BILL NUMBER: SB 762 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 28, 2015
AMENDED IN SENATE APRIL 15, 2015
INTRODUCED BY Senator Wolk
FEBRUARY 27, 2015
An act to add Article 3.7 (commencing with Section 20155) to
Chapter 1 of Part 3 of Division 2 of the Public Contract Code,
relating to public contracts.
LEGISLATIVE COUNSEL'S DIGEST
SB 762, as amended, Wolk. Counties: competitive bidding: best
value: pilot program.
The Local Agency Public Construction Act requires counties, among
others, to comply with specified procedures for contracting for
public works projects, including, including
the use of a competitive bidding process and awarding contracts
to the lowest responsible bidder. Existing law provides that
specified provisions of the act applicable to public works contracts
awarded by counties, as specified, do not apply to certain contracts
by the County of Napa and the County of San Diego.
This bill would establish a pilot program to allow counties to
select the lowest responsible bidder on the basis of best value, as
defined, for construction projects in excess of $1,000,000. The
bill would establish procedures and criteria for the selection of a
best value contractor. The bill would require that bidders
verify specified information under oath, thereby imposing a
state-mandated local program by creating a new crime. The bill
would require the board of supervisors of a participating county,
before January 1, 2020, to submit a report to specified legislative
committees.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 3.7 (commencing with Section 20155) is added to
Chapter 1 of Part 3 of Division 2 of the Public Contract Code, to
read:
Article 3.7. Best Value Construction Contracting for Counties
Pilot Program
20155. (a) This article provides for a pilot program for counties
for construction projects in excess of one million dollars
($1,000,000).
(b) The board of supervisors of any county shall let any contract
for a construction project pursuant to this article to the lowest
responsible bidder or else reject all bids.
(c) The lowest responsible bidder may be selected on the basis of
the best value to a county. In order to implement this method of
selection, the board of supervisors shall adopt and publish
procedures and required criteria that ensure that all selections are
conducted in a fair and impartial manner. These procedures shall
conform to Sections 20155.2 and 20155.3 and shall be mandatory for
counties who choose to participate in the pilot program.
(d) If the board of supervisors deems it to be in the best
interest of the county, the board of supervisors, on the refusal or
failure of the successful bidder for a project to execute a tendered
contract, may award it to the second lowest responsible bidder. If
the second lowest responsible bidder fails or refuses to execute the
contract, the board of supervisors may likewise award it to the third
lowest responsible bidder.
20155.1. As used in this article:
(a) "Best value" means a procurement process whereby the lowest
responsible bidder may be selected on the basis of objective criteria
with the resulting selection representing the best combination of
price and qualifications.
(b) "Best value contract" means a contract entered into pursuant
to this article.
(c) "Best value contractor" means a properly licensed person,
firm, or corporation that submits a bid for, or is awarded, a best
value contract.
(d) "Demonstrated management competency" means the experience,
competency, capability, and capacity of the proposed management
staffing to complete projects of similar size, scope, or complexity.
(e) "Financial condition" means the financial resources needed to
perform the contract. The criteria used to evaluate a bidder's
financial condition shall include, at a minimum, capacity to obtain
all required payment bonds, performance bonds, and liability
insurance.
(f) "Labor compliance" means the ability to comply with, and past
performance with, contract and statutory requirements for the payment
of wages and qualifications of the workforce. The criteria used to
evaluate a bidder's labor compliance shall include, as a minimum, the
bidder's ability to comply with the apprenticeship requirements of
the California Apprenticeship Council and the Department of
Industrial Relations, its past conformance with those requirements,
and its past conformance with requirements to pay prevailing wages on
public works projects.
(g) "Qualifications" means the financial condition, relevant
experience, demonstrated management competency, labor compliance,
the and safety record of the bidder,
and, if required by the bidding documents, some or all of the
preceding qualifications as they pertain to subcontractors proposed
to be used by the bidder for designated portions of the work. A
county shall evaluate financial condition, relevant
experience, demonstrated management competency, labor compliance, and
safety record, using, to the extent possible, quantifiable
measurements.
(h) "Relevant experience" means the experience,
competency, capability, and capacity to complete
experience of the bidder with projects of similar size, scope,
or complexity.
(i) "Safety record" means the prior history concerning the safe
performance of construction contracts. The criteria used to evaluate
a bidder's safety record shall include, at a minimum, its experience
modification rate for the most recent three-year period, and its
average total recordable injury or illness rate and average lost work
rate for the most recent three-year period.
20155.2. A county shall proceed in accordance with the following
when awarding best value contracts under this article:
(a) A county shall not select a lowest responsible bidder on the
basis of the best value to a county unless, after evaluating at a
public meeting the alternative of awarding the contract on the basis
of the lowest bid price, the county makes a written finding that
awarding the contract on the basis of best value, for the specific
project under consideration, will accomplish one or more of the
following objectives: reducing project costs, expediting the
completion of the project, or providing features not achievable
through awarding the contract on the basis of the lowest bid price.
(a)
(b) A county shall prepare a solicitation for bids and
give notice pursuant to Section 20125. The county may identify
specific types of subcontractors that are required to be included in
the bids. A county shall comply with Chapter 4 (commencing with
Section 4100) of Part 1 with regard to construction
subcontractors identified in the bid.
(b)
(c) A county shall establish a procedure to prequalify
bidders pursuant to Section 20101. The information required pursuant
to this section shall be verified under oath by the bidder in the
manner in which civil pleadings in civil actions are verified.
Information submitted by the bidder as part of the evaluation process
shall not be open to public inspection to the extent that
information is exempt from disclosure under the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code).
(c)
(d) Each solicitation for bids shall do all of the
following:
(1) Invite prequalified bidders to submit sealed bids in the
manner prescribed by this article.
(2) Include a section identifying and describing the following:
(A) Criteria that a county will consider in evaluating bids.
(B) The methodology and rating or weighting system that will be
used by a county in evaluating bids.
(C) The relative importance or weight assigned to the criteria
identified in the request for bids.
(d)
(e) Final evaluation of the best value contractor shall
be done in a manner that prevents cost or price information from
being revealed to the committee evaluating the qualifications of the
bidders prior to completion and announcement of that committee's
decision.
20155.3. Selection of the best value contractor shall be made as
follows:
(a) (1) An evaluation committee appointed by
the county shall evaluate the qualifications of the bidders based
solely upon the criteria set forth in the solicitation documents, and
shall assign a qualifications score to each bid.
(2) A county shall establish written policies and procedures,
consistent with applicable law, to ensure that members of an
evaluation committee are free from conflicts of interest, if the
county has not already established applicable written policies and
procedures.
(b) A county shall not award a contract for a construction project
pursuant to this article if a solicitation for bids for that
construction project results in the submission of fewer than three
responsive bids to the county for evaluation.
(c) The award of the contract shall be made to the bidder whose
bid is determined by a county, in writing, to be the best value to a
county. To determine the best value contractor, the county shall
divide each bidder's price by its qualifications score. The lowest
resulting cost per quality point will represent the best value bid.
(d) A county shall issue a written decision of its contract award.
(e) Upon issuance of a contract award, a county shall publicly
announce its award identifying the best value contractor to which the
award is made, the project, the project price, and the selected best
value contractor's score based on the evaluation criteria listed in
the request for bids. The notice of award shall be made public and
include the score of the selected best value contractor in relation
to all other responsive bidders and their respective prices. The
contract file shall include documentation sufficient to support the
decision to award.
20155.4. (a) Before January 1, 2020, the board of supervisors of
a participating county shall submit a report to the appropriate
policy committees of the Legislature and the Joint Legislative Budget
Committee. The report shall include, but is not limited to, the
following information:
(1) A description of the projects awarded using the best value
procedures.
(2) The contract award amounts.
(3) The best value contractors awarded the projects.
(4) A description of any written protests concerning any aspect of
the solicitation, bid, or award of the best value contracts,
including the resolution of the protests.
(5) A description of the prequalification process.
(6) The criteria used to evaluate the bids, including the
weighting of the criteria and an assessment of the effectiveness of
the methodology.
(7) If a project awarded under this article has been completed, an
assessment of the project performance, to include a summary of any
delays or cost increases.
(b) A report submitted pursuant to subdivision (a) shall be
submitted in compliance with Section 9795 of the Government Code.
(c) This section shall remain in effect only until January 1,
2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends
that date.
20155.5. Except as otherwise provided in this article, this
article is not intended to change in any manner any guideline,
criteria, procedure, or requirement of a county to let any contract
for a project to the lowest responsible bidder or else reject all
bids.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.