BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  April 4, 2016


                        ASSEMBLY COMMITTEE ON TRANSPORTATION


                                 Jim Frazier, Chair


          AB 2374  
          (Chiu) - As Introduced February 18, 2016


          SUBJECT:  Construction Manager/General Contractor method:   
          regional transportation agencies:  ramps


          SUMMARY:  Extends existing authority for regional transportation  
          agencies (RTAs) to use the Construction Manager/General  
          Contractor (CMGC) procurement method to include ramp projects  
          that are not on the state highway system; removes the limitation  
          that a CMGC project is in a sales tax measure expenditure plan.


          EXISTING LAW:  


          1)Sets forth provisions governing public works contracting.   
            These provisions generally prohibit public agencies from  
            contracting with the same firm for both the design and the  
            construction phases of a project.  

          2)Generally requires public works construction contracts to be  
            awarded to the lowest responsible bidder.  

          3)Describes the CMGC procurement method and makes legislative  
            findings and declarations regarding benefits related to risk  
            transfer and project phasing using CMGC.









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          4)Authorizes the California Department of Transportation  
            (Caltrans) to use CMGC on no more than six projects, at least  
            five of which must have construction costs greater than $10  
            million.  

          5)Authorizes the Santa Clara County Valley Transportation  
            Authority, the San Mateo County Transit District, and the San  
            Diego Association of Governments to use CMGC for transit  
            projects.  

          6)Authorizes a RTA to use the CMGC project delivery method to  
            design and construct projects on expressways that are not on  
            the state highway system if the projects are developed in  
            accordance with an expenditure plan approved by the voters.

          7)Defines key terms as follows relative to authority granted to  
            regional transportation agencies to use CMGC:  

             a)   "Construction manager/general contractor method" to mean  
               a project delivery method in which a construction manager  
               is procured to provide preconstruction services during the  
               design phase of the project and construction services  
               during the construction phase of the project.  Contracts  
               for preconstruction services and construction services can  
               be, but need not be, entered into at the same time and the  
               design and construction phases of a project may be carried  
               out sequentially or concurrently; 

             b)   "Preconstruction services" to mean advice given during  
               the design phase of a project related to, for example,  
               scheduling, pricing, and phasing;

             c)   "Project" to mean the construction of an expressway that  
               is not on the state highway system; and,

             d)   "Regional transportation agency" to broadly include,  
               among other entities, regional transportation planning  
               agencies, county transportation commission, joint powers  
               authorities, and local transportation authorities.








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          8)Provides that the entity responsible for maintenance of local  
            streets and roads within the same jurisdiction of the  
            expressway shall be responsible for the maintenance of the  
            expressway.

          9)Sets forth provisions governing the process for procuring CMGC  
            services.  

          FISCAL EFFECT:  Unknown, this bill is keyed non-fiscal by the  
          Legislative Counsel.

          COMMENTS:  For decades, the traditional process for procuring  
          public works projects has been the design-bid-build process.   
          This process relies on the project owner:  1) preparing, or  
          causing to be prepared, complete project design specifications  
          and estimates; 2) putting the complete package out to bid for  
          construction; and 3) awarding the construction contract to the  
          lowest responsible bidder.  The design-bid-build process was  
          developed to protect taxpayers from extravagance, corruption,  
          and other improper practices by public officials as well as to  
          secure a fair and reasonable price for public works construction  
          by injecting competition amongst bidders into the process.  

          Although design-bid-build generally results in the lowest cost  
          construction contract, it is not without its drawbacks,  
          including:  

          1)Projects generally take longer to complete because designs  
            must be entirely completed, permits obtained, and right-of-way  
            acquired before the construction contract can be bid and  
            awarded.  

          2)Designs prepared for a competitive low-bid procurement are  
            developed to allow for a broad range of construction  
            approaches.  As a result, low-bid designs do not always equate  
            to the most efficient designs possible, depending on a  
            particular contractor's strengths or capabilities.  









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          3)Because the project designer does not have the benefit of  
            consulting with the entity that will ultimately be responsible  
            for construction of the project, there may be significant  
            issues that the designer does not anticipate, particularly  
            constructability issues.  This can result in change orders  
            that ultimately drive up the price of the contract.  

          4)Low-bid is not always the least expensive option, once change  
            orders and contractor claims are factored into the overall  
            project costs.  

          In the early 1990s, public works agencies grew frustrated with  
          design-bid-build and began experimenting with more innovative  
          project delivery methods, namely design-build.  Design-build is  
          an alternate method for procuring design and construction  
          services that provides for the delivery of public works projects  
          from a single entity.  Design-build combines project design,  
          permit, and construction schedules in order to streamline the  
          traditional design-bid-build environment.  

          Design-build differs from design-bid-build in some key areas,  
          including:

          1)Overall elapsed project delivery times are shorter because  
            construction can begin before final design is complete.  

          2)Project costs and schedule risks are more heavily borne by the  
            design-build contractor.  

          3)Construction claims and change orders are minimized.  

          4)Designs can be developed to take advantage of a particular  
            contractor's strengths and abilities, thereby reducing the  
            need to "over-design" for generic use as in design-bid-build.   


          5)Project specifications are typically based on definitive  
            performance criteria (which may or may not be well established  
            by the project owner) rather than established specifications.   








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          6)Contracts are awarded based on best-value analyses rather than  
            low-bid.  

          Design-build contracts are not without their drawbacks as well.   
          For example, with a design-build project, the project owner must  
          give up a good deal of control over the details of the project  
          design.  Additionally, design-build contractors are typically  
          selected using qualifications-based selection criteria or best  
          value analysis.  These approaches are more subjective than a  
          low-bid approach, potentially subjecting the public works owner  
          to greater contract challenges and higher costs.  

          Last session, the Legislature passed and the Governor signed AB  
          1171 (Linder), Chapter 413, Statutes of 2015, to provide limited  
          authority for RTAs to use CMGC on expressway projects that are  
          not on the state highway system.  AB 2374 extends that authority  
          also to include ramp projects, so long as the project is not on  
          the state highway system.  AB 2374 also removes the restriction  
          that projects have to be in a local sales tax measure  
          expenditure plan.  

          CMGC is an emerging project delivery method that potentially  
          combines the best of both design-bid-build and design-build.   
          Using CMGC, RTAs will be able to engage a design and  
          construction management consultant (construction manager) to act  
          as its consultant during the pre-construction phase and as the  
          general contractor during construction.  During the design  
          phase, the construction manager acts in an advisory role,  
          providing constructability reviews, value engineering  
          suggestions, construction estimates, and other  
          construction-related recommendations.  Later, each agency and  
          the construction manager can agree that the project design has  
          progressed to a sufficient enough point that construction may  
          begin.  The two parties then work out mutually agreeable terms  
          and conditions for the construction contract, and, if all goes  
          well, the construction manager becomes the general contractor  
          and construction on the project commences, well before design is  








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          entirely complete.  

          The CMGC process provides continuity and collaboration between  
          the design and construction phases of the project.  Construction  
          managers have an incentive to provide input during the design  
          phase that will enhance constructability of the project later  
          because they know that they will have the opportunity to become  
          the general contractor for the project.  Furthermore, CMGC  
          promises to save project delivery time, provide earlier cost  
          certainty, transfer risks from the RTA to the contractor, and  
          ensure project constructability.  Additionally, CMGC allows each  
          agency to have greater control of design decisions.  It also  
          allows each agency to design the project to compliment the  
          CMGC's strengths and capabilities, thereby avoiding the need to  
          over-design the project to provide maximum competitiveness in a  
          low-bid procurement.  

          There are potential drawbacks of using CMGC contracts.   
          According to guidance published by the City of Seattle, CMGC  
          contracts carry risks, including:

          1)They are difficult and complex.  

          2)The procurement process takes longer and consumes greater  
            project staff time than traditional design-bid-build  
            contracts.  

          3)Project teams face steep learning curves.  

          4)Successful construction cost negotiations require experienced  
            staff.  

          Other literature on the use of CMGC contracts is generally  
          consistent with Seattle's guidance regarding concerns for risks  
          associated with CMGC contracts and cautions that CMGC is not  
          appropriate for every project.  However, the same literature  
          suggests that, if carefully implemented, CMGC has the potential  
          to significantly improve project delivery.  









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          The author introduced AB 2374 to assist the San Francisco County  
          Transportation Authority (SFCTA) to complete its Yerba Buena  
          Island West-Side Bridges Retrofit project.  This $66 million  
          project will retrofit or replace eight locally-owned bridge  
          structures that connect Treasure Island to the San  
          Francisco-Oakland Bay Bridge.  According to the author, this  
          project is a complicated public safety project that involves  
          unique topographical, environmental, and construction staging  
          issues.  SFCTA has analyzed the potential use of CMGC for this  
          project and estimates that this procurement method could reduce  
          construction time by an estimated six months, reduce costs by  
          between 10% and 15%, and reduce project risk.   


          Regarding current CMGC projects underway since the initial CMGC  
          authority was granted in 2012 (see "previous legislation"  
          below), none of the projects have yet been completed.   
          Consequently, a more thorough examination of advantages and  
          disadvantages of CMGC contracting in California is still  
          pending.  However, those agencies that have initiated projects  
          using CMGC report that early indications suggest CMGC will have  
          positive project delivery outcomes. 


          Previous legislation:  AB 1171 (Linder), Chapter 413, Statutes  
          of 2015, provided limited authority for RTAs to use CMGC on  
          expressway projects that are not on the state highway system but  
          are in sales tax measure expenditure plans.

          AB 797 (Gordon), Chapter 320, Statutes of 2013, authorized the  
          Santa Clara Valley Transportation Authority and the San Mateo  
          County Transit District to use CMGC contracting on transit  
          projects.  

          AB 1724 (Frazier) of 2014, would have granted RTAs broad  
          authority to use CMGC.  AB 1724 passed the Assembly but was held  
          in Senate Transportation and Housing Committee.

          AB 2498 (Gordon), Chapter 752, Statutes of 2012, authorized  








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          Caltrans to use CMGC on no more than six projects, at least five  
          of which must have construction costs greater than $10 million.   


          SB 1549 (Vargas), Chapter 767, Statutes of 2012, authorized the  
          San Diego Association of Governments to use CMGC contracting on  
          transit projects.  
          


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Transportation Commission


          Santa Clara Valley Transportation Authority




          Opposition


          None on file




          Analysis Prepared by:Janet Dawson / TRANS. / (916) 319-2093












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