BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          AB 1347 (Chiu) - Public contracts:  claims
          
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          |Version: August 17, 2015        |Policy Vote: JUD. 7 - 0         |
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          |Urgency: No                     |Mandate: Yes                    |
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          |Hearing Date: August 24, 2015   |Consultant: Jolie Onodera       |
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          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  







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            $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. 








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           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  








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            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  








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            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.








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           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  








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          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.




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