BILL NUMBER: SB 937 AMENDED
BILL TEXT
AMENDED IN SENATE SEPTEMBER 12, 2001
INTRODUCED BY Senator Margett
FEBRUARY 23, 2001
An act to amend Section 4104.5 of, to add Sections 9204
and 9205 to, and to repeal Chapter 10 (commencing with Section 19100)
of Part 2 of Division 2 of Sections 4104.5 and 19100
of, and to add Section 9204 and Article 1.4 (commencing with Section
20103.9) of Chapter 1 of Part 3 of Division 2 to , the Public
Contract Code, relating to public contracts.
LEGISLATIVE COUNSEL'S DIGEST
SB 937, as amended, Margett. Public contracts: bids and
disputes.
The Subletting and Subcontracting Fair Practices Act requires a
public entity taking bids for construction of a public work or
improvement to establish a date for submission of bids by prime
contractors. Existing law applicable to local agencies requires that
any bids that are submitted after the bid submittal deadline must be
returned unopened to the bidder.
This bill would recast the provisions governing notice of bid
submittal deadlines, and would also apply to state agencies the
requirement that postdeadline bids be returned unopened.
The State Contract Act contains provisions governing the
resolution of disputes between contractors and state agencies,
including establishing a statute of limitations for damages on a
contract with the state and recognizing a cause for the 2nd lowest
bidder on a contract, if the successful bidder violated provisions
governing workers' compensation and unemployment insurance.
This bill would revise these provisions so that they are
applicable apply similar cause of action provisions
to all contracts subject to the Public Contract Code ,
including those and would establish separate statutes
of limitations for claims involving local agencies. The
bill would also make technical and clarifying changes.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4104.5 of the Public Contract Code is amended
to read:
4104.5. (a) The officer, department, board, or commission taking
bids for construction of any public work or improvement shall specify
in the bid invitation and public notice the place the bids of the
prime contractors are to be received and the time by which they shall
be received. The date and time shall be extended by no less than 72
hours if the officer, department, board, or commission issues any
material changes, additions, or deletions to the invitation later
than 72 hours prior to the bid closing. Any bids received after the
time specified in the notice or any extension due to material changes
shall be returned unopened.
(b) As used in this section, the term "material change" means a
change with a substantial cost impact on the total bid as determined
by the awarding agency.
(c) As used in this section, the term "bid invitation" shall
include any documents issued to prime contractors that contain
descriptions of the work to be bid or the content, form, or manner of
submission of bids by bidders.
SEC. 2. Section 9204 is added to the Public Contract Code, to
read:
9204. (a) Presentation of a claim pursuant to Part 3 (commencing
with Section 900) of Division 3.6 of Title 1 of the Government Code
is not required to commence a legal action or arbitration proceeding
for money or damages on a contract with a public entity, but any
action or proceeding shall be commenced not later than six months
after either of the following:
(1) The contracting public entity's final written decision under
contract claim provisions.
(2) The accrual of the cause of action, if there are no contract
claim provisions.
(b) Nothing contained in this section may be construed as
modifying or affecting the provisions of Article 8.1 (commencing with
Section 14410) of Chapter 3 of Part 5 of Division 3 of Title 2 of
the Government Code.
SEC. 3. Section 9205 is added to the Public Contract Code, to
read:
9205.
9204. (a) (1) The second lowest responsible
bidder, and any person, firm, association, trust, partnership, labor
organization, corporation, or other legal entity that has, prior to
the letting of the bids on the public works project in question,
entered into a contract with the second lowest responsible
bidder, may bring an action in superior court against the
successful bidder if that entity suffers damages as a result of
the bid of the second lowest responsible bidder for any
contract subject to this part not being accepted due to the
successful bidder's violation, as evidenced by the conviction of the
successful bidder therefor, of any provision of Division 4
(commencing with Section 3200) of the Labor Code or of the
Unemployment Insurance Code, or of both.
(2) There is a rebuttable presumption that a successful bidder who
has been convicted of a violation of any provision of Division 4
(commencing with Section 3200) of the Labor Code or of the
Unemployment Insurance Code, or of both, was awarded the bid because
that successful bidder was able to lower the bid due to this
violation or these violations occurring on the contract for public
work awarded by the public entity.
(b) In an action brought pursuant to this section, the court may
award costs and reasonable attorney's fees, in an amount to be
determined in the court's discretion, to the prevailing party.
(c) For purposes of an action brought pursuant to this section:
(1) Employee status shall be determined pursuant to Division 4
(commencing with Section 3200) of the Labor Code with respect to
alleged violations of that division, pursuant to the Unemployment
Insurance Code with respect to alleged violations of that code, or
pursuant to Section 2750.5 of the Labor Code with respect to alleged
violations of either Division 4 (commencing with Section 3200) or of
the Unemployment Insurance Code, or of both.
(2) "Second lowest bidder" means the second lowest
qualified bidder deemed responsive by the public entity awarding the
contract for public work.
(3) The "second lowest responsible bidder"
and the "successful bidder" may include any person, firm,
association, corporation, or other legal entity.
(d) A second lowest responsible bidder who has been
convicted of a violation of any provision of Division 4 (commencing
with Section 3200) of the Labor Code or of the Unemployment Insurance
Code, or both, within one year prior to filing the bid for public
work, and who has failed to take affirmative steps to correct that
violation or those violations, is prohibited from bringing any action
authorized by this section.
SEC. 4. Chapter 10 (commencing with Section 19100) of Part 2 of
Division 2 of the Public Contract Code is repealed.
SEC. 3. Section 19100 of the Public Contract Code is amended to
read:
19100. (a) Presentation of a claim pursuant to Part 3 (commencing
with Section 900) of Division 3.6 of Title 1 of the Government Code
is not required to commence a legal action or arbitration proceeding
for money or damages on a contract with the state, but any action or
proceeding shall be commenced not later than six months after either
of the following:
(1) The contracting agency's final written decision under contract
claim provisions.
(2) The accrual of the cause of action, if there are no contract
claim provisions.
(b) Nothing contained in this section shall be construed
as modifying or affecting the provisions of Article 8.1 (commencing
with Section 14410) of Chapter 3 of Part 5 of Division 3 of Title 2
of the Government Code This section does not modify or
affect any of the provisions of Article 7.1 (commencing with Section
10240) of Chapter 1 .
SEC. 4. Article 1.4 (commencing with Section 20103.9) is added to
Chapter 1 of Part 3 of Division 2 of the Public Contract Code, to
read:
Article 1.4. Presentation of Claims
20103.9. (a) Presentation of a claim pursuant to Part 3
(commencing with Section 900) of Division 3.6 of Title 1 of the
Government Code is not required to commence a legal action or
arbitration proceeding for money or damages on a contract with a
public entity other than the state. An action or proceeding against
a public entity other than the state shall be commenced within the
following time periods:
(1) If the contract requires any claim of the contractor to be
considered under a claims presentation or dispute resolution
procedure that results in a written decision on the merits of the
claim after the last work under the contract has been performed, then
six months after the last written decision under the claims
presentation or dispute resolution procedure.
(2) If the contract contains no claims presentation or dispute
resolution procedure that results in a written decision on the merits
of the claim after the last work under the contract has been
performed, then 12 months after the accrual of the cause of action.
(b) This section does not modify or affect any of the provisions
of Article 7.1 (commencing with Section 10240) of Chapter 1 of Part
2.
(c) All actions or proceedings against the state are subject to
the provisions of Chapter 10 (commencing with Section 19100) of Part
2.