BILL NUMBER: SB 1457 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 23, 2010
INTRODUCED BY Senator Cogdill
FEBRUARY 19, 2010
An act to amend Section 11120 of the Government Code,
relating to open meetings. An act to add Section
14661.2 to the Government Code, relating to public contracts.
LEGISLATIVE COUNSEL'S DIGEST
SB 1457, as amended, Cogdill. Bagley-Keene Open Meeting
Act. State facilities: alternative project delivery
methods.
Existing law establishes procedures governing design-bid-build
methods of procurement, but permits the Director of General Services,
when authorized by the Legislature, to use the design-build
procurement process for state office facilities, other buildings,
structures, and related facilities. Existing law further requires the
director, prior to contracting for the procurement of state office
facilities and other state buildings and structures, to prepare a
program setting forth the scope of the project and to establish a
competitive prequalification process, as provided.
This bill would authorize the Director of General Services to
undertake public works of improvement by using other alternative
methods of procurement, as prescribed. The bill would authorize the
director, whenever a public works appropriation is made for
acquisition, preliminary plans, working drawings, or the construction
phase of a project, to determine the most appropriate delivery
method for that project. The bill would require the department to
follow specified criteria for those contracts and would set forth the
applicable labor and contracting standards, including payment
procedures, delivery methods, and remedies in case of default.
Existing law creates the Bagley-Keene Open Meeting Act, which
requires that all meetings of a state body be open and public and
that all persons be permitted to attend any meeting of a state body,
with specified exceptions. Existing law makes a declaration of public
policy in this regard.
This bill would make a technical, nonsubstantive change in the
declaration of public policy described above.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all
of the following:
(a) It is in the best interest of the State of California to
construct state offices and other necessary program facilities in a
cost-efficient manner that represents the best overall value to the
taxpayers and has the greatest benefit to our state's economy.
(b) Alternative project delivery methods can be an attractive
option to departments in comparison to the existing three-step
(design-bid-build) process.
(c) The State of California should be able to utilize
cost-effective options for the delivery of public works projects, in
accordance with the national trend, which include authorizations in
California to allow public entities to utilize alternative delivery
methods.
SEC. 2. Section 14661.2 is added to the
Government Code , to read:
14661.2. (a) Notwithstanding any other law, the Department of
General Services may undertake public works of improvement by using
any of the methods set forth in this section. The availability of
these alternative methods shall not preclude the use of other methods
of project delivery.
(b) For purposes of this section, the following definitions apply:
(1) "Construction manager at risk contract" means a competitively
bid contract by a department with an individual, partnership, joint
venture, corporation, or other recognized legal entity, which is
appropriately licensed in this state and which guarantees the cost of
a project and furnishes construction management services, including,
but not limited to, preparation and coordination of bid packages,
scheduling, cost control, value engineering, evaluation,
preconstruction services, and construction administration.
(2) "Department" means the Department of General Services as to
any project under the jurisdiction of that department, or its
successor department or agency.
(3) "Director" means the Director of General Services.
(4) "Job order contract" means a competitively bid, fixed priced,
indefinite quantity procurement contract issued by a department to a
job order contractor for a definite project or work, as compiled from
a catalog of construction tasks to be performed pursuant to a job
order contract. Each job order under a job order contract shall not
exceed the total cost limit established by the Director of Finance
pursuant to subdivision (b) of Section 10105 of the Public Contract
Code.
(c) Whenever an appropriation for a public works project is made
for acquisition, preliminary plans, working drawings, or the
construction phase, the director shall determine the most appropriate
delivery method for that project. The director shall consider the
following criteria:
(1) The nature of the project.
(2) The project delivery schedules.
(3) Overall project cost, including life cycle costs during the
operational phase following construction.
(4) The ability to achieve design, construction, or operational
features not achievable through the design-bid-build method.
(5) Shifting owner risk from the department to the design or
contracting entities.
(6) Minimizing change orders.
(7) Other criteria determined by the director to be critical to
the project based on specific facility program.
(d) Contracts entered into using alternative delivery methods
pursuant to this section are subject to all of the following:
(1) Any entity entering into such a contract shall not be exempt
from the provisions of the Labor Code.
(2) Public notice of a project shall be provided in accordance
with Sections 10140 and 10141 of the Public Contract Code.
(3) The contract shall provide for the filing of separate
performance and payment bonds by the contractor in accordance with
Sections 3247, 3248, 3249, 3250, 3251, and 3252 of the Civil Code,
and Sections 7103 and 7200 of the Public Contract Code.
(4) Each bond shall be in a sum as provided in Section 3248 of the
Civil Code.
(5) The payment bond shall secure the payment of the claims of
laborers, mechanics, or material men employed on the work under the
contract and shall contain all other provisions required by law.
(6) Any payment or performance bond written for the purpose of
alternative delivery methods shall be written using a bond form
developed by the department pursuant to subdivision (g) of Section
14661.1 of the Government Code. The purpose of this subdivision is to
promote uniformity of bond forms to be used for alternative delivery
system projects throughout the state. The performance bond shall
guarantee the faithful performance of the contract by the contractor.
In lieu of payment and performance bonds the director may elect to
purchase separate insurance to cover the performance of the
contractor.
(7) No payment shall be made upon the contract to the contractor
or any assignee of the contractor until any order by the director
that a sufficient surety be substituted on the bond or that a new,
additional, or supplemental bond be given, is satisfied. No
cancellation of or withdrawal of a surety from a bond is effective
unless approved by the director.
(8) The contract shall contain a provision regarding the time when
the whole or any specified portion of the work contemplated shall be
completed, and shall provide that for each day completion is delayed
beyond the specified time, the contractor shall forfeit and pay to
the state a specified sum of money to be deducted from any payments
due or to become due to the contractor. The sum so specified is valid
as liquidated damages, unless manifestly unreasonable under the
circumstances existing at the time the contract was made. Any
contract pursuant to this section may also provide for the payment of
extra compensation to the contractor as a bonus for completion prior
to the specified time. The provision for extra compensation, if
used, shall be included in the specifications, which shall clearly
set forth the basis for the payment. Inclusion of a bonus for early
completion clause shall not be used as a reason for augmentation of
the public work appropriation.
(9) Contract payments shall be made as prescribed in Sections
10261 and 10261.5 of the Public Contract Code.
(10) Any contractor or subcontractor shall pay his or her
subcontractors in accordance with Sections 10262 and 10262.5 of the
Public Contract Code.
(11) (A) If the director determines that a contractor has failed
to supply an adequate workforce or material of proper quality, or has
failed to comply with Section 10262 of the Public Contract Code, or
has failed in any other respect to complete the work with the
diligence and force specified by the contract, the director may do
either of the following:
(i) After written notice of at least five days to the contractor
specifying the defaults to be remedied, provide any necessary labor
or materials and deduct the cost from any money due or to become due
to the contractor under the contract.
(ii) If the director considers that the failure is sufficient
ground for termination, the director may give written notice of at
least five days to the contractor and the contractor's sureties, that
if the defaults are not remedied, the contractor's control over the
work shall be terminated.
(B) If the defaults are not remedied within the time specified in
the notice, the contractor's control shall terminate as of the
expiration of that time.
(12) A contract entered into pursuant to this section shall comply
with Section 10263 of the Public Contract Code with respect to the
substitution of securities for any moneys withheld by a public agency
to ensure performance under a contract.
(e) Before entering into a contract for a project pursuant to this
section, the director shall make arrangements for preparation of the
following:
(1) Complete plans and specifications setting forth the directions
needed to enable a competent mechanic or other builder to implement
them.
(2) The necessary documents for the solicitation of bids for the
construction manager at risk contract method, including
prequalification standards, schematic plans, and outline
specifications indicating the general scope of the project and the
designation of fees and other fixed costs upon which prequalified
contractors shall be invited to submit competitive bids, which shall
serve as the basis for selection.
(3) The necessary documents for the solicitation of bids for the
job order contract method, including prequalification standards,
schematic plans, and outline specifications indicating the general
scope of the project and the designation of fees and other fixed
costs upon which prequalified contractors shall be invited to submit
bids, which shall serve as the basis for selection.
(f) Notwithstanding any provision of the Public Contract Code,
Chapter 3 (commencing with Section 15815) of Part 10b of Division 3
of this code, or any other law, the department shall establish
policies and procedures to implement this section.
SECTION 1. Section 11120 of the Government Code
is amended to read:
11120. It is the public policy of this state that public agencies
exist to aid in the conduct of the people's business and that the
proceedings of public agencies be conducted openly so that the public
may remain informed.
In enacting this article the Legislature finds and declares that
it is the intent of the law that actions of state agencies be taken
openly and that their deliberation be conducted openly.
The people of this state do not yield their sovereignty to the
agencies which serve them. The people, in delegating authority, do
not give their public servants the right to decide what is good for
the people to know and what is not good for them to know. The people
insist on remaining informed so that they may retain control over the
instruments they have created.
This article shall be known and may be cited as the Bagley-Keene
Open Meeting Act.