BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 762|
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                                UNFINISHED BUSINESS 


          Bill No:  SB 762
          Author:   Wolk (D)
          Amended:  9/4/15  
          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

           SENATE FLOOR:  24-12, 5/18/15
           AYES:  Allen, Beall, Block, Cannella, De León, Galgiani,  
            Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara,  
            Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan,  
            Roth, Wieckowski, Wolk
           NOES:  Anderson, Bates, Fuller, Gaines, Huff, Moorlach,  
            Morrell, Nguyen, Nielsen, Runner, Stone, Vidak
           NO VOTE RECORDED:  Berryhill, Hall, Pavley

           ASSEMBLY FLOOR:  53-25, 9/8/15 - See last page for vote

           SUBJECT:   Competitive bidding: best value: pilot program:  
                     design-build


          SOURCE:    County of Solano

          DIGEST:   This bill allows seven specified counties to award  
          construction contracts through a "best value" procurement  
          process and modifies the definitions of "best value" in statutes  
          allowing the state and local government officials to use the  
          design-build contracting method for some public works.  

          Assembly Amendments: 








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          1)Direct that the bill's provisions will only apply in seven  
            specified counties.

          2)Add requirements relating to the use of a skilled and trained  
            workforce, as defined.

          3)Add language limiting retention proceeds that can be withheld  
            in a contract awarded pursuant to this bill's provisions.

          4)Modify definitions of "best value" in existing statutes that  
            allow state and local officials to use the design-build  
            procurement method.

          5)Add findings and declarations explaining the need for  
            legislation that applies only to seven specified counties.

          ANALYSIS: 
          
          Existing law: 

           1) Requires, pursuant to the Local Agency Public Construction  
             Act, that local officials must invite bids for construction  
             projects and then award contracts to the lowest responsible  
             bidder.

           2) Allows various state and local agencies to use the  
             design-build procurement process for specified public works  
             under different laws.

          This bill:

           1) Establishes a pilot program to allow the counties of  
             Alameda, Los Angeles, Riverside, San Bernardino, San Diego,  
             Solano, and Yuba, until January 1, 2020, to use a "best  
             value" procurement process to award 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 bidder  
             representing the best value or else reject all bids. 









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           3) Allows a county to select the 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  
             selected bidder may be selected on the basis of objective  
             criteria with the resulting selection representing the best  
             combination of price and qualifications.

           5) Defines "best value contract" as a competitively bid  
             contract entered into pursuant to this bill's provisions.

           6) Defines "qualifications" as comprising the following five  
             criteria, as further defined within this bill: demonstrated  
             management competency, financial condition, labor compliance,  
             relevant experience, and safety record.

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

           8) 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.

           9) 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.

           10)Prohibits a county from prequalifying a best value  
             contractor unless the contractor provides an enforceable  
             commitment to the county that the contractor and its  
             subcontractors at every tier will use a skilled and trained  
             workforce, as defined, to perform all work on the project or  
             contract that falls within an apprenticeable occupation, as  








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             defined, in the building and construction trades.  

           11)Prohibits a county from selecting a 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: 

              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. 

           12)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.

           13)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  
                  criteria identified in the request for bids.

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








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           15)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.

           16)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. 

           17)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.

           18)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.

           19)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.

           20)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. 

           21)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. 

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

           23)Requires that, after issuing a contract award, a county  








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             must: 

              a)    Publicly announce its award identifying the best value  
                contractor that was selected, the project, the project  
                price, and the selected 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.

           24)Allows, if a successful bidder for a project refuses or  
             fails to execute a tendered contract, a board of supervisors  
             that deems it to be in the best interest of the county to  
             award the contract to bidder with the second lowest best  
             value score.  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  
             bidder with the third lowest best value score.

           25)Imposes limits on retention proceeds that can be withheld in  
             a contract awarded pursuant to this bill's provisions.

           26)Requires that the board of supervisors of a county that uses  
             the best value contracting process authorized by this bill  
             must submit a report that fulfills specified requirements to  
             the appropriate policy committees of the Legislature and the  
             Joint Legislative Budget Committee.

           27)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.

           28)Modifies definitions in statutes that allow state and local  
             officials to use the design-build procurement method to  
             specify that "best value" means a value determined by  
             evaluation of objective criteria that relate to price,  
             features, functions, life-cycle costs, experience, and past  








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             performance.

          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).

          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


          According to the Assembly Appropriations Committee, this bill  








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          will result in negligible state costs.


          SUPPORT:   (Verified9/8/15)


          County of Solano (source)
          Air Conditioning & Refrigeration Contractors Association
          Air Conditioning Sheet Metal Association
          Associated General Contractors
          California Legislative Conference of the Plumbing, Heating and  
          Piping Industry
          California State Association of Counties
          County of Los Angeles
          County of San Bernardino
          County of Yuba
          Finishing Contractors Association of Southern California
          National Electrical Contractors Association, California Chapters
          Northern California Allied Trades
          State Building and Construction Trades Council of California
          Wall and Ceiling Alliance


          OPPOSITION:   (Verified9/8/15)


          Air Conditioning Trade Association
          American Fire Sprinkler Association
          Associated Builders and Contractors - San Diego Chapter
          Associated Builders and Contractors of California
          National Right to Work Committee
          Pacific Power & Systems
          Plumbing-Heating-Cooling Contractors Association of California
          Southern California Contractors Association
          Western Electrical Contractors Association 


          ARGUMENTS IN SUPPORT:  Supporters state allowing local  
          governments to consider a range of relevant criteria, rather  
          than focusing solely on price allows local governments to better  
          match a contractor to a public works project's specific  
          requirements.  Contracts awarded solely on a low-bid basis may  








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          go to bidders who are not the best-qualified to meet the  
          technical challenges, mitigate the unique risks, or fulfill the  
          scheduling requirements of a particular construction project.   
          This sometimes results in change orders, construction defects,  
          delays, and litigation that ultimately cost taxpayers more than  
          the savings that were realized by awarding a contract to the  
          lowest bidder.  This bill allows counties to use a version of  
          the "best value" bid evaluation that is already authorized as  
          part of some alternative project delivery methods, like  
          design-build.  By doing so, the bill lets local officials to  
          exercise discretion in awarding contracts to the bidder who is  
          most likely to provide the public with the best project outcome  
          for a fair price.


          ARGUMENTS IN OPPOSITION:     Opponents state by allowing  
          officials to award contracts based on a range of  
          variously-weighted criteria in addition to price, this bill  
          makes the procurement process for county construction projects  
          more subjective.  More subjectivity increases the chances that  
          inappropriate factors could influence which bidders are awarded  
          some contracts.  Many common public works projects can be  
          specified with great precision in bid documents.  In such cases,  
          where a public agency can meticulously describe a project  
          exactly as it is to be built, it is unclear why the agency  
          should distinguish between bidders based on any criteria other  
          than price. 

           ASSEMBLY FLOOR:  53-25, 9/8/15
           AYES: Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Campos, Chau,  
            Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd,  
            Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia,  
            Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández,  
            Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty,  
            Medina, Mullin, Nazarian, O'Donnell, Perea, Quirk, Rendon,  
            Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,  
            Thurmond, Ting, Weber, Williams, Wood, Atkins
           NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang,  
            Beth Gaines, Grove, Hadley, Harper, Jones, Kim, Lackey,  
            Linder, Maienschein, Mathis, Mayes, Melendez, Obernolte,  
            Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk
           NO VOTE RECORDED: Calderon, Chávez








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          Prepared by: Brian Weinberger / GOV. & F. / (916) 651-4119
          9/8/15 21:51:47


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