BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 762| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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: SB 762 Page 2 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. SB 762 Page 3 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 SB 762 Page 4 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. SB 762 Page 5 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 SB 762 Page 6 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 SB 762 Page 7 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 SB 762 Page 8 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 SB 762 Page 9 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 SB 762 Page 10 Prepared by: Brian Weinberger / GOV. & F. / (916) 651-4119 9/8/15 21:51:47 **** END ****