BILL ANALYSIS
AB 1409
Page 1
REPLACE: Corrected by Consultant - June 3, 2009
ASSEMBLY THIRD READING
AB 1409 (John A. Perez)
As Amended June 2, 2009
Majority vote
LOCAL GOVERNMENT 6-1 TRANSPORTATION 14-0
-----------------------------------------------------------------
|Ayes:|Caballero, Knight, Davis, |Ayes:|Eng, Jeffries, |
| |Duvall, Krekorian, | |Blumenfield, Buchanan, |
| |Skinner | |Conway, Furutani, |
| | | |Galgiani, Garrick, Bonnie |
| | | |Lowenthal, Miller, |
| | | |Niello, John A. Perez, |
| | | |Solorio, Torlakson |
|-----+--------------------------+-----+--------------------------|
|Nays:|Arambula | | |
| | | | |
-----------------------------------------------------------------
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 when the work:
1)Involves the purchasing of material and having the work done by
day labor, defined as nonpermanent, part-time, or temporary
employees who are not represented by a collective bargaining
unit, if the board of supervisors does both of the following:
a) Advertises and request bids; and,
b) 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.
2)Involves the purchasing of material and having the work done by
force account, which is defined as full-time or permanent county
employees or part-time or temporary employees who are
represented by a collective bargaining unit.
AB 1409
Page 2
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 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 : The author states that, when Public Contract Code
Section 20395 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
AB 1409
Page 3
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.
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.
While it may superficially appear that Public Contract Code
Section 20395 subdivision (c) was added only in 1982, the
legislative history shows that, prior to 1982, those provisions
were in Streets and Highways Code Section 1075 subdivision (c),
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 Streets and Highways Code Section 1075
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.
This bill will still allow counties to purchase the material and
have the work done by day labor 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. This bill would
overturn the 1951 Court of Appeal ruling that states day labor for
purposes of Public Contract Code Section 20395 would no longer
include force account. Additionally, this bill also adds an
authorization for counties to purchase the material and have the
work done by force account without the requirement of having to
first advertise and request bids. Furthermore, force account is
defined as full-time or permanent county employees or part-time or
temporary employees who are represented by a collective bargaining
unit while day labor is defined as nonpermanent, part-time, or
temporary employees who are not represented by a collective
AB 1409
Page 4
bargaining unit.
Analysis Prepared by : Jennifer R. Klein / L. GOV. / (916)
319-3958 FN: 0001407