BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON EDUCATION
                              Senator Carol Liu, Chair
                                2015 - 2016  Regular 

          Bill No:               AB 1358           
           ------------------------------------------------------------------ 
          |Author:     |Dababneh                                             |
          |------------+-----------------------------------------------------|
          |Version:    |February 27, 2015                       Hearing Date |
          |            |     July 1, 2015                                    |
           ------------------------------------------------------------------ 
           ----------------------------------------------------------------- 
          |Urgency:    |No                     |Fiscal:    | Yes            |
           ----------------------------------------------------------------- 
           ------------------------------------------------------------------ 
          |Consultant: |Kathleen Chavira                                     |
           ------------------------------------------------------------------ 
          
          Subject:  School facilities:  design-build contracts

            SUMMARY
          
          This bill repeals the existing design-build authority for school  
          districts and re-establishes the authority to generally align  
          with that which exists for other state and local agencies,  
          establish extensive new skilled workforce requirements, reduce  
          the threshold for its use from $2.5 million to $1 million, and  
          to sunset this authority on January 1, 2025.

            BACKGROUND
          
          Existing law authorizes a school district governing board to  
          enter into a design-build contract for the design and  
          construction of a school facility for projects in excess of two  
          million five hundred thousand dollars ($2,500,000) if, after  
          evaluating traditional design-bid-build and design-build  
          processes in a public meeting, the governing board makes written  
          findings that use of the design-build process on a specific  
          project will either:

          1)Reduce comparable project costs.

          2)Expedite the project's completion.

          3)Provide features not achievable through the traditional  
            design-bid-build method. 

          Existing law establishes specific procedures for the progression  
          of a K-12 school facility design-build project, outlines the  







          AB 1358 (Dababneh)                                      Page 2  
          of ?
          
          
          specific elements to be included in a request for proposal  
          (including significant factors, subfactors, methodology, rating  
          and weighting schemes for evaluating proposals), and  
          establishes, among other things, pre-qualification, bonding, and  
          labor compliance program requirements.
          (Education Code § 17250.10 - § 17250.50)

          Existing law also provides parallel authority, procedures and  
          requirements for community college district governing boards to  
          conduct design-build projects. 
          (EC § 81700 - § 81708)

          Existing law sunsets the authority of K-12 and community college  
          districts to use design-bid procurement on January 1, 2020. 






            ANALYSIS
          
          This bill: 

       1)Deletes and revises the existing authority of a school district  
            to use a design-build procurement process for public works  
            projects.

       2)Reduces the threshold for entering into a design-build contract  
            for K-12 school facility projects from $2.5 million to $1  
            million.

       3)Establishes the authority, procedures, bond and subcontractor  
            requirements, performance criteria and design standards, to  
            enter into design-build contracts consistent with prior  
            statute except for the following changes:

               a)        Adds new definitions for "design-build team,"  
               "Construction subcontract," and "project."

               b)        Eliminates the requirement that a school district  
               governing board make specified written findings prior to  
               using the authority.









          AB 1358 (Dababneh)                                      Page 3  
          of ?
          
          
               c)        Requires adoption of a conflict-of-interest  
               policy by the school district.

               d)        Implements a less prescriptive process for  
               issuing a request for proposal and grants districts greater  
               discretion to determine and assign weight to factors for  
               best value selection. 

               e)        Eliminates the requirements for a project  
               inspector.

       4)Requires that a design-build entity must meet specified skilled  
            and trained workforce requirements to be prequalified or  
            shortlisted for design-build contracts and establishes the  
            following skilled workforce requirements and related  
            definitions:

               a)        "Skilled journeyperson" as a worker who either  
               graduated from an applicable apprenticeship program which  
               met specified state or federal approval requirements, or  
               had at least as many hours of on-the-job experience in an  
               applicable occupation as would be required for graduation  
               from a state-approved apprenticeship program.  

               b)        "Apprenticeable occupation" as an occupation for  
               which the Chief of the Division of Apprenticeship Standards  
               of the Department of Industrial Relations had approved an  
               apprenticeship program before January 1, 2014.

               c)        "Skilled and trained workforce" as a workforce in  
               which all the workers are skilled journeypersons or  
               apprentices registered in an apprenticeship program  
               approved by the Chief of the Division of Apprenticeship  
               Standards of the Department of Industrial Relations and  
               establishes the following phased-in implementation of the  
               proportion of skilled journeypersons and subcontractors,  
               employed at every tier, that must be approved  
               apprenticeship program graduates to meet the condition of  
               having a "skilled and trained workforce":

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

                   ii)    At least 30% by January 1, 2017.









          AB 1358 (Dababneh)                                      Page 4  
          of ?
          
          
                   iii)   At least 40% by January 1, 2018.

                   iv)    At least 50% by January 1, 2019.

                   v)     At least 60% by January 1, 2020.

               d)        Provides that, for an apprenticeable occupation  
               with no approved program prior to January 1, 1995, up to  
               one-half of the apprenticeship program graduate percentage  
               requirements may be met by skilled journeypersons who  
               commenced work in the occupation prior to the approval of  
               an applicable apprentice program in the county of the  
               project's location. 

               e)        Prohibits the prequalification or shortlisting of  
               a best value entity absent an enforceable commitment to use  
               a skilled and trained workforce for all work on the  
               project/contract as applicable and provides that this  
               commitment may be established by: 

                   i)     An agreement between the entity and the school  
                 district governing board to comply with these  
                 requirements and the provision of monthly evidence  
                 demonstrating such compliance during the performance of  
                 the project/contract.

                   ii)    A project labor agreement (PLA), entered into by  
                 the school district governing board, that includes these  
                 requirements and that binds all  
                 contractors/subcontractors working on the  
                 project/contract and agreement by the entity to become a  
                 party to the PLA.

                   iii)   Evidence that the entity has entered into a PLA  
                 that includes these requirements and that binds the  
                 entity and all its subcontractors at every tier  
                 performing the project/contract. 

       5)Extends the sunset on the authority to use design-bid from  
            January 1, 2020 to January 1, 2025.

          STAFF COMMENTS
          
          1)Need for the bill.   According to the author this bill aligns  








          AB 1358 (Dababneh)                                      Page 5  
          of ?
          
          
            the statutes authorizing school districts to use design-build  
            with those recently adopted as applicable to the use of  
            design-build by cities, counties, transit and special  
            districts.  According to the sponsor, requiring the use of a  
            skilled workforce ensures on-time project delivery, on or  
            under budget, and incentivizes the use of local workers who  
            are graduates of apprenticeship programs.  

          2)What is design-build?   There are two primary construction  
            delivery systems used in the public and private sectors,  
            "design-bid-build" and "design-build."  

            Current law requires that school districts award construction  
            contracts over $15,000 to the lowest responsible bidder.   
            Current law also allows contracts for architectural services  
            to be awarded on the basis of demonstrated competence and  
            professional qualifications to be performed at a fair and  
            reasonable price (not necessarily lowest bidder).  These laws  
            have meant that schools (and most public construction work)  
            have been built using a "design-bid-build" methodology wherein  
            a separate contract is awarded for the design work by an  
            architect and another contract is awarded to the lowest  
            responsible bidder for the construction.

            In the 1990's, the state began the enactment of various  
            legislation authorizing state and local entities to use a  
            "design-build" system under specified circumstances.   Under  
            this approach a single contract is awarded to a professional  
            team, a "design-build" entity, to conduct both types of work.   
            Rather than awarding such a contract to the lowest responsible  
            bidder, it may be awarded on the basis of the experience and  
            qualifications of the competitors, or on a determination that  
            a particular competitor provides the best value to the  
            project.  

            The authority for design-bid was first implemented for school  
            districts by AB 1402 (Simitian, Chapter 421, Statutes of  
            2001), and though originally set to sunset in 2007, was  
            extended to 2010 by AB 127 (Nunez, Chapter 35, Statutes of  
            2006), this authority is currently extended until 2020 as the  
            result of the enactment of SB 1509 (Simitian, Chapter 736,  
            Statutes of 2012).  

          3)Related Legislative Analyst's Office (LAO) reports.  In  








          AB 1358 (Dababneh)                                      Page 6  
          of ?
          
          
            February 2005, the LAO issued a report on Design-Build: An  
            Alternative Construction System in which it reported its  
            consolidated findings on design-build across several public  
            works sectors.  Among other things, the LAO recommended that  
            the state adopt a single statute applying to all public  
            entities, design-build be available as an option and not a  
            replacement for "design-bid-build" and that no cost threshold  
            be imposed on the authority to use design-build.  The LAO also  
            noted that disadvantages of design-bid included a limited  
            assurance of quality control since the building is not  
            typically defined in detail at the time of entering into the  
            contract, and a more subjective process for awarding contracts  
            and evaluating qualifications and experience, as well as  
            limited access for small contractors without the range of  
            experience of larger, long-established firms. 

            In January 2010, the LAO presented a summary of reports  
            received from California counties that had completed  
            construction projects using the design-build delivery method,  
            as required under the legislation extending design-build  
            authority to county governments (Public Contract Code Section  
            20133).  The LAO noted that although difficult to draw  
            conclusions from the reports received about the effectiveness  
            of design-build compared to other project delivery methods,  
            there was no evidence to discourage the Legislature from  
            granting design-build authority to local agencies on an  
            ongoing basis.  The LAO also recommended that the Legislature  
            consider, among other things, creating a uniform design-build  
            statute.

          4)Uniform provisions for design-build authority.  SB 785 (Wolk,  
            Chapter 931, Statutes of 2014) repealed existing law  
            authorizing the Department of General Services, the Department  
            of Corrections and Rehabilitation, and specified local  
            agencies to use the design-build procurement process and  
            enacted more uniform provisions authorizing these entities to  
            utilize this procurement process for public works projects.   
            SB 785 also added a sunset date of January 1, 2025, on these  
            design-bid authorizations.  This bill generally establishes  
            these same provisions as applicable to school districts.

          5)How is the new authority different?  Generally, the basic  
            structure of the statute remains very similar as regards most  
            definitions, procedures, and bond and subcontractor  








          AB 1358 (Dababneh)                                      Page 7  
          of ?
          
          
            requirements.  Consistent with the provisions of SB 785 (Wolk,  
            2014), the threshold for entering into a design-build contract  
            for K-12 school facility projects is reduced to $1 million and  
            design-bid authority sunsets in 2025.  Additionally, a school  
            district no longer has to make written findings of the  
            benefits of design-bid prior to its use, the process for  
            issuing a request for proposals sis less prescriptive, no  
            project inspector is required, and the requirements for use of  
            a skilled workforce are more extensive.

          6)Apprenticeship programs.  According to the Department of  
            Industrial Relations (DIR), apprenticeship programs combine  
            training on the job with related and supplemental instruction  
            at school.  Each program operates under apprenticeship  
            training standards agreed to by labor and/or management in  
            accordance with State and Federal laws.  The period of  
            training is from 1 to 6 years, depending upon the trade with  
            most programs being about 4 years.  Apprentices attend classes  
            of related technical instruction, giving apprentices a  
            comprehensive understanding of the theoretical aspects of  
            their work.  In most cases this means attending classes at  
            night 4 hours each week, for at least 108 hours a year.   
            Instruction includes such subjects as safety laws and  
            regulations, mathematics, drafting, blueprint reading and  
            other sciences connected with the trade.

            In March 2015, the Legislative Analyst's Office reported that  
            there are more than 50,000 apprentices registered in 47  
            trades, with the vast majority in the construction trades and  
            public safety.  The recently adopted 2015-16 State Budget  
            increased funding for Apprenticeship Programs by $29 million. 

            Notwithstanding this infusion of funds to support and expand  
            apprenticeship education programs, concerns have been raised  
            about the ability of school districts to meet the annual  
            targets within the timelines established.  In response, the  
            author has proposed an amendment to delay implementation of  
            the bill's provisions to apply to bid requests issued on or  
            after July 1, 2016.  Staff recommends the bill be so amended. 

          7)Similar legislation.  The provisions of this bill relative to  
            a skilled workforce are very similar to recently adopted  
            provisions regarding the use of a design-build method for  
            awarding public works contracts by state and local agencies  








          AB 1358 (Dababneh)                                      Page 8  
          of ?
          
          
            (SB 785, Chapter 931, Statutes of 2014), as well as contracts  
            for the construction, alteration, demolition, installation,  
            repair, or maintenance work at petroleum refineries (SB 54,  
            Chapter 795, Statutes of 2013).  In addition, this Committee  
            has heard other bills this session which implement similar  
            skilled workforce requirements as elements of the authority to  
            use procurement methods other than design-bid-build.  These  
            include:

             a)   AB 566 (O'Donnell) which, among other things,  
               establishes similar skilled workforce requirements for  
               lease/leaseback and lease to own procurement contracts.  AB  
               566 was heard and passed by this Committee on June 10,  
               2015, by a vote of 6-2 and is currently awaiting action in  
               the Senate Appropriations Committee. 

             b)   AB 1185 (Ridley-Thomas) establishes similar skilled  
               workforce requirements as a component of a pilot program to  
               authorize the Los Angeles Unified School District (LAUSD)  
               to use a best value procurement method, before December 31,  
               2020, for public projects that exceed $1 million.  AB 1185  
               was heard and passed by this Committee on June 17, 2015, by  
               a vote of 6-2 and is currently awaiting action in the  
               Senate Appropriations Committee.

            SUPPORT
          
          Air Conditioning Sheet Metal Association
          Air-conditioning & Refrigeration Contractors Association
          California Labor Federation
          California Legislative Conference of the Plumbing, Heating and  
          Piping Industry
          California State Association of Electrical Workers
          California State Pipe Trades Council
          Finishing Contractors Association of Southern California
          National Electrical Contractors Association - California  
          Chapters
          State Building and Construction Trades Council
          United Contractors 
          Wall and Ceiling Alliance
          Western States Council of Sheet Metal Workers

            OPPOSITION
           








          AB 1358 (Dababneh)                                      Page 9  
          of ?
          
          
           Air Conditioning Trade Association
          Airtight Heating and Sheet Metal
          Associated Builders and Contractors - San Diego Chapter
          Associated Builders and Contractors of California
          California School Boards Association
          Forcum/Mackey Construction Inc. 
          Fortuna Iron
          National Right to Work Committee
          O&M Industries
          Plumbing-Hearing-Cooling Contractors Association of California
          Western Electrical Contractors Association


                                      -- END --