BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        SB 762|
          |Office of Senate Floor Analyses   |                              |
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                                   THIRD READING 


          Bill No:  SB 762
          Author:   Wolk (D)
          Amended:  5/12/15  
          Vote:     21  

           SENATE GOVERNANCE & FIN. COMMITTEE:  5-0, 4/22/15
           AYES:  Hertzberg, Beall, Hernandez, Lara, Pavley
           NO VOTE RECORDED:  Nguyen, Moorlach

          SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8

           SUBJECT:   Counties:  competitive bidding:  best value:  pilot  
                     program


          SOURCE:    Author


          DIGEST:  This bill allows counties award construction contracts  
          through a "best value" procurement process.


          ANALYSIS:   Existing law, the Local Agency Public Construction  
          Act, requires local officials to invite bids for construction  
          projects and then award contracts to the lowest responsible  
          bidder.


          This bill:


          1) Establishes a pilot program to allow counties, until January  
             1, 2020, to use a "best value" procurement process to award  








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             construction contracts in excess of $1 million.


          2) Requires a county using the pilot program to award a contract  
             for a construction project to the lowest responsible bidder  
             or else reject all bids. 


          3) Allows a county to select the lowest responsible bidder on  
             the basis of the best value to a county. To ensure that  
             selections are conducted fairly and impartially, a county  
             that wants to select a bidder using the best value method  
             must adopt and publish mandatory procedures and criteria that  
             conform to this bill's requirements.


          4) Defines "best value" as 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.


          5) Defines "qualifications" as comprising the following five  
             criteria: 


              a)    "Demonstrated management competency," which this bill  
                defines as the experience, competency, capability, and  
                capacity of the proposed management staffing to complete  
                projects of similar size, scope, or complexity. 


              b)    "Financial condition," which this bill defines as the  
                financial resources needed to perform the contract,  
                including the capacity to obtain all required payment  
                bonds, performance bonds, and liability insurance. 


              c)    "Labor compliance," which this bill defines as the  
                ability to comply with, and past performance with,  
                contract and statutory requirements for the payment of  
                wages and qualifications of the workforce. Criteria used  
                to evaluate a bidder's labor compliance must include the  
                bidder's ability to comply with the apprenticeship  







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                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.


              d)    "Relevant experience," which this bill defines as  
                experience of the bidder to complete projects of similar  
                size, scope, or complexity. 


              e)    "Safety record," which this bill defines as the prior  
                history concerning the safe performance of construction  
                contracts. The criteria used to evaluate a bidder's safety  
                record must 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.


          6) Requires a county to evaluate financial condition, relevant  
             experience, demonstrated management competency, labor  
             compliance, and safety record, using, to the extent possible,  
             quantifiable measurements.


          7) Specifies that the bidding documents may require the county  
             to evaluate 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.


          8) Requires that a county using best value contracting must  
             establish a procedure to prequalify bidders pursuant to a  
             specified statute, prepare a solicitation for bids, and give  
             public notice of the solicitation pursuant to a specific  
             statute.


          9) Prohibits a county from selecting 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  







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             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: 


              a)    Reducing project costs, 


              b)    Expediting the completion of the project, or 


              c)    Providing features not achievable through awarding the  
                contract on the basis of the lowest bid price. 


          10)Allows a county to identify specific types of subcontractors  
             that are required to be included in the bids and requires a  
             county to comply with the Subletting and Subcontracting Fair  
             Practices Act with regard to construction subcontractors  
             identified in the bid.


          11)Each solicitation for bids must: 


              a)    Invite prequalified bidders to submit sealed bids in a  
                specified manner. 


              b)    Include a section identifying and describing the  
                following:


                i)      Criteria that a county will consider in evaluating  
                  bids.


                ii)         The methodology and rating or weighting system  
                  that the county will use in evaluating bids.


                iii)    The relative importance or weight assigned to the  







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                  criteria identified in the request for bids.


          12)Requires bidders to verify under oath the information that is  
             required as part of the bid solicitation process. 


          13)Specifies that information submitted by a bidder is not open  
             to public inspection to the extent that information is exempt  
             from disclosure under the California Public Records Act.


          14)Requires that an evaluation committee appointed by a county  
             selecting a best value contractor must evaluate bidders'  
             qualifications based solely upon the criteria specified in  
             the solicitation documents. The evaluation committee must  
             assign a qualifications score to each bid. 


          15)Requires a county to 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.


          16)Requires that the final evaluation of a best value contractor  
             must 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.


          17)Prohibits a county from awarding a contract for a  
             construction project under this bill's provisions if a  
             solicitation for bids for that construction project results  
             in fewer than three responsive bids being submitted for the  
             county to evaluate.


          18)Requires that the bidder whose bid is determined by a county,  
             in writing, to be the best value to a county must be awarded  
             the contract. 








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          19)Requires a county to determine the best value contractor by  
             dividing each bidder's price by its qualifications score. The  
             lowest resulting cost per quality point represents the best  
             value bid. 


          20)Requires a county to issue a written decision of its contract  
             award.


          21)Requires that, after issuing a contract award, a county must:  



              a)    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. 


              b)    Make the notice of award public and include the score  
                of the selected best value contractor in relation to all  
                other responsive bidders and their respective prices.  
                Include, in the contract file, documentation sufficient to  
                support the decision to award.


          22)If a successful bidder for a project refuses or fails to  
             execute a tendered contract, allows a board of supervisors  
             that deems it to be in the best interest of the county to  
             award the contract to the second lowest responsible bidder.  
             If the second lowest responsible bidder fails or refuses to  
             execute the contract, this bill allows the board of  
             supervisors to likewise award the contract to the third  
             lowest responsible bidder.


          23)Requires that the board of supervisors of a county that uses  
             the best value contracting process authorized by this bill  
             must submit a report to the appropriate policy committees of  
             the Legislature and the Joint Legislative Budget Committee.  
             The report must comply with statutory requirements for  







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             submitting reports to the Legislature and must include  
             specified information about projects awarded using best value  
             procedures.


          24)Clarifies that, except for the best-value process it  
             authorizes, it is not intended to change any guideline,  
             criteria, procedure, or requirement for a county to let a  
             contract to the lowest responsible bidder or else reject all  
             bids.


          Background


          Over the last two decades, legislators have gradually expanded  
          local governments' authority to procure construction projects  
          using various alternatives to the design-bid-build project  
          delivery method. These alternative methods include:  
          "Design-build" contracting, which allows local officials to  
          procure both design and construction services from a single  
          company before the development of complete plans and  
          specifications (SB 785, Wolk, Chapter 931, Statutes of 2014);  
          and "Construction manager at risk" contracting, which allows  
          local officials to retain a construction manager, who provides  
          pre-construction services during the design period, later  
          becomes the general contractor during the construction process,  
          and is responsible for delivering the project within an agreed  
          upon price, thereby assuming the risk for cost-overruns (SB 328,  
          Knight, Chapter 517, Statutes of 2013).


          During the bidding phase, these alternative procurement methods  
          allow a local government to evaluate bids on a best-value basis,  
          incorporating technical factors, such as qualifications, in  
          addition to price. For example, the statutes authorizing  
          design-build contracting allow a contract to be awarded based on  
          consideration of objective criteria that include features,  
          functions, lifecycle costs, experience, and past performance.  
          State law allows the University of California (UC), as a pilot  
          project until January 1, 2017, to award construction contracts  
          on a best-value basis, rather than awarding contracts based on  
          the lowest-priced bid (SB 835, Wolk, Chapter 636, Statutes of  
          2011).







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          Some county officials want the Legislature to grant them the  
          authority to award construction contracts on a best-value basis,  
          similar to the pilot program authorized for UC.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          SUPPORT:   (Verified5/12/15)


          Solano County


          OPPOSITION:   (Verified5/13/15)


          Southern California Contractors Association








          Prepared by:Brian Weinberger / GOV. & F. / (916) 651-4119
          5/13/15 16:45:35


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