BILL NUMBER: SB 1549 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 20, 2012
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: alternative
project 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
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 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
completion of a project, require a progress report to be submitted by
the 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 no
. 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 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) "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 that
enables the sequencing of design activities to permit each
construction phase to commence when 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) "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.
6952. (a) Subject to the limitations of this chapter, the San
Diego Association of Governments may utilize the alternative project
delivery methods for public transit projects within the jurisdiction
of the San Diego Association of Governments.
(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) Except as specified in subdivision (b), 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 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.
6954. 6953. (a) All CMGC contracts
awarded pursuant to this chapter shall be subject to the procurement
method requirements for design-build
professional services contracts set forth in Chapter
6.5 (commencing with Section 6800) of Part 1 of Division 2
Section 132352.4 of the Public Utilities Code , 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 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.
6955. 6954. (a) If a contract for
CMGC services is entered into pursuant to this chapter and includes
preconstruction services by the construction manager, the San Diego
Association of Governments shall enter into a written contract with
the construction manager for preconstruction services, under which
the San Diego Association of Governments shall pay the construction
manager a fee for preconstruction services in an amount agreed upon
by 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 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
San Diego Association of Governments has entered into a services
contract. A preconstruction services contract shall provide for the
subsequent negotiation for construction of all or any discrete phase
or phases of the project and shall provide for the San Diego
Association of Governments to own the design plans and other
preconstruction services work product.
(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 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
6955 .
6956. 695 5. All
subcontractors bidding on contracts pursuant to this chapter shall be
afforded the protections contained in Chapter 4 (commencing with
Section 4100).
6957. 6956. (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. 6957. Nothing in this chapter
affects, expands, alters, or limits any rights or remedies otherwise
available at law.
6959. 6958. (a) Upon completion of a
project using an alternative project delivery method, the San Diego
Association of Governments shall prepare a progress report to 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 CMGC procurement method is used.
(7) A description of the labor compliance program required under
Section 6953 and an assessment of the impact of this requirement on a
project.
(8)
(7) 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)
(8) 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)
(9) Recommendations to improve the alternative project
delivery methods authorized under this chapter.
(b) The progress report shall be made available on the San Diego
Association of Governments' Internet Web site.
6960. 6959. (a)
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
(b) 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 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.