BILL NUMBER: SB 1549 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 30, 2012
INTRODUCED BY Senator Vargas
FEBRUARY 24, 2012
An act to add Chapter 6.6 (commencing with Section 6950) to Part 1
of Division 2 of the Public Contract Code, relating to public
contracts, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
SB 1549, as amended, Vargas. Transportation projects:
construction Manager/General Contractor alternative
project method. delivery methods.
Existing law sets forth the requirements for the solicitation and
evaluation of bids and the awarding of contracts by state agencies
for projects, as specified, and for local agencies for public works
contracts, as specified. This bill would, upon authorization
by the California Transportation Commission, allow a consolidated
San Diego regional transportation entity, as specified, or the
Department of Transportation to engage in a Construction
Manager/General Contractor project delivery method, as specified, for
up to 20 total projects for either local street or road, bridge,
tunnel, or public transit projects within the jurisdiction of the
local transportation entity or state highway, bridge, or tunnel
projects by the Department of Transportation. This
bill would allow the San Diego Association of Governments to utilize
alternative project delivery methods, as defined, for public transit
projects within its jurisdiction. The bill would require
a transportation entity, as defined, the San
Diego Association of Governments to pay fees related to
prevailing wage monitoring and enforcement into the State Public
Works Enforcement Fund, a continuously appropriated fund, except as
specified, and, thus, would make an appropriation. The bill would
also , upon co mpletion of a project, require a
progress report to be submitted by the transportation
agency to the commission every year following the award of a contract
under these provisions, and would require the commission to submit
an annual report to the Legislature that includes the information in
the report submitted by the transportation agency, as specified.
San Diego Association of Governments to its governing
board and would require the report to be made available on its
Internet Web site. This bill would require specified
information to be verified under oath, thus imposing a state-mandated
local program by expanding the scope of an existing crime. The bill
would provide that its provisions are severable.
This bill would make legislative findings and declarations as to
the necessity of a special statute for San Diego regional
transportation entities.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 6.6 (commencing with Section 6950) is added to
Part 1 of Division 2 of the Public Contract Code, to read:
CHAPTER 6.6. THE ALTERNATIVE PROJECT DELIVERY
DEMONSTRATION PROGRAM: CONSTRUCTION MANAGER/GENERAL
CONTRACTOR AUTHORITY
6950. The Legislature finds and declares all of the following:
(a) The alternative public works project delivery methods
authorized under this chapter should be evaluated for the purposes of
exploring whether the potential exists for reduced project costs,
expedited project completion, or design features that are not
achievable through the traditional project delivery methods.
(b) The design sequencing and Construction Manager/General
Contractor project delivery methods rely on existing design-bid-build
and design-build procurement methods respectively and have been
successfully used by both public and private sector entities in
California and other states for over a decade on projects that
require a quick startup as they allow construction to begin before
the design plans are complete for the entire project.
(c) Both methods also have the benefit of allowing for earlier
collaboration between the project owner and construction contractor.
A demonstration program for alternative project delivery methods will
allow for a careful examination of the benefits and challenges
associated with these methods.
(d) This chapter shall not be deemed to provide a preference for
these project delivery methods over other delivery methodologies.
6951. For purposes of this chapter, the following definitions
apply:
(a) "Commission" means the California Transportation Commission.
(a) "Alternative project delivery method" means either
Construction Manager/General Contractor method or design sequencing.
(b) "Construction Manager/General Contractor method" or "CMGC"
means a project delivery method using a best value procurement
process in which a construction manager is procured to provide
preconstruction services during the design phase of the project and
construction services during the construction phase of the project.
The contract for construction services may be entered into at the
same time as the contract for preconstruction services, or at a later
time. The execution of the design and the construction of the
project may be in sequential phases or concurrent phases.
(c) "Construction manager" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting and engineering services as needed pursuant to a CMGC
contract.
(d) "Design sequencing" means a method of project delivery
using the design-bid-build contracting process
that enables the sequencing of design activities to permit each
construction phase to commence when 30 percent or more of
the design for that phase is complete, instead of requiring
design for the entire project to be completed before commencing
construction.
(e) "Department" means the Department of Transportation as
established under Part 5 (commencing with Section 14000) of Division
3 of the Government Code.
(f) "Local transportation entity" "San
Diego Association of Governments" means the consolidated agency
created pursuant to Chapter 3 (commencing with Section 132350) of
Division 12.7 of the Public Utilities Code.
(g) "Transportation entity" means the department or a local
transportation entity.
6952. (a) Subject to the limitations of this chapter, a
local transportation entity, if authorized by the commission,
the San Diego Association of Governments may
utilize the design sequencing or CMGC methods of
alternative project delivery for projects that
may be for local street or road, bridge, tunnel, or
methods for public transit projects within the jurisdiction of
the entity the San Diego Association of
Governments .
(b) Subject to the limitations of this chapter, the department, if
authorized by the commission, may utilize the design sequencing or
CMGC methods of procurement for state highway, bridge, or tunnel
projects.
(b) The San Diego Association of Governments may enter into an
alternative project delivery method contract pursuant to this chapter
if, after evaluation of the traditional design-bid-build process of
construction and of the alternative project delivery method in a
public meeting, the San Diego Association of Governments makes a
written finding that use of the alternative project delivery method
on the specific project under consideration will accomplish one or
more of the following objectives: reduce project costs, expedite the
project's completion, or provide features not achievable through the
design-bid-build method. This finding must be made prior to the San
Diego Association of Governments entering into an alternative project
delivery method contract. In the alternative project delivery method
proposal, the written findings shall be included as part of any
application for state funds pursuant to this chapter.
6953. (a) Up to 20 projects shall be authorized under this
chapter. The transportation entities authorized to use the design
sequencing and CMGC project delivery methods pursuant to this chapter
shall endeavor to select projects that vary in size, type, and
geographical location.
(b) The commission shall establish a peer review committee to
conduct an evaluation of the projects selected to utilize the
alternative project delivery methods under this chapter.
6954. 6953. (a) Except as specified
in subdivision (b), the transportation entity
the San Diego Association of Governments shall comply with
subdivision (f) of Section 1771.5 of the Labor Code and shall
reimburse the Department of Industrial Relations for its reasonable
and directly related costs of performing prevailing wage monitoring
and enforcement on public works projects pursuant to rates
established by the department as set forth in subdivision (h) of that
section. All moneys collected pursuant to this subdivision shall be
deposited in the State Public Works Enforcement Fund, created by
Section 1771.3 of the Labor Code, and shall be used only for
enforcement of prevailing wage requirements on those projects.
(b) In lieu of complying with subdivision (a), the
transportation entity the San Diego Association of
Governments may elect to operate a labor compliance program
approved by the Department of Industrial Relations to monitor and
enforce prevailing wage requirements on the project if it requests
and receives approval from the department to use its own labor
compliance program or it enters into a collective bargaining
agreement that binds all of the contractors performing work on the
project and that includes a mechanism for resolving disputes about
the payment of wages.
6955. 6954. (a) All CMGC contracts
awarded pursuant to this chapter shall be subject to the procurement
method requirements for design-build contracts set forth in Chapter
6.5 (commencing with Section 6800) of Part 1 of Division 2, except
insofar as they may conflict with the provisions of this chapter. The
limitation on the number of design-build projects authorized by that
chapter shall not apply to projects authorized under this chapter.
(b) All contracts awarded using the design sequencing
contracts awarded pursuant to this chapter
project delivery method shall be subject to Chapter 10
(commencing with Section 4525) and Chapter 10.1 (commencing with
Section 4529.10) of Division 5 of the Government Code and Part 1
(commencing with Section 1100) of, Chapter 1 (commencing with Section
10100) of Part 2 of, and Part 3 (commencing with Section 20100) of,
Division 2 of this code, as applicable, except that construction may
be commenced as specified in subdivision (d) of Section 6951.
6956. 6955. (a)
If a contract for CMGC services is entered into pursuant to
this chapter and includes preconstruction services by the
construction manager, the transportation entity
the San Diego Association of Governments shall enter into
a written contract with the construction manager for preconstruction
services, under which the transportation entity
the San Diego Association of Governments shall
pay the construction manager a fee for preconstruction services in an
amount agreed upon by the transportation entity
the San Diego Association of Governments and the
construction manager. The preconstruction services contract may
include fees for services to be performed during the contract period;
provided, however, the transportation entity
the San Diego Association of Governments shall not request or
obtain a fixed price or a guaranteed maximum price for the
construction contract from the construction manager or enter into a
construction contract with the construction manager until after
the transportation entity the San Diego
Association of Governments has entered into a services
contract. Every A preconstruction
services contract shall provide for the subsequent negotiation for
construction of all or any discreet discrete
phase or phases of the project and shall provide for
the awarding transportation entity the San Diego
Association of Governments to own the design plans and other
preconstruction services work product. A
(b) A contract for construction
services will be awarded after the plans have been sufficiently
developed and either a fixed price or a guaranteed maximum price has
been successfully negotiated. In the event that a fixed price or a
guaranteed maximum price is not negotiated, the
transportation entity the San Diego Association of
Governments may award the contract for construction services
utilizing any other procurement method authorized by law.
(c) Construction shall not commence on any phase, package, or
element until the San Diego Association of Governments and the
construction manager agree in writing on either a fixed price or
guaranteed maximum price that the San Diego Association of
Governments will pay for the construction to be commenced and the
construction schedule for the project. The construction manager shall
perform not less than 30 percent of the work covered by the fixed
price or guaranteed maximum price agreement reached. Work that is not
performed directly by the construction manager shall be bid to
subcontractors pursuant to Section 6956.
6956. All subcontractors bidding on contracts pursuant to this
chapter shall be afforded the protections contained in Chapter 4
(commencing with Section 4100).
6957. (a) Notwithstanding any other provision of this chapter,
for a project authorized under this chapter that will be constructed
on state-owned right-of-way, the department is the responsible agency
for the performance of project development services, including
performance specifications, preliminary engineering, prebid services,
the preparation of project reports and environmental documents, and
construction inspection services. The department is also the
responsible agency for the preparation of documents that may include,
but need not be limited to, the size, type, and desired design
character of the project, performance specifications covering quality
of materials, equipment, and workmanship, preliminary plans, and any
other information deemed necessary to describe adequately the needs
of the transportation entity.
(b) The department may use department employees or consultants to
perform the services described in subdivision (a), consistent with
Article XXII of the California Constitution. Department resources,
including personnel requirements, necessary for the performance of
those services shall be included in the department's capital outlay
support program for workload purposes in the annual Budget Act.
6958. Nothing in this chapter affects, expands, alters, or limits
any rights or remedies otherwise available at law.
6959. (a) Not later than June 30 of each year after a
contract is awarded Upon completion of a project
using the CMGC or design sequencing project
an alternative project delivery method, the
awarding transportation entity the San Diego
Association of Governments shall submit
prepare a progress report to the commission
its governing body . The progress report shall include,
but shall not be limited to, all of the following information:
(1) A description of the project.
(2) The entity that was awarded the project.
(3) The estimated and actual costs of the project.
(4) The estimated and actual schedule for project completion.
(5) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the project, including,
but not limited to, the resolution of the protests.
(6) An assessment of the prequalification process and criteria
utilized under this chapter if the design build
CMGC procurement method is used.
(7) A description of the labor compliance program required under
Section 6954 6953 and an assessment of
the impact of this requirement on a project.
(8) A description of the method used to evaluate the bid or
proposal, including the weighting of each factor and an assessment of
the impact of this requirement on a project.
(9) A description of any challenges or unexpected problems that
arose during the construction of the project and a description of the
solutions that were considered and ultimately implemented to address
those challenges and problems.
(10) Recommendations to improve the alternative project delivery
methods authorized under this chapter.
(b) (1) The commission shall submit an annual report to the
Legislature that includes the information provided pursuant to
subdivision (a).
(2) A report to be submitted pursuant to paragraph (1) shall be
submitted in compliance with Section 9795 of the Government Code.
(b) The progress report shall be made available on the San Diego
Association of Governments' Internet Web site.
6960. The provisions of this chapter are severable. If any
provision of this chapter or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
Contracts awarded pursuant to this section shall be valid until the
project is completed.
SEC. 2. The Legislature finds and declares that a special law is
necessary and that a general law cannot be made applicable within the
meaning of Section 16 of Article IV of the California Constitution
because of the unique need for alternative contracting authority for
local public transportation projects under the
jurisdiction of San Diego regional transportation entities
the San Diego Association of Governments .
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.