Bill Text: CA AB2355 | 2009-2010 | Regular Session | Amended
Bill Title: Public works: design-build.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-04-20 - In committee: Set second hearing. Failed passage. Reconsideration granted. [AB2355 Detail]
Download: California-2009-AB2355-Amended.html
BILL NUMBER: AB 2355 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 5, 2010
INTRODUCED BY Assembly Member Smyth
FEBRUARY 19, 2010
An act to amend Section 14661 of the Government Code, and to
repeal Section 4 of Chapter 252 of the Statutes of 1998, relating to
public works.
LEGISLATIVE COUNSEL'S DIGEST
AB 2355, as amended, Smyth. Public works: design-build.
Existing law authorizes the Director of General Services, when
authorized by the Legislature to use the design-build procurement
process for a specific project, to contract and procure state office
facilities, other buildings, structures, and related facilities, as
provided.
This bill would require the Department of General Services to
submit to the Joint Legislative Budget Committee, by January 1, 2015,
a report containing a description of each public works project
procured through the design-build process that is completed after
January 1, 2010, and before December 1, 2014. The requirement
for submitting a report would become inoperative on January 1, 2019,
in accordance with other specified provisions.
Existing law establishes that specified provisions
relating to state design-build projects shall only remain operative
until the completion of at least 5 design-build projects, each with a
value of $10,000,000 or more, or until January 1, 2006, whichever
occurs later authorizes the Director of General
Services to enter into only 7 design-build contracts pursuant to
specified provisions, and requires 2 of these 7 to be for new
veterans' homes in Fresno and Shasta counties, as prescribed .
This bill would repeal that provision. The bill would also
set forth its intent not to void or terminate design-build contracts
already executed by the Department of General Services prior to the
effective date of the bill.
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 14661 of the Government Code is amended to
read:
14661. (a) For the purposes of this section, the definitions in
subdivision (a) of Section 13332.19 shall apply.
(b) Notwithstanding any provision of the Public Contract Code or
any other provision of law, when the Legislature authorizes the use
of the design-build construction procurement process for a specific
project, the Director of General Services may contract and procure
state office facilities and other buildings, structures, and related
facilities pursuant to this section.
(c) Prior to contracting with a design-build entity for the
procurement of state office facilities and other state buildings and
structures, the director shall:
(1) Prepare a program setting forth the performance criteria for
the design-build project. The performance criteria shall be prepared
by a design professional duly licensed and registered in the State of
California.
(2) (A) Establish a competitive prequalification and selection
process for design-build entities, including any subcontractors
listed at the time of bid, that clearly specifies the
prequalification criteria, and states the manner in which the winning
design-build entity will be selected.
(B) Prequalification shall be limited to consideration of all of
the following criteria:
(i) Possession of all required licenses, registration, and
credentials in good standing that are required to design and
construct the project.
(ii) Submission of evidence that establishes that the design-build
entity members have completed, or demonstrated the capability to
complete, projects of similar size, scope, or complexity, and that
proposed key personnel have sufficient experience and training to
competently manage and complete the design and construction of the
project.
(iii) Submission of a proposed project management plan that
establishes that the design-build entity has the experience,
competence, and capacity needed to effectively complete the project.
(iv) Submission of evidence that establishes that the design-build
entity has the capacity to obtain all required payment and
performance bonding, liability insurance, and errors and omissions
insurance, as well as a financial statement that assures the
department that the design-build entity has the capacity to complete
the project.
(v) Provision of a declaration certifying that applying members of
the design-build entity have not had a surety company finish work on
any project within the last five years.
(vi) Provision of information and a declaration providing detail
concerning all of the following:
(I) Any construction or design claim or litigation totaling more
than five hundred thousand dollars ($500,000) or 5 percent of the
annual value of work performed, whichever is less, settled against
any member of the design-build entity over the last five years.
(II) Serious violations of the Occupational Safety and Health Act,
as provided in Part 1 (commencing with Section 6300) of Division 5
of the Labor Code, settled against any member of the design-build
entity.
(III) Violations of federal or state law, including, but not
limited to, those laws governing the payment of wages, benefits, or
personal income tax withholding, or of Federal Insurance
Contributions Act (FICA) withholding requirements, state disability
insurance withholding, or unemployment insurance payment
requirements, settled against any member of the design-build entity
over the last five years. For the purposes of this subclause, only
violations by a design-build member as an employer shall be deemed
applicable, unless it is shown that the design-build entity member,
in his or her capacity as an employer, had knowledge of his or her
subcontractor's violations or failed to comply with the conditions
set forth in subdivision (b) of Section 1775 of the Labor Code.
(IV) Information required by Section 10162 of the Public Contract
Code.
(V) Violations of the Contractors' State License Law (Chapter 9
(commencing with Section 7000) of Division 3 of the Business and
Professions Code), excluding alleged violations or complaints.
(VI) Any conviction of any member of the design-build entity of
submitting a false or fraudulent claim to a public agency over the
last five years.
(vii) Provision of a declaration that the design-build entity will
comply with all other provisions of law applicable to the project,
including, but not limited to, the requirements of Chapter 1
(commencing with Section 1720) of Part 7 of Division 2 of the Labor
Code.
(C) The director, when requested by the design-build entity, shall
hold in confidence any information required by clauses (i) to (vi),
inclusive.
(D) Any declaration required under subparagraph (B) shall state
that reasonable diligence has been used in its preparation and that
it is true and complete to the best of the signer's knowledge. A
person who certifies as true any material matter that he or she knows
to be false is guilty of a misdemeanor and shall be punished by not
more than one year in a county jail, by a fine of not more than five
thousand dollars ($5,000), or by both the fine and imprisonment.
(3) (A) Determine, as he or she deems in the best interests of the
state, which of the following methods listed in subparagraph (B)
will be used as the process for the winning design-build entity. The
director shall provide a notification to the State Public Works
Board, regarding the method selected for determining the winning
design-build entity, at least 30 days prior to publicizing the
design-build solicitation package.
(B) The director shall make his or her determination by choosing
one of the following methods:
(i) A design-build competition based upon performance, price, and
other criteria set forth by the department in the design-build
solicitation package. The department shall establish technical
criteria and methodology, including price, to evaluate proposals and
shall describe the criteria and methodology in the design-build
solicitation package. Award shall be made to the design-build entity
whose proposal is judged as providing the best value in meeting the
interest of the department and meeting the objectives of the project.
A project with an approved budget of ten million dollars
($10,000,000) or more may be awarded pursuant to this clause.
(ii) A design-build competition based upon performance and other
criteria set forth by the department in the design-build solicitation
package. Criteria used in this evaluation of proposals may include,
but need not be limited to, items such as proposed design approach,
life-cycle costs, project features, and functions. However, any
criteria and methods used to evaluate proposals shall be limited to
those contained in the design-build solicitation package. Award shall
be made to the design-build entity whose proposal is judged as
providing the best value, for the lowest price, meeting the interests
of the department and meeting the objectives of the project. A
project with an approved budget of ten million dollars ($10,000,000)
or more may be awarded pursuant to this clause.
(iii) A design-build competition based upon program requirements
and a detailed scope of work, including any performance criteria and
concept drawings set forth by the department in the design-build
solicitation package. Award shall be made on the basis of the lowest
responsible bid. A project with an approved budget of two hundred
fifty thousand dollars ($250,000) or more may be awarded pursuant to
this clause.
(4) For the purposes of this subdivision, the following
definitions shall apply:
(A) "Best interest of the state" means a design-build process that
is projected by the director to reduce the project delivery schedule
and total cost of a project while maintaining a high level of
quality workmanship and materials, when compared to the traditional
design-bid-build process.
(B) "Best value" means a value determined by objective criteria
that may include, but is not limited to, price, features, functions,
life cycle costs, experience, and other criteria deemed appropriate
by the department.
(d) The Legislature recognizes that the design-build entity is
charged with performing both design and construction. Because a
design-build contract may be awarded prior to the completion of the
design, it is often impracticable for the design-build entity to list
all subcontractors at the time of the award. As a result, the
subcontractor listing requirements contained in Chapter 4 (commencing
with Section 4100) of Part 1 of Division 2 of the Public Contract
Code can create a conflict with the implementation of the
design-build process by requiring all subcontractors to be listed at
a time when a sufficient set of plans may not be available. It is the
intent of the Legislature to establish a clear process for the
selection and award of subcontracts entered into pursuant to this
section in a manner that retains protection for subcontractors while
enabling design-build projects to be administered in an efficient
fashion. Therefore, all of the following requirements shall apply to
subcontractors, licensed pursuant to Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code,
that are employed on design-build projects undertaken pursuant to
this section:
(1) The department, in each design-build solicitation package, may
identify types of subcontractors, by subcontractor license
classification, that will be listed by the design-build entity at the
time of the bid. In selecting the subcontractors that will be listed
by the design-build entity, the department shall limit the
identification to only those license classifications deemed essential
for proper completion of the project. In no event, however, may the
department specify more than five licensed subcontractor
classifications. In addition, at its discretion, the design-build
entity may list an additional two subcontractors, identified by
subcontractor license classification, that will perform design or
construction work, or both, on the project. In no event shall the
design-build entity list at the time of bid a total amount of
subcontractors that will perform design or construction work, or
both, in a total of more than seven subcontractor license
classifications on a project. All subcontractors that are listed at
the time of bid shall be afforded all of the protection contained in
Chapter 4 (commencing with Section 4100) of Part 1 of Division 2 of
the Public Contract Code. All subcontracts that were not listed by
the design-build entity at the time of bid shall be awarded in
accordance with paragraph (2).
(2) All subcontracts that were not to be performed by the
design-build entity in accordance with paragraph (1) shall be
competitively bid and awarded by the design-build entity, in
accordance with the design-build process set forth by the department
in the design-build solicitation package. The design-build entity
shall do all of the following:
(A) Provide public notice of the availability of work to be
subcontracted in accordance with Section 10140 of the Public Contract
Code.
(B) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with Section 10141 of the Public
Contract Code.
(C) As authorized by the department, establish reasonable
prequalification criteria and standards, limited in scope to those
detailed in paragraph (2) of subdivision (c).
(D) Provide that the subcontracted work shall be awarded to the
lowest responsible bidder.
(e) This section shall not be construed and is not intended to
extend or limit the authority specified in Section 19130.
(f) Any design-build entity that is selected to design and
construct a project pursuant to this section shall possess or obtain
sufficient bonding consistent with applicable provisions of the
Public Contract Code. Nothing in this section shall prohibit a
general or engineering contractor from being designated the lead
entity on a design-build entity for the purposes of purchasing
necessary bonding to cover the activities of the design-build entity.
(g) Any payment or performance bond written for the purposes of
this section shall use a bond form developed by the department. In
developing the bond form, the department shall consult with the
surety industry to achieve a bond form that is consistent with surety
industry standards, while protecting the interests of the state.
(h) The department shall submit to the Joint Legislative Budget
Committee, on or before January 1, 2015, a report containing a
description of each public works project procured through the
design-build process that is completed after January 1, 2010, and
before December 1, 2014. The report shall include, but not be limited
to, all of the following information:
(1) The type of project.
(2) The gross square footage of the project.
(3) The design-build entity that was awarded the project.
(4) The estimated and actual project costs.
(5) An assessment of the prequalification process and criteria.
(6) An assessment of the effect of retaining 5 percent retention
on the project.
(7) A description of the method used to award the contract. If the
best value method was used, the report shall describe the factors
used to evaluate the bid, including the weighting of each factor and
an assessment of the effectiveness of the methodology.
(i) (1) The requirement for submitting a report imposed under
subdivision (h) is inoperative on January 1, 2019, pursuant to
Section 10231.5 of the Government Code.
(2) A report submitted pursuant to subdivision (h) shall be
submitted in compliance with Section 9795 of the Government Code.
SEC. 2. Section 4 of Chapter 252 of the
Statutes of 1998 is repealed.
SEC. 2. Section 4 of Chapter 252 of the Statutes
of 1998, as amended by Section 3 of Chapter 154 of the Statutes of
2007, is repealed.
Sec. 4. The Director of General Services may
enter into only seven design-build contracts pursuant to Sections 2
and 3 of this act. Two of these seven contracts shall be for the new
veterans' homes in Fresno and Shasta Counties. Effective July 1,
2009, the provisions of Sections 2 and 3 of this act shall only
remain operative for the seven design-build projects specified in
this section.
SEC. 3. This act is not intended to void or
terminate design-build contracts already executed by the Department
of General Services prior to the effective date of this act,
including, but not limited to, the new veterans' homes in Fresno and
Shasta counties.
