BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      AB 1358


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          ASSEMBLY THIRD READING


          AB  
          1358 (Dababneh)


          As Introduced  February 27, 2015


          Majority vote


           ----------------------------------------------------------------- 
          |Committee       |Votes |Ayes                |Noes                |
          |                |      |                    |                    |
          |                |      |                    |                    |
          |----------------+------+--------------------+--------------------|
          |Education       |5-2   |O'Donnell, McCarty, |Chávez, Kim         |
          |                |      |Santiago, Thurmond, |                    |
          |                |      |Weber               |                    |
          |                |      |                    |                    |
          |----------------+------+--------------------+--------------------|
          |Appropriations  |12-5  |Gomez, Bloom,       |Bigelow, Chang,     |
          |                |      |Bonta, Calderon,    |Gallagher, Jones,   |
          |                |      |Daly, Eggman,       |Wagner              |
          |                |      |Eduardo Garcia,     |                    |
          |                |      |Holden, Quirk,      |                    |
          |                |      |Rendon, Weber, Wood |                    |
          |                |      |                    |                    |
          |                |      |                    |                    |
           ----------------------------------------------------------------- 


          SUMMARY:  Aligns the process for school districts awarding  
          contracts through the design-build method with the process  
          established for state and local agencies.  Specifically, this  
          bill:  









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          1)Repeals the existing provisions authorizing and governing the  
            design-build procurement process for school districts.  


          2)Authorizes a school district, with approval of its governing  
            board, to procure design-build contracts for school construction  
            projects in excess of $1 million, and award the contract through  
            the low bid or the best value method.  


          Definitions:


          3)Establishes the following definitions:


             a)   "Best value" means a value determined by evaluation of  
               objective criteria that may include, but are not limited to,  
               price, features, functions, life-cycle costs, experience, and  
               past performance.  A best value determination may involve the  
               selection of the lowest cost proposal meeting the interests  
               of the school district and the objectives of the project,  
               selection of the best proposal for a stipulated sum  
               established by the procuring school district, or a tradeoff  
               between price and other factors.


             b)   "Construction subcontract" means a subcontract awarded by  
               the design-build entity to a subcontractor that will perform  
               work or labor or will render service to the design-build  
               entity in or about the construction of the work or  
               improvement, or a subcontractor licensed by the state which,  
               under subcontract to the design-build entity, specially  
               fabricates and installs a portion of the work or improvement  
               according to detailed drawings contained in the plans and  
               specifications produced by the design-build team.










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             c)   "Design-build" means a project delivery process in which  
               both the design and construction of a project are procured  
               from a single entity.


             d)   "Design-build entity" means a corporation, limited  
               liability company, partnership, joint venture, or other legal  
               entity that is able to provide appropriately licensed  
               contracting, architectural, and engineering services, as  
               needed, pursuant to a design-build contract.


             e)   "Design-build team" means the design-build entity and the  
               individuals or other entities identified by the design-build  
               entity as members of its team.  Members shall include the  
               general contractor and, if utilized in the design of the  
               project, all electrical, mechanical, and plumbing  
               contractors.


             f)   "Project" means the construction of any school facility.


          Guidelines and Documents:


          4)Requires the school district to develop guidelines for a  
            standard organizational conflict-of-interest policy, consistent  
            with applicable law, regarding the ability of a person or entity  
            that performs services for the school district relating to the  
            solicitation of a design-build project, to submit a proposal as  
            a design-build entity, or to join a design-build team.


          5)Requires the school district to prepare a set of documents  
            setting forth the scope and estimated price of the project.  The  
            documents may include, but are not limited to, the size, type,  
            and desired design character of the project, performance  
            specifications covering the quality of materials, equipment,  








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            workmanship, preliminary plans or building layouts, or any other  
            information deemed necessary to describe adequately the school  
            district's needs.  The performance specifications and any plans  
            shall be prepared by a design professional who is duly licensed  
            and registered in California.


             a)   Prohibits the documents from including a  
               design-build-operate contract for a project.  The documents,  
               however, may include operations during a training or  
               transition period, but shall not include long-term operations  
               for a project.


          Prequalification:


          6)Requires the school district to prepare and issue a request for  
            qualifications in order to prequalify, or develop a short-list  
            of, the design-build entities whose proposals shall be evaluated  
            for final selection.  The request for qualifications shall  
            include, but not be limited to, the following:  


             a)   Identification of the basic scope and needs of the project  
               or contract, the expected cost range, the methodology that  
               will be used by the school district to evaluate proposals,  
               the procedure for final selection of the design-build entity,  
               and any other information deemed necessary by the school  
               district to inform interested parties of the contracting  
               opportunity.


             b)   Significant factors that the school district reasonably  
               expects to consider in evaluating qualifications, including  
               technical design and construction expertise, acceptable  
               safety record, and all other nonprice-related factors.










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             c)   A standard template request for statements of  
               qualifications prepared by the school district. In preparing  
               the standard template, the school district may consult with  
               the construction industry, the building trades and surety  
               industry, and other school districts interested in using the  
               authorization provided by this bill.  The template shall  
               require the following information:  1) a listing of all  
               shareholders, partners, including, a copy of the  
               organizational documents or agreement committing to form the  
               organization; 2) evidence of ability to complete the project  
               of similar size, scope or complexity; 3) licenses, bonds and  
               insurance; 4) information regarding workers' compensation  
               history and worker safety program; and, 5) an acceptable  
               safety record, as specified.  


               i)     Requires all information to be verified under oath.


               ii)    Specifies that information required that is not  
                 otherwise a public record under the California Public  
                 Records Act shall not be open to public inspection.


          7)Specifies that a design-build entity shall not be prequalified  
            or shortlisted unless the entity provides an enforceable  
            commitment to the school district that the entity and its  
            subcontractors at every tier will use a skilled and trained  
            workforce to perform all work on the project or contract that  
            falls within an apprenticeable occupation in the building and  
            construction trades.  


             a)   Defines "apprenticeable occupation" as an occupation for  
               which the Chief of the Division of Apprenticeship Standards  
               (DAS) of the Department of Industrial Relations had approved  
               an apprenticeship program before January 1, 2014.










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             b)   Defines "skilled and trained workforce" as a workforce  
               that meets all of the following conditions:


               i)     All workers are either skilled journeypersons or  
                 apprentices registered in an apprenticeship program  
                 approved by the Chief of the DAS.


               ii)    Individuals and subcontractors at every tier employed  
                 to perform work on the contract or project are comprised of  
                 skilled journeypersons that are graduates of an  
                 apprenticeship program approved by the Chief of the DAS or  
                 located outside California and approved for federal  
                 purposes pursuant to the apprenticeship regulations adopted  
                 by the federal Secretary of Labor, meeting the specified  
                 percentages and timeline:


                  (1)       At least 20% by January 1, 2016.


                  (2)       At least 30% by January 1, 2017.


                  (3)       At least 40% by January 1, 2018.


                  (4)       At least 50% by January 1, 2019.


                  (5)       At least 60% by January 1, 2020.


               iii)   Specifies that for an apprenticeable occupation in  
                 which no apprenticeship program had been approved by the  
                 Chief of DAS before January 1, 1995, up to one-half of the  
                 graduation percentage requirements may be satisfied by  
                 skilled journeypersons who commenced working in the  








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                 apprenticeable occupation prior to the chief's approval of  
                 an apprenticeship program for that occupation in the county  
                 in which the project is located.


             c)   Defines "skilled journeyperson" as a worker who either:   
               1) graduated from an apprenticeship program that was approved  
               by the Chief of DAS or located outside California and  
               approved for federal purposes pursuant to apprenticeship  
               regulations adopted by the Secretary of Labor, or 2) has at  
               least as many hours of on-the-job experience in an applicable  
               occupation as would be required to graduate from an  
               apprenticeship program for the applicable occupation that is  
               approved by the chief. 


          8)Provides that an entity's commitment that a skilled and trained  
            workforce will be used to perform the project or contract may be  
            established by any of the following:


             a)   The entity's agreement with the school district that the  
               entity and its subcontractors at every tier will comply with  
               the requirements of this bill and that the entity will  
               provide the school district with evidence, on a monthly basis  
               while the project or contract is being performed, that the  
               entity and its subcontractors are complying with the  
               requirements of this bill. 


             b)   If the school district has entered into a project labor  
               agreement that will bind all contractors and subcontractors  
               performing work on the project or contract and that includes  
               the requirements of this bill, the entity's agreement that it  
               will become a party to that project labor agreement.


             c)   Evidence that the entity has entered into a project labor  
               agreement that includes the requirements of this bill and  








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               that will bind the entity and all its subcontractors at every  
               tier performing the project or contract.


          Request for proposals:


          9)Requires the school district to prepare a request for proposals  
            that invites prequalified or short-listed entities to submit  
            competitive sealed proposals in the manner prescribed by the  
            school district.  The request for proposals shall include, but  
            need not be limited to, the following elements:


             a)   Identification of the basic scope and needs of the project  
               or contract, the estimated cost of the project, the  
               methodology that will be used by the school district to  
               evaluate proposals, whether the contract will be awarded on  
               the basis of low bid or best value, and any other information  
               deemed necessary by the school district to inform interested  
               parties of the contracting opportunity.


             b)   Significant factors that the school district reasonably  
               expects to consider in evaluating proposals, including, but  
               not limited to, cost or price and all non-price-related  
               factors.


             c)   The relative importance or the weight assigned to each of  
               the factors identified in the request for proposals.


             d)   Where a best value selection method is used, the school  
               district may reserve the right to request proposal revisions  
               and hold discussions and negotiations with responsive  
               proposers, in which case the school district shall so specify  
               in the request for proposals and shall publish separately or  
               incorporate into the request for proposals applicable  








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               procedures to be observed by the school district to ensure  
               that any discussions or negotiations are conducted in good  
               faith.


             e)   For those projects utilizing low bid as the final  
               selection method, the competitive bidding process shall  
               result in lump-sum bids by the prequalified or short-listed  
               design-build entities, and awards shall be made to the  
               design-build entity that is the lowest responsible bidder.


             f)   Requires projects utilizing best value as a selection  
               method to follow a specified process that requires proposals  
               to be evaluated by using only the criteria and selection  
               procedures specifically identified in the request for  
               proposal, with the following minimum factors that must be  
               weighted as deemed appropriate by the awarding entity:  1)  
               price; 2) technical design and construction experience; and,  
               3) life-cycle costs over 15 or more years.


          Award of the contract:


          10)Authorizes the school district to hold discussions or  
            negotiations with responsive proposers, and requires proposers  
            to be ranked based on a determination of value provided, with a  
            limit of three proposers required to be ranked, as specified. 
          11)Requires the award of the contract to be made to the  
            responsible design-build entity whose proposal is determined to  
            have offered the best value to the public, and requires the  
            school district to publicly announce its award, as specified.


          Other specifications:


          12)Requires the design-build entity to provide payment and  








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            performance bonds for the project in the form and in the amount  
            required by the awarding authority, and issued by a California  
            admitted surety.  The amount of the payment bond shall not be  
            less than the amount of the performance bond.
          13)Requires the design-build contract to provide errors and  
            omissions insurance coverage for the design elements of the  
            project.


          14)Requires the school district to develop a standard form of  
            payment and performance bond for its design-build projects.


          15)Authorizes the school district, in each design-build request  
            for proposals, to identify specific types of subcontractors that  
            must be included in the design-build entity statement of  
            qualifications and proposal and outlines procedures for awarding  
            subcontracts with a value exceeding 0.5% of the contract price  
            allocable to construction work.  Provides all subcontractors  
            that are identified in the proposal to be afforded protections  
            under the Subletting and Subcontracting Fair Practices Act.


          16)Provides that the retention proceeds withheld by the school  
            district from the design-build entity shall not exceed 5%, and  
            the retention proceeds withheld between the design-build entity  
            and any subcontractor may not exceed the percentage specified in  
            the contract between the school district and the design-build  
            entity.


          17)Provides that nothing in this bill affects, expands, alters, or  
            limits any rights or remedies otherwise available by law.


          18)Sunsets on January 1, 2025, and as of that date is repealed,  
            unless a later enacted statute, that takes effect before January  
            1, 2025, deletes or extends that date.  









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          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee, no direct costs as use of the design-build process is  
          voluntary and should result in potential savings.  Presumably K-12  
          districts will choose design-build for a specific project upon  
          determining a potential for savings in terms of project schedule  
          and/or costs.  


           COMMENTS:  Background.  Under current law, K-12 school districts  
          are required to competitively bid any public works contract over  
          $15,000 and award the contract to the lowest responsible bidder.   
          Under this process, a school district would first hire an  
          architect to design a school facility and then issue a bid for the  
          construction phase, awarding the contract to the lowest bidder.   
          This process is commonly called "design-bid-build".  AB 1402  
          (Simitian), Chapter 421, Statutes of 2001, established a process  
          called "design-build" that enables a school district to issue a  
          bid for both the design and construction of projects over $10  
          million and authorizes school districts to consider factors other  
          than cost.  AB 1402 had an initial sunset of January 1, 2007, and  
          required the Legislative Analyst's Office to submit a report with  
          information on the experiences of districts that used the  
          design-build process and make recommendations to the Legislature.   
          The sunset was extended to January 1, 2010, in 2006 (AB 127  
          (Núńez), Chapter 35, Statutes of 2006).  


          The author introduced another bill in 2002, AB 1000 (Simitian),  
          Chapter 637, Statutes of 2002, authorizing three California  
          Community Colleges (CCC) districts to utilize design-build  
          contracts for projects over $10 million with a sunset of January  
          1, 2008.  SB 614 (Simitian), Chapter 471, Statutes of 2007,  
          reduced the threshold for eligible K-12 and CCC projects from $10  
          million to $2.5 million, extended the authority to all CCC  
          districts, and extended the sunset dates for both K-12 and CCCs to  
          January 1, 2014.  SB 1509 extended the sunset to January 1, 2020.   
           









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          Design-build.  Under a design-build process, a K-12, CCC district,  
          or other public or private agency issues a bid for both design and  
          construction of a facility.  A general contractor may collaborate  
          with an architect/engineer to submit a proposal, or a general  
          contractor may submit the proposal and subcontract with an  
          architect/engineer.  Prior to using a design-build process for a  
          project, a school district must make written findings that using  
          the design-build method for the project will meet at least one of  
          the following objectives:  reduce comparable project costs,  
          expedite the project's completions, or provide features not  
          achievable through the traditional design-bid-build process.  The  
          school district must also establish a process to prequalify  
          design-build entities using a standard questionnaire developed by  
          the Department of Industrial Relations.  The questionnaire  
          requires contractors to provide detailed information regarding the  
          company and its financial status, including whether the company  
          has been in bankruptcy or involved in a civil lawsuit, licensing  
          information, prior contracting experience (whether the contractor  
          has completed other public works projects), whether the contractor  
          has been involved or has been found to have violated any federal,  
          state or local laws, and whether the contractor has violated any  
          labor and health and safety laws, including prevailing wage.  


          Rather than selecting the contractor based solely on the lowest  
          offer, a school district may use criteria in addition to cost,  
          which may include qualification, experience, proposed design  
          approach, life cycle costs, project features and project  
          functions.  Based on the criteria selected by a governing board,  
          the proposals are scored and awarded to the bidder whose proposal  
          is considered to be the best value to the school district.  Under  
          a design-bid-build process, the architect works independently on  
          the design of the facility.  Once construction begins, any  
          problems identified by the contractor must be resolved, frequently  
          with the school district acting as the mediator.  Under  
          design-build, the architect and contractor are working together  
          from the beginning of the project, thereby reducing conflicts,  
          delays, and additional costs during the construction phase.   








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          Design-build contracting can expedite the construction of a  
          project, avoid conflicts between architects/engineers and  
          contractors, and according to experiences from school and CCC  
          districts, reduce costs by reducing change orders once  
          construction begins.  


          In addition to K-12 schools and CCC districts, a number of  
          design-build authorizations have been given to various cities and  
          counties, state building projects, and transit districts.  Last  
                                                                                year, SB 785 (Wolk), Chapter 931, Statutes of 2014, repealed the  
          authorization for a number of state and local agencies and enacted  
          uniform provisions for the Department of General Services, the  
          California Department of Corrections and Rehabilitation, and  
          specified local agencies using the design-build method.  SB 785  
          did not include the authorization for school districts.  


          What does this bill do?  This bill repeals the provisions  
          authorizing school districts to utilize the design-build method  
          and instead re-establishes provisions that are more aligned to SB  
          785.  The premise and the basic structure of the current  
          authorization for school districts and this bill are very similar.  
           The differences between the existing process and this bill  
          include:


          1)This bill lowers the threshold for participation from $2.5  
            million to $1 million; thereby expanding the pool of projects  
            eligible to be awarded through a design-build method.
          2)This bill extends the sunset from January 1, 2020, to January 1,  
            2025, consistent with the sunset established for SB 785.


          3)This bill deletes the provision requiring a school district  
            governing board to make written findings of the benefits by  
            using the design-build process for a particular project prior to  
            exercising the authority to use design-build (e.g., will reduce  
            project costs or expedite the project's completion).








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          4)The process for issuing a request for proposal under the current  
            authorization is more prescriptive than the process established  
            by this bill.  For example, under the existing process, 50% of  
            the factors used for best value selection must include price,  
            technical expertise, life-cycle costs over 15 years or more,  
            skilled labor force availability and acceptable safety record.   
            This bill requires only price, technical design and construction  
            expertise, and life-cycle costs over 15 or more years to be  
            required factors in the evaluation and gives districts the  
            authority to determine the weight of each factor.   


          5)This bill and the current authorization require the use of  
            registered apprentices.  However, this bill requires the  
            employment of specified percentages of skilled journeypersons  
            who are graduates of state approved apprenticeship programs by  
            specified dates.   


          6)The existing process requires a project inspector.  This bill  
            does not include a project inspector.  


          Arguments in support.  The State Building and Construction Trades  
          Council, the sponsor of the bill, states, "School construction  
          projects should be built to the highest standard using a skilled  
          and trained workforce.  Because there are limited funds available  
          to school districts for construction it is critical that these  
          projects be done on time and done right the first time.  AB 1358  
          achieves these goals and aligns the statutes for school  
          design-build to the comprehensive legislation on design-build that  
          included cities, counties, transit and special districts (SB 785  
          Wolk-2014)."

          Arguments in opposition.  The Air Conditioning Trade Association,  
          the Associated Builders and Contractors - San Diego, the  
          Plumbing-Heating-Cooling Contractors Association of California,  








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          and the Western Electrical Contractors Association have an oppose  
          unless amended position.  These organizations oppose the provision  
          allowing an entity to show its commitment to hiring a skilled and  
          trained workforce through a project labor agreement.  




          Analysis Prepared by:                                               
                          Sophia Kwong Kim / ED. / (916) 319-2087  FN:  
          0000335