BILL ANALYSIS
AB 1409
Page 1
Date of Hearing: May 6, 2009
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Anna Marie Caballero, Chair
AB 1409 (John A. Perez) - As Amended: April 29, 2009
SUBJECT : Public contracts: contracts: county highways.
SUMMARY : Changes the authorization for a county board of
supervisors to direct a road commissioner or a registered civil
engineer under the direction of the county director of
transportation to enter into contracts for work upon county
highways that involves the purchasing of material and having the
work done by day labor or force account if the board of
supervisors does both of the following:
1)Advertises and request bids.
2)Passes a resolution making a finding that either no bids were
received or all of the bids received exceeded the cost of
having the work done by day labor or force account.
EXISTING LAW specifies that a county board of supervisors is
authorized to direct a road commissioner or a registered civil
engineer under the direction of the county director of
transportation to have any work upon county highways done in one
of five ways:
1)By letting a contract covering both work and material, with
the contract let to the lowest responsible bidder.
2)By purchasing the material and letting a contract for the
performance of the work, with the material bought at the
lowest possible cost and the contract let to the lowest
responsible bidder.
3)By purchasing the material and having the work done by day
labor, in which case advertising for bids is not required.
4)By authorizing the county road commissioner or a registered
civil engineer under the direction of the county director of
transportation to execute changes for any contract in an
amount not to exceed $5,000 for contracts of $50,000 or less,
or 10% for contracts over $50,000 but not to exceed $250,000.
For contracts whose original cost exceeds $250,000, the extra
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cost for any change or addition to the work so ordered cannot
exceed $25,000, plus 5% of the amount of the original contract
costs in excess of $250,000.
5)By purchasing the material and letting a contract for the work
or by letting a contract covering both work and material
without advertising for bids when the estimated cost of
emergency work necessitated by the imminence or occurrence of
a landslide, flood, storm damage, or other emergency exceeds
$25,000 and the public interest and necessity demand immediate
action to safeguard life, health, or property.
FISCAL EFFECT : None
COMMENTS :
1)The author states that, when Section 20395 of the Public
Contract Code was enacted in 1982, rural counties had fewer
contractors capable of making repairs through the traditional
open bidding process. However, now the construction field has
changed due to new technologies, and contractors are able to
complete repairs that would have been difficult or impossible
to do with the technology available in 1982. Some of the new
technologies allow the production of asphalt to be done by
moving mobile plants into an area. Furthermore, the author
states that some large, urban counties are taking advantage of
this authorization in order to not bid out certain highway
construction projects.
2)The California State Association of Counties and the Regional
Council of Rural Counties counter saying there is still a
shortage of contractors for these jobs in rural counties. For
instance, the County of Tuolumne reports that for several
years of contracts there was only one bid from one large
contractor in the area. Because of this shortage of
contractors, there is not a competitive environment, which is
necessary to drive down project costs to a level that rural
counties can afford.
3)AB 1409 adds force account labor to subdivision (c) in order
to bring it in line with a California Court of Appeal case
from 1951. While it may superficially appear that subdivision
(c) of Section 20395 was added only in 1982, the legislative
history shows that, prior to 1982, those provisions were in
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subdivision (c) of Section 1075 of the Streets and Highways
Code, which was enacted in 1935. The California Court of
Appeal, in Copeland v. Kern County (1951) (105 Cal.App.2d
821), ruled that the words "day labor" in Section 1075 of the
Streets and Highways Code did not preclude regular trained
road crews of a county from engaging in work pursuant to its
provisions and did not contemplate that only inexperienced and
casual day laborers were to be hired. Furthermore, the Court
of Appeal ruled, a county could use regular road crews and
prisoners from county road camps, as well as casual employees,
that were available for this work. Therefore, in current law,
Section 20395 authorizes counties to use force account labor
as well as day labor for work done on county highways when the
county is purchasing the material.
4)AB 1409 still will allow counties to purchase the material and
have the work done by day labor or force account with one
condition: Counties would be required to first advertise and
request bids and then pass a resolution making a finding that
either no bids were received or all of the bids received
exceeded the cost of having the work done by day labor or
force account.
5)This bill is double-referred to the Committee on
Transportation.
REGISTERED SUPPORT / OPPOSITION :
Support
Construction Industry Force Account Council [SPONSOR]
Associated General Contractors of California
CA Chapter of the American Fence Contractors' Association
CA Fence Contractors' Association
CA-Nevada Conference of Operating Engineers
CA State Council of Laborers
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Construction Industry Force Account Council
Eagle Peak Rock & Paving, Inc.
Engineering & Utility Contractors Association
Engineering Contractors' Association
Flasher/Barricade Association
Golden State Builders Exchange
Marin Builders' Association
Martin General Engineering, Inc.
Northern CA District Council of Laborers
PCI
Southern CA Contractors Association
State Building and Construction Trades Council
Stimpel-Wiebelhaus Associates, Inc.
Opposition
CA State Association of Counties
Counties of Napa and San Luis Obispo
Regional Council of Rural Counties
San Joaquin County, Public Works Department
Analysis Prepared by : Jennifer R. Klein / L. GOV. / (916)
319-3958