BILL NUMBER: AB 2755 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Bonnie Lowenthal
FEBRUARY 19, 2010
An act to amend Sections 130051.9, 130051.11, 130232, and 130242
of, to amend and renumber Section 130051.21 of, and to repeal Section
130243 of, the Public Utilities Code, relating to public contracts.
LEGISLATIVE COUNSEL'S DIGEST
AB 2755, as introduced, Bonnie Lowenthal. Los Angeles County
Metropolitan Transportation Authority: contracting.
The County Transportation Commissions Act creates county
transportation commissions or authorities in Los Angeles, Orange,
Riverside, San Bernardino, and Ventura Counties, with specified
powers and duties. Existing law, with respect to those agencies,
generally requires purchase of all supplies, equipment, and
materials, and the construction of all facilities and works, when the
expenditure exceeds $25,000, to be by contract let to the lowest
responsible bidder. Existing law contains various alternative
provisions applicable solely to the Los Angeles County Metropolitan
Transportation Authority.
This bill would enact additional provisions applicable to the Los
Angeles County Metropolitan Transportation Authority. It would
require a contract to be let to the lowest responsible bidder when
the purchase price of the contraction of all facility exceeds
$100,000, rather than $25,000. The bill would authorize the authority
to award individual contracts not exceeding $8,000,000 per year,
providing for the issuance of job orders for construction work with
compensation for the work based on unit prices, and would define "job
order" and "unit price" for these purposes. The bill would authorize
a contractor of the authority to enter into subcontracts with
subcontractors that were not listed in the bid for the job order
contract, as specified.
Existing law requires the chief executive officer of the authority
to approve and award all contracts for construction, which approval
shall be based on the lowest responsible and responsive bid
submitted.
This bill would authorize the chief executive officer to delegate
this authority as necessary for the administrative efficiency of the
authority.
Existing law authorizes the authority to enter into design-build
contracts with private entities under which a single contract
incorporates some or all of the planning, design, permitting,
development, joint development, construction, construction
management, acquisition, leasing, installation, and warranty of all
or components of transit systems and facilities on real property
owned or to be owned by the authority, subject to certain
requirements.
This bill would make various modifications to the requirements for
design-build contracts. The bill would authorize the authority to
delegate the preparation of supporting documents and findings, and
award of contracts, under these provisions to an organizational unit
of the authority.
Existing law requires the inspector general of the authority to
prepare a prequalification questionnaire to be completed by each
construction company, engineering firm, consultant, legal firm,
product vendor, or other business entity seeking to contract with the
authority.
This bill would instead require the questionnaire to be prepared
by the authority with respect to business entities seeking to perform
a public works project in excess of $5,000,000, and would only
require the inspector general to review the questionnaire to ensure
it solicits specified information. The bill would authorize the
authority to prequalify prospective contractors and limit
consideration of bids or proposals to prequalified contractors.
Existing law requires the authority to adopt a specified change
order procedure for contracts awarded by the authority.
This bill would repeal these provisions.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 130051.9 of the Public Utilities Code is
amended to read:
130051.9. (a) The Los Angeles County Metropolitan Transportation
Authority shall appoint a full-time chief executive officer who shall
act for the authority under its direction and perform those duties
delegated by the authority.
(b) The chief executive officer shall be appointed to a term of
four years and shall be removed from office only upon the occurrence
of one or both of the following:
(1) A two-thirds majority of the members of the authority votes
for removal.
(2) The chief executive officer violates a federal or state law,
regulation, local ordinance, or policy or practice of the authority,
relative to ethical practices, including, but not limited to, the
acceptance of gifts or contributions.
(c) The chief executive officer shall approve and award all
contracts for construction, and that approval shall be based upon the
lowest responsible and responsive bid submitted. The chief
executive officer may delegate this authority as necessary for the
administrative efficiency of the authority.
(d) The Los Angeles County Metropolitan Transportation Authority
shall appoint a general counsel and board secretary.
SEC. 2. Section 130051.11 of the Public Utilities Code is amended
to read:
130051.11. (a) The Los Angeles County Metropolitan Transportation
Authority may determine its organizational structure, which may
include, but is not limited to, the establishment of departments,
divisions, subsidiary units, or similar entities. Any department,
division, subsidiary unit, or similar entity established by the
authority shall be referred to in this chapter as an "organizational
unit." The authority shall, at a minimum, establish the following
organizational units:
(1) A transit construction organizational unit to assume the
construction responsibilities for all exclusive public mass transit
guideway construction projects in Los Angeles County.
(2) An operating organizational unit with the following
responsibilities:
(A) The operating responsibilities of the former Southern
California Rapid Transit District on all exclusive public mass
transit guideway projects in the County of Los Angeles.
(B) The operation of bus routes operated by the former Southern
California Rapid Transit District, and all the duties, obligations,
and liabilities of the district relating to those bus routes.
(3) A transportation planning and programming organizational unit
with all planning responsibilities previously performed by the former
Southern California Rapid Transit District and the former Los
Angeles County Transportation Commission.
(b) Nothing in this section shall be construed to require specific
bus routes to be operated. The authority or the operating
organizational unit may make any adjustment with respect to bus
routes, bus services, or both, which is within the power of the
former Los Angeles County Transportation Commission, or the former
Southern California Rapid Transit District.
(c) Any obligations of the former Southern California Rapid
Transit District arising out of a collective bargaining agreement
entered into by the district shall be the exclusive obligations of
the Los Angeles County Metropolitan Transportation Authority. It is
the intent of the Legislature that the rights or obligations under
any collective bargaining agreement in existence on January 1, 1993,
not be enlarged or diminished by this section or any other provision
of the act which added this section.
(d) No collective bargaining agreement entered into by the former
Southern California Rapid Transit District on or after January 1,
1993, shall be effective unless approved by the Los Angeles County
Metropolitan Transportation Authority. The authority's approval of an
agreement shall cause the agreement to be binding upon the
authority.
(e) On and after April 1, 1993, any Any
reference to the former Southern California Rapid Transit
District in Article 10 (commencing with Section 30750) of Chapter 5
of Part 3 of Division 10 is deemed to refer to the Los Angeles County
Metropolitan Transportation Authority.
(f) The Los Angeles County Metropolitan Transportation Authority
may administratively delegate to an organizational unit or to its
chief executive officer any powers and duties it deems appropriate.
Powers and duties which that may be
delegated to an organizational unit include, but are not limited to,
the following:
(1) The power of eminent domain.
(2) Approval of contracts, except the final approval of labor
contracts.
(3) Hearing and resolving bid protests.
(4) Preparation of supporting documents and findings, and approval
of contracts, under Sections 130233, 130234, 130236, and
130237 , and 130242 within guidelines adopted by
the board of directors.
(g) The Los Angeles County Metropolitan Transportation Authority
shall establish a citizens' advisory council pursuant to subdivision
(d) of Section 130105.
SEC. 3. Section 130051.21 of the Public Utilities Code, as added
by Chapter 10 of the Statutes of 1996, is amended and renumbered to
read:
130051.21. 130051.22. (a) The Los
Angeles County Metropolitan Transportation Authority shall
require its inspector general to prepare a prequalification
questionnaire to be completed by each construction company,
engineering firm, consultant, legal firm, product vendor, and any
other business entity seeking to contract with the authority
for the furnishing of goods or services to perform a
public works project in excess of five million dollars ($5,000,000)
. The authority shall require its inspector general to
review the questionnaire shall to
ensure it solicits , at a minimum, solicit
information on all of the following subjects regarding the firm:
(1) Experience.
(2) Quality and timeliness of past performance.
(3) Reliability and responsibility.
(4) Compliance with equal employment requirements.
(5) Compliance with wage, hours, and other fair labor standards.
(6) Subcontractors used by the firm.
(7) Integrity of the firm and its key personnel.
(8) Gifts given, or contributions made, to members or alternate
members or employees of the authority.
(b) Neither the authority nor any of its organizational units
shall contract or do business with any responding firm that knowingly
provides false information in the questionnaire.
(c) Nothing in this section is intended to restrict the authority
from requiring a similar questionnaire to be completed by any other
construction company, engineering firm, consultant, legal firm,
product vendor, or any other business entity seeking to contract with
the authority.
(d) The authority may prequalify prospective contractors for
particular types of supplies, services, insurance, or construction,
and may limit consideration of bids or proposals to prequalified
contractors.
SEC. 4. Section 130232 of the Public Utilities Code is amended to
read:
130232. (a) Except as provided in subdivision (f), purchase of
all supplies, equipment, and materials, and the construction of all
facilities and works, when the expenditure required exceeds
twenty-five thousand dollars ($25,000), shall be by contract let to
the lowest responsible bidder. Notice requesting bids shall be
published at least once in a newspaper of general circulation. The
publication shall be made at least 10 days before the date for the
receipt of the bids. The commission, at its discretion, may reject
any and all bids and readvertise.
(b) Except as provided for in subdivision (f), whenever the
expected expenditure required exceeds one thousand dollars ($1,000),
but not twenty-five thousand dollars ($25,000), the commission shall
obtain a minimum of three quotations, either written or oral, that
permit prices and terms to be compared.
(c) Where the expenditure required by the bid price is less than
fifty thousand dollars ($50,000), the executive director may act for
the commission.
(d) All bids for construction work submitted pursuant to this
section shall be presented under sealed cover and shall be
accompanied by one of the following forms of bidder's security:
(1) Cash.
(2) A cashier's check made payable to the commission.
(3) A certified check made payable to the commission.
(4) A bidder's bond executed by an admitted surety insurer, made
payable to the commission.
(e) Upon an award to the lowest bidder, the security of an
unsuccessful bidder shall be returned in a reasonable period of time,
but in no event shall that security be held by the commission beyond
60 days from the date that the award was made.
(f) The following provisions apply only to the Los Angeles County
Metropolitan Transportation Authority:
(1) The contract shall be let to the lowest responsible bidder or,
in the authority's discretion, to the responsible bidder who
submitted a proposal that provides the best value to the commission
on the basis of the factors identified in the solicitation when the
purchase price of all supplies, equipment, and materials exceeds one
hundred thousand dollars ($100,000). "Best value" means the overall
combination of quality, price, and other elements of a proposal that,
when considered together, provide the greatest overall benefit in
response to requirements described in the solicitation documents. The
contract shall be let to the lowest responsible bidder when the
purchase price of the construction of all facilities exceeds
twenty-five one hundred thousand dollars
($25,000) ($100,000) .
(2) The authority shall obtain a minimum of three quotations,
either written or oral, that permit prices and terms to be compared
whenever the expected expenditure required exceeds three thousand
dollars ($3,000), but not one hundred thousand dollars ($100,000).
(3) The authority may purchase supplies, equipment, and materials
from a public auction sale, including public auctions held via the
Internet, using the procedures established for all other participants
in the public auction.
(4) The authority may participate in a procurement agreement
involving other public entities that is identified by a procuring
public entity or entities as a cooperative procuring agreement from
which other public entities may make purchases or enter into
contracts, and the authority may procure, and enter into contracts
for, items purchased pursuant to that procurement agreement,
notwithstanding that the authority may not be the procuring public
entity, provided the procurement agreement is awarded or entered into
by either of the following:
(A) One or more public entities or an organization of public
entities, which may include the authority.
(B) A federal, state, or local public entity.
(5) (A) Notwithstanding any other provision of this article, the
authority may award individual contracts, none of which shall exceed
eight million dollars ($8,000,000) per year, providing for the
issuance of job orders for construction work with compensation for
the work based on unit prices. No contract awarded under this
paragraph may provide for the issuance of any single job order that
would exceed one million dollars ($1,000,000). The maximum amounts
set forth in this paragraph shall be adjusted annually to reflect the
percentage change in the California Consumer Price Index. The
maximum term of a contract issued pursuant to this paragraph shall
not exceed one year, plus four option terms of one year each. The
contracts shall be awarded to the lowest responsive and responsible
bidder. The lowest bid shall be based upon the bidder's percentage
adjustment to the unit prices for units of work listed and described
either in (i) a book of unit prices for units of work that is an
industry standard and is incorporated in the authority's invitation
for bid, or (ii) a schedule of unit prices for units of work
contained in the authority's invitation for bid.
(B) Notwithstanding Chapter 4 (commencing with Section 4100) of
Part 1 of Division 2 of the Public Contract Code, subject to the
approval of the authority, a contractor may enter into subcontracts
with subcontractors that were not listed in the bid for the job order
contract, but are listed in the contractor's proposal for a job
order under the contract.
(C) For purposes of this paragraph:
(i) "Job order" means an order issued by the authority to a
contractor to perform construction work under a contract awarded
under this paragraph.
(ii) "Unit price" means the amount paid for a single unit of an
item of work.
SEC. 5. Section 130242 of the Public Utilities Code is amended to
read:
130242. (a) In addition to the other powers it possesses,
and notwithstanding any other provision of law, the authority
may enter into contracts with private entities, the scope of which
may combine within a single contract all or some of the planning,
design, permitting, development, joint development, construction,
construction management, acquisition, leasing, installation, and
warranty of all or components of (1) transit systems, including,
without limitation, passenger loading or intermodal station
facilities, and (2) facilities on real property owned or to be owned
by the authority.
(b) The authority may award contracts pursuant to subdivision (a)
after a finding, by a two-thirds vote of the members of the
authority, that awarding the contract under this section will achieve
for the authority, among other things, certain private sector
efficiencies in the integration of design, project work, and
components.
(c) A contract awarded pursuant to this section may include
operation and maintenance elements, if the inclusion of those
elements (1) is necessary, in the reasonable judgment of the
authority, to assess vendor representations and warranties,
performance guarantees, or life cycle efficiencies, and (2) does not
conflict with collective bargaining agreements to which the authority
is a party.
(d) Any construction, alteration, demolition, repairs or other
works of improvement performed under a contract awarded pursuant to
this section shall be considered a public works project subject to
Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of
the Labor Code, and shall be enforced by the Department of Industrial
Relations in the same way it carries out this responsibility under
the Labor Code.
(e) A contract under this section shall be let to the lowest
responsible bidder whose bid is responsive to the criteria set forth
in the invitation for bids bid, or, in the
authority's discretion, to a contractor chosen by a competitive
bidding process that employs selection criteria in addition to cost.
Any design work performed pursuant to this section shall be prepared
and signed by an architect certificated pursuant to Chapter 3
(commencing with Section 5500) of Division 3 of the Business and
Professions Code . Notice requesting bids shall be published at
least once in a newspaper of general circulation. The publication
shall be made at least 60 days before the receipt of the bids. The
authority, at its discretion, may reject any and all bids, and may
readvertise. All bids and price proposals submitted
pursuant to this section shall be presented under sealed cover and
shall be accompanied by one of the following forms of bidder
security: (1) cash, (2) a cashier's check made payable to the
authority, (3) a certified check made payable to the authority, or
(4) a bidder's bond executed by an admitted surety insurer, made
payable to the authority. Upon an award to the lowest
responsible bidder , the security of each unsuccessful
bidder shall be returned in a reasonable period of time, but in no
event shall that security be held by the authority beyond 60 days
from the time the award is made.
(f) When the design of portions of the project permits the
selection of subcontractors, the contractor shall competitively bid
those portions. The contractor shall provide to the authority a list
of subcontractors whose work is in excess of one-half of 1 percent of
the total project cost as soon as the subcontractors are identified.
Once listed, the subcontractors shall have the rights provided in
the Subletting and Subcontracting Fair Practices Act (Chapter 4
(commencing with Section 4100) of Part 1 of Division 2 of the Public
Contract Code).
SEC. 6. Section 130243 of the Public Utilities Code is repealed.
130243. The Los Angeles County Metropolitan Transportation
Authority shall adopt a change order procedure for contracts awarded
by the authority that includes each of the following requirements:
(a) When a change order is proposed, the contract administrator of
the authority shall be notified and shall determine whether a change
order is required. After consulting with the general counsel of the
authority and appropriate technical advisers, the contract
administrator shall either approve or disapprove the proposed
contract change order.
(b) The general counsel of the authority shall be consulted on the
proposed change order at the earliest possible time to consider and
render advice on the legal implications of the proposed change. The
contract administrator shall not approve a proposed change order
unless the general counsel recommends changing the terms of the
contract.
(c) The contract administrator shall require the contractor to
submit certified cost and pricing data for the proposed change, and
shall require an internal fiscal audit of any proposed change order
when cost and pricing data would be required under federal
acquisition regulations contained in Subpart 15.4 of Part 15 of
Subchapter C of Chapter 1 of Title 48 of the Code of Federal
Regulations.
(d) The opinions of informed individuals working on the contract
who oppose the adoption of a proposed change order shall be
documented and be taken into consideration by the authority's change
control board when determining whether a contract change is
warranted.