued at over AB 1347 (Chiu) Page 1 of ? $10 billion, expects it would need additional personnel at an annual cost of approximately $11.5 million. Other agencies that would be significantly impacted include but are not limited to the Departments of General Services, Department of Water Resources, the Department of Corrections and Rehabilitation , the University of California, and the California State University. Potentially major ongoing state-reimbursable costs in the millions of dollars (General Fund) to local agencies engaged in public works projects to the extent this new process results in higher administrative costs, including any increase in administrative costs incurred under the existing process for resolution of claims under $375,000. Additional costs to state and local agencies for additional interest costs accrued on late payments under the timelines prescribed in this bill. Background: Existing law prescribes various requirements regarding the formation, content, and enforcement of state and local public contracts. Existing law applicable to state public contracts generally requires that the resolution of claims related to those contracts be subject to arbitration. Existing law for local agency public works requires all claims made for work arising out of the contract, but not expressly provided for in that contract, that are $375,000 or less to first be resolved through administrative resolution procedures. However, if the contract provides for arbitration, the claim will have to be arbitrated according to express arbitration statutes. The arbitration statutes apply to both local agency and state agency public work contracts. This bill prescribes a new claims resolution process by which a contractor can submit a claim to a public entity. Proposed Law: This bill would establish a claims resolution process for public works contracts entered into on or after January 1, 2016, as follows: Precludes any other claim resolution provision and applies to all claims by contractors in connection with public works. AB 1347 (Chiu) Page 2 of ? Provides the following definitions: o "Claim" means a separate demand by the contractor sent by registered or certified mail for one or more of the following: (a) a time extension, including, without limitation, for relief from damages or penalties for delay assessed by a public entity under a public works contract; (b) payment by the public entity 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 (c) payment of an amount that is disputed by the public entity; o "Contractor" means any type of contractor subject to the Contractor's State License Law who has entered into a direct contract with a public entity for public works; o "Public entity" means, without limitation, a state agency, department, office, division, bureau, board, or commission, the California State University, the University of California, a city, including a charter city, county, including a charter county, city and county, including a charter city and county, district, special district, public authority, political subdivision, public corporation, or nonprofit transit corporation wholly owned by a public agency and formed to carry out the purposes of the public agency; o "Public work" means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind; o "Subcontractor" means any type of contractor subject to the Contractor's State License Law who either is in direct contract with a contractor or is a lower tier subcontractor. Upon receipt of a claim sent by registered mail, requires a public entity to which the claim applies to conduct a reasonable review of the claim and, within a period not to exceed 45 days, provide the claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. Authorizes a public entity and a contractor to, by mutual agreement, extend the 45-day time AB 1347 (Chiu) Page 3 of ? period. If the public entity needs approval from its governing body to provide the claimant the written statement, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a claim sent by registered mail, provides the public agency up to three days following the next duly publicly noticed meeting of the governing body to provide the claimant a written statement identifying the disputed portion and the undisputed portion. Requires any payment due on an undisputed portion of the claim to be processed and made within 60 days after the public entity issues its written statement; if the public entity fails to issue a written statement, the claim would be deemed rejected in its entirety. If the claimant disputes the public entity's written response, or if the public entity fails to respond to a claim issued within the time prescribed, authorizes the claimant to demand in writing an informal conference to meet and confer for settlement of the issues in dispute, and, upon receipt of a demand in writing sent by registered or certified mail, the public entity would be required to schedule a meet and confer conference within 30 days for settlement of the dispute. Within 10 business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, requires the public entity to provide the claimant a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Requires any payment due on an undisputed portion of the claim to be processed and made within 60 days after the public entity issues its written statement, and any disputed portion of the claim, as identified by the contractor in writing, would be required to be submitted to nonbinding mediation, with the public entity and the claimant sharing the associated costs equally. Requires the public entity and claimant to mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing, and, if the parties cannot agree upon a mediator, each party would select a mediator and those mediators would select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Requires each party to bear the fees and costs charged by its respective mediator, as specified. If mediation is AB 1347 (Chiu) Page 4 of ? unsuccessful, requires the parts of the claim remaining in dispute to be subject to other applicable claim resolution procedures. Unless otherwise agreed to by the public entity and the contractor in writing, requires the mediation conducted pursuant to this bill to excuse any further obligation to mediate after litigation has been commenced. Does not preclude a public entity from requiring arbitration of disputes under private arbitration or the Public Works Contract Arbitration Program, if mediation does not resolve the parties' dispute. Specifies that failure by the public entity to respond to a claim from a contractor within the time periods described would result in the claim being deemed rejected in its entirety. Provides that a claim denied by reason of a public entity's failure to have responded to a claim, or its failure to otherwise meet the time requirements shall not constitute an adverse finding with regard to the merits of the claim or the responsibility or qualifications of the claimant. Requires amounts not paid in a timely manner to bear interest at 7 percent per annum. If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim against a public entity because privity of contract does not exist, authorizes the contractor to present to the public entity a claim on behalf of a subcontractor or lower tier subcontractor. Authorizes a subcontractor to request in writing, either on his or her own behalf or on behalf of a lower tier subcontractor, that the contractor present a claim for work which was performed by the subcontractor or by a lower tier subcontractor on behalf of the subcontractor. Requires the subcontractor requesting that the claim be presented to the public entity to furnish reasonable documentation to support the claim. Within 45 days of receipt of that written request, requires the contractor to notify the subcontractor in writing as to whether the contractor presented the claim to the public entity and, if the original contractor did not present the claim, provide the subcontractor with a statement of the reasons for not having done so. Requires the text of the provisions provided under this bill or a summary of it to be set forth in the plans or specifications for any public works that may give rise to a claim under this bill. AB 1347 (Chiu) Page 5 of ? Makes a waiver of the rights granted by this bill void and contrary to public policy, subject to specified conditions. Provides that nothing in this bill shall impose a liability upon a public entity that makes loans or grants available through a competitive application process, for the failure of the awardee to meet its contractual obligations. Related Legislation: AB 2471 (Frazier) 2014 would have required state and local public entities engaged in a public works contract awarded to the lowest bidder to promptly issue change orders when extra work was required of the contractor or subcontractor. This bill stalled in this Committee without a hearing. AB 2096 (Miller) 2010 would have allowed a public agency and a contractor to mutually agree to resolve a claim through independent arbitration. This bill failed passage in the Assembly Committee on Judiciary. Staff Comments: Caltrans has indicated the provisions of this bill could result in significantly increased personnel costs for evaluation, response, coordination, and oversight activities related to submitted claims requiring action within the prescribed timeframes of this measure. In addition to one-time costs of approximately $450,000 to rewrite specifications, policy, construction and oversight manuals, forms, and provide training, ongoing resource needs of approximately $11.5 million are estimated to address the workload involved with submitted claims. This estimate includes the costs associated with an increase in oversight support costs for Caltrans on projects performed by local agencies on Caltrans right of way. This bill requires that the "associated cost" of the mediation to be shared equally between the public entity and the claimant. Caltrans notes, however, that these costs are not limited as they are in the current Caltrans Standard Specifications. The current Caltrans specifications also specifically preclude each party's preparation and participation costs from the shared AB 1347 (Chiu) Page 6 of ? costs. As the associated costs are not so defined under the provisions of this bill, Caltrans could potentially be required to pay for half of the costs of the contractor's legal staff to prepare a case against Caltrans. By requiring local agencies to adhere to the claims resolution process specified in this measure, this bill creates a state-mandated local program, potentially resulting in major ongoing state-reimbursable costs in excess of millions of dollars (General Fund) annually to local agencies engaged in public works projects. While the magnitude of costs to local agencies cannot be estimated with certainty, given the volume of local public works projects and claims subject to this resolution process, costs are likely substantial. -- END --