BILL NUMBER: SB 1516	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JUNE 18, 2012
	AMENDED IN SENATE  MAY 22, 2012
	AMENDED IN SENATE  APRIL 9, 2012

INTRODUCED BY   Senator Leno

                        FEBRUARY 24, 2012

   An act to amend Section 3400 of the Public Contract Code, relating
to public contracts.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1516, as amended, Leno. Public contracts: bids: "or equal"
materials or service.
   Existing law prohibits, except in specified circumstances, a state
agency, political subdivision, municipal corporation, district, or
public officer responsible for letting a public works contract from
drafting bid specifications for that contract in a manner that limits
the bidding to any one concern or product, unless the specification
is followed by the words "or equal." Existing law requires that these
bid specifications provide a period of time prior to or after, or
prior to and after, the award of the contract to allow the contractor
to submit data that demonstrates that a concern or product to be
provided under the contract is equal to the concern or product
identified in the bid specification.
   This bill would  additionally prohibit, except in
specified circumstances, these bid specifications from requiring a
bidder to provide submission of data substantiating a request for a
substitution of "an equal" item prior to the bid or proposal
submission deadline. The bill would exclude from this prohibition
contracts with an agency of the state, a public officer of the state,
or a person charged with the letting of contracts for an agency of
the state   instead require these bid specifications to
provide a period of time after the award of the contract for the
submission of data substantiating a request for a substitution of "an
equal" item, but would allow a solicitation for bids to require the
submission of data substantiating a request for substitution of an
equal item prior to the bid submission deadline only if the
solicitation establishes a procedure for submission, evaluation, and
determination, as provided. This bill would require the  
proponent of a proposed equal item submitted under that procedure to
bear the burden of proof that the proposed item is equal to what is
required by the bid specific   ations  .
   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 3400 of the Public Contract Code is amended to
read:
   3400.  (a) The Legislature finds and declares that it is the
intent of this section to encourage contractors and manufacturers to
develop and implement new and ingenious materials, products, and
services that function as well, in all essential respects, as
materials, products, and services that are required by a contract,
but at a lower cost to taxpayers.
   (b) (1) No agency of the state, nor any political subdivision,
municipal corporation, or district, nor any public officer or person
charged with the letting of contracts for the construction,
alteration, or repair of public works, shall draft or cause to be
drafted specifications for bids, in connection with the construction,
alteration, or repair of public works,  (1)  
(A)  in a manner that limits the bidding, directly or
indirectly, to any one specific concern, or  (2) 
 (B)  calling for a designated material, product, thing, or
service by specific brand or trade name unless the specification is
followed by the words "or equal" so that bidders may furnish any
equal material, product, thing, or service. In applying this section,
the specifying agency shall, if aware of an equal product
manufactured in this state, name that product in the specification.
Specifications shall provide a period of time  prior to or
after, or prior to and after,   after  the award of
the contract for submission of data substantiating a request for a
substitution of "an equal" item. If no time period is specified, data
may be submitted any time within 35 days after the award of the
contract.
   (2) (A)  Notwithstanding paragraph (1), specifications
shall not require a bidder to provide submission of data
substantiating a request for a substitution of "an equal" item prior
to the bid or proposal submission deadline.  
Notwithstanding paragraph (1), the solicitation for bids may require
submission of   data substantiating a request for
substitution of an equal item prior   to the bid submission
deadline, so long as the solicitation establishes a procedure for (A)
the submission of that information by any potential contractor,
subcontractor, supplier, or manufacturer of any tier, (B) the
evaluation of the submitted information, and (C) the determination of
acceptability, or not, at least 10 business days before the bid
submission deadline. Everything submitted under the procedure, all
products of the evaluation, and the determination shall be
confidential, proprietary information, and, to the extent required to
be produced under the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code), shall not be disclosed until the contract is
awarded.  
   (B) A proponent whose proposed equal item is not accepted under a
prebid submission procedure shall have standing to challenge that
decision in an action for declaratory relief, but that action shall
not affect the award of the contract.  
   (C) The proponent of a proposed equal item submitted under the
procedure described in subparagraph (A) bears the burden of proof
that the proposed item is equal to what is required by the bid
specifications. In any litigation over whether a proposed equal item
submitted under the procedure described in subparagraph (A) is equal
to what is required by the specifications, the prevailing party shall
recover reasonable attorney's fees and expert costs.  
   (B) This paragraph shall not apply to contracts with an agency of
the state, a public officer of the state, or a person charged with
the letting of contracts for an agency of the state. 
   (c) Subdivision (b) is not applicable if the awarding authority,
or its designee, makes a finding that is described in the invitation
for bids or request for proposals that a particular material,
product, thing, or service is designated by specific brand or trade
name for any of the following purposes:
   (1) In order that a field test or experiment may be made to
determine the product's suitability for future use.
   (2) In order to match other products in use on a particular public
improvement either completed or in the course of completion.
   (3) In order to obtain a necessary item that is only available
from one source.
   (4) (A) In order to respond to an emergency declared by a local
agency, but only if the declaration is approved by a four-fifths vote
of the governing board of the local agency issuing the invitation
for bid or request for proposals.
   (B) In order to respond to an emergency declared by the state, a
state agency, or political subdivision of the state, but only if the
facts setting forth the reasons for the finding of the emergency are
contained in the public records of the authority issuing the
invitation for bid or request for proposals.