BILL NUMBER: AB 1064 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Garrick
FEBRUARY 27, 2009
An act to amend Sections 17250.30 and 81704 of the Education Code,
and to amend Sections 20133, 20175.2, and 20209.7 of the Public
Contract Code, relating to public contracts.
LEGISLATIVE COUNSEL'S DIGEST
AB 1064, as introduced, Garrick. Design-build contracts: labor
compliance program: exemptions.
Existing law requires public entities to comply with certain
procedures in soliciting and evaluating bids and awarding contracts
for the erection, construction, alteration, repair, or improvement of
any public structure, building, road, or other public improvement.
Existing law authorizes school district governing boards, the
governing boards of specified community college districts and
community college facility construction projects, certain cities,
certain counties, and transit operators, to enter into design-build
contracts, as specified. Existing law requires awarding bodies
entering into design-build contracts under these provisions to
establish and enforce a labor compliance program or to contract with
a 3rd party to operate a labor compliance program, and exempts from
this requirement projects where the awarding body or the design-build
entity has entered into a collective bargaining agreement that binds
all of the contractors performing work on the project.
This bill would delete the exemption for those projects from the
requirement that the entity establish and enforce a labor compliance
program or contract with a 3rd party to operate a labor compliance
program.
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 17250.30 of the Education Code is amended to
read:
17250.30. (a) Any design-build entity that is selected to design
and build a project pursuant to this chapter shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omissions insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This chapter does not 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.
(b) Any payment or performance bond written for the purposes of
this chapter shall use a bond form developed by the Department of
General Services pursuant to subdivision (g) of Section 14661 of the
Government Code. The purpose of this subdivision is to promote
uniformity of bond forms to be used on school district design-build
projects throughout the state.
(c) (1) All subcontracts that were not listed by the design-build
entity in accordance with Section 17250.25 shall be awarded by the
design-build entity.
(2) The design-build entity shall do all of the following:
(A) Provide public notice of the availability of work to be
subcontracted.
(B) Provide a fixed date and time on which the subcontracted work
will be awarded.
(3) Subcontractors bidding on contracts pursuant to this
subdivision shall be afforded the protections contained in Chapter 4
(commencing with Section 4100) of Part 1 of Division 2 of the Public
Contract Code.
(4) (A) If the school district elects to award a project pursuant
to this section, retention proceeds withheld by the school district
from the design-build entity shall not exceed 5 percent if a
performance and payment bond, issued by an admitted surety insurer,
is required in the solicitation of bids.
(B) In a contract between the design-build entity and a
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld shall not exceed the percentage specified in the contract
between the school district and the design-build entity. If the
design-build entity provides written notice to any
a subcontractor who is not a member of the design-build
entity, prior to or at the time the bid is requested, that a bond may
be required and the subcontractor subsequently is unable or refuses
to furnish a bond to the design-build entity, then the design-build
entity may withhold retention proceeds in excess of the percentage
specified in the contract between the school district and the
design-build entity from any payment made by the design-build entity
to the subcontractor.
(5) In accordance with the provisions of applicable state law, the
design-build entity may be permitted to substitute securities in
lieu of the withholding from progress payments. Substitutions shall
be made in accordance with Section 22300 of the Public Contract Code.
(d) The school district shall establish and enforce a labor
compliance program containing the requirements outlined in Section
1771.5 of the Labor Code or shall contract with a third party to
operate a labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code. This
requirement shall not apply to projects where the school district or
the design-build entity has entered into a collective bargaining
agreement that binds all of the contractors performing work on the
project.
SEC. 2. Section 81704 of the Education Code is amended to read:
81704. (a) Any design-build entity that is selected to design and
build a project pursuant to this chapter shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omission insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This chapter does not 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.
(b) Any payment or performance bond written for the purposes of
this chapter shall use a bond form developed by the Department of
General Services pursuant to subdivision (i) of Section 14661 of the
Government Code. The purpose of this subdivision is to promote
uniformity of bond forms to be used on community college district
design-build projects throughout the state.
(c) (1) All subcontracts that were not listed by the design-build
entity in accordance with Section 81703 shall be awarded by the
design-build entity in accordance with the design-build process set
forth by the community college district in the design-build package.
(2) The design-build entity shall do all of the following:
(A) Provide public notice of the availability of work to be
subcontracted.
(B) Provide a fixed date and time on which the subcontracted work
will be awarded.
(3) Subcontractors bidding on contracts pursuant to this
subdivision shall be afforded the protections contained in Chapter 4
(commencing with Section 4100) of Part 1 of Division 2 of the Public
Contract Code.
(4) (A) If the community college district elects to award a
project pursuant to this section, retention proceeds withheld by the
community college district from the design-build entity shall not
exceed 5 percent if a performance and payment bond, issued by an
admitted surety insurer, is required in the solicitation of bids.
(B) In a contract between the design-build entity and a
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may shall not exceed the
percentage specified in the contract between the community college
district and the design-build entity. If the design-build entity
provides written notice to any a
subcontractor who is not a member of the design-build entity, prior
to or at the time the bid is requested, that a bond may be required
and the subcontractor subsequently is unable or refuses to furnish a
bond to the design-build entity, then the design-build entity may
withhold retention proceeds in excess of the percentage specified in
the contract between the community college district and the
design-build entity from any payment made by the design-build entity
to the subcontractor.
(5) In accordance with the provisions of applicable state law, the
design-build entity may be permitted to substitute securities in
lieu of the withholding from progress payments. Substitutions shall
be made in accordance with Section 22300 of the Public Contract Code.
(d) The community college district shall establish and enforce a
labor compliance program containing the requirements outlined in
Section 1771.5 of the Labor Code or shall contract with a third party
to operate a labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code. This
requirement shall not apply to projects where the community college
district or the design-build entity has entered into a collective
bargaining agreement that binds all of the contractors performing
work on the project.
SEC. 3. Section 20133 of the Public Contract Code is amended to
read:
20133. (a) A county, with approval of the board of supervisors,
may utilize an alternative procedure for bidding on construction
projects in the county in excess of two million five hundred thousand
dollars ($2,500,000) and may award the project using either the
lowest responsible bidder or by best value.
(b) (1) It is the intent of the Legislature to enable counties to
utilize design-build for buildings and county sanitation wastewater
treatment facilities. It is not the intent of the Legislature to
authorize this procedure for other infrastructure, including, but not
limited to, streets and highways, public rail transit, or water
resources facilities and infrastructures.
(2) The Legislature also finds and declares that utilizing a
design-build contract requires a clear understanding of the roles and
responsibilities of each participant in the design-build process.
(3) If the board of supervisors elects to proceed under this
section, the board of supervisors shall establish and enforce for
design-build projects a labor compliance program containing the
requirements outlined in Section 1771.5 of the Labor Code, or it
shall contract with a third party to operate a labor compliance
program containing the requirements outlined in Section 1771.5 of the
Labor Code. This requirement shall not apply to any project
where the county or the design-build entity has entered into any
collective bargaining agreement or agreements that bind all of the
contractors performing work on the projects.
(c) As used in this section:
(1) "Best value" means a value determined by objective criteria
related to price, features, functions, and life-cycle costs.
(2) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(3) "Design-build entity" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting, architectural, and engineering services as needed
pursuant to a design-build contract.
(4) "Project" means the construction of a building and
improvements directly related to the construction of a building, and
county sanitation wastewater treatment facilities, but does not
include the construction of other infrastructure, including, but not
limited to, streets and highways, public rail transit, or water
resources facilities and infrastructure.
(d) Design-build projects shall progress in a four-step process,
as follows:
(1) (A) The county shall prepare a set of documents setting forth
the scope of the project. The documents may include, but are not
limited to, the size, type, and desired design character of the
public improvement, performance specifications covering the quality
of materials, equipment, and workmanship, preliminary plans or
building layouts, or any other information deemed necessary to
describe adequately the county's needs. The performance
specifications and any plans shall be prepared by a design
professional who is duly licensed and registered in California.
(B) Any architect or engineer retained by the county to assist in
the development of the project specific documents shall not be
eligible to participate in the preparation of a bid with any
design-build entity for that project.
(2) (A) Based on the documents prepared in paragraph (1), the
county shall prepare a request for proposals that invites interested
parties to submit competitive sealed proposals in the manner
prescribed by the county. The request for proposals shall include,
but is not limited to, the following elements:
(i) Identification of the basic scope and needs of the project or
contract, the expected cost range, and other information deemed
necessary by the county to inform interested parties of the
contracting opportunity, to include the methodology that will be used
by the county to evaluate proposals and specifically if the contract
will be awarded to the lowest responsible bidder.
(ii) Significant factors that the county reasonably expects to
consider in evaluating proposals, including cost or price and all
nonprice related factors.
(iii) The relative importance of weight assigned to each of the
factors identified in the request for proposals.
(B) With respect to clause (iii) of subparagraph (A), if a
nonweighted system is used, the agency shall specifically disclose
whether all evaluation factors other than cost or price when combined
are:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(C) If the county chooses to reserve the right to hold discussions
or negotiations with responsive bidders, it shall so specify in the
request for proposal and shall publish separately or incorporate into
the request for proposal applicable rules and procedures to be
observed by the county to ensure that any discussions or negotiations
are conducted in good faith.
(3) (A) The county shall establish a procedure to prequalify
design-build entities using a standard questionnaire developed by the
county. In preparing the questionnaire, the county shall consult
with the construction industry, including representatives of the
building trades and surety industry. This questionnaire shall require
information including, but not limited to, all of the following:
(i) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members known at the time of bid
submission who will participate in the design-build contract,
including, but not limited to, mechanical subcontractors.
(ii) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity 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, as well as a financial statement
that assures the county that the design-build entity has the capacity
to complete the project.
(iii) The licenses, registration, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(iv) 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.
(v) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code, or
the federal Occupational Safety and Health Act of 1970 (P.L. 91-596),
settled against any member of the design-build entity, and
information concerning workers' compensation experience history and
worker safety program.
(vi) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance in which an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found to be nonresponsive, or were found by an awarding body not to
be a responsible bidder.
(vii) Any instance in which the entity, or its owners, officers,
or managing employees, defaulted on a construction contract.
(viii) Any 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 of
federal or state law including the payment of wages, benefits,
apprenticeship requirements, or personal income tax withholding, or
of Federal Insurance Contributions Act (FICA; 26 U.S.C. Sec. 3101 et
seq.) withholding requirements settled against any member of the
design-build entity.
(ix) Information concerning the bankruptcy or receivership of any
member of the design-build entity, including information concerning
any work completed by a surety.
(x) Information concerning all settled adverse claims, disputes,
or lawsuits between the tract Code, relating to public contracts. }PA
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SECTION 1. Section 17250.30 of the Education Code is amended to
read:
17250.30. (a) Any design-build entity that is selected to design
and build a project pursuant to this chapter shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omissions insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This chapter does not 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.
(b) Any payment or performance bond written for the purposes of
this chapter shall use a bond form developed by the Department of
General Services pursuant to subdivision (g) of Section 14661 of the
Government Code. The purpose of this subdivision is to promote
uniformity of bond forms to be used on school district design-build
projects throughout the state.
(c) (1) All subcontracts that were not listed by the design-build
entity in accordance with Section 17250.25 shall be awarded by the
design-build entity.
(2) The design-build entity shall do all of the following:
(A) Provide public notice of the availability of work to be
subcontracted.
(B) Provide a fixed date and time on which the subcontracted work
will be awarded.
(3) Subcontractors bidding on contracts pursuant to this
subdivision shall be afforded the protections contained in Chapter 4
(commencing with Section 4100) of Part 1 of Division 2 of the Public
Contract Code.
(4) (A) If the school district elects to award a project pursuant
to this section, retention proceeds withheld by the school district
from the design-build entity shall not exceed 5 percent if a
performance and payment bond, issued by an admitted surety insurer,
is required in the solicitation of bids.
(B) In a contract between the design-build entity and a
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld shall not exceed the percentage specified in the contract
between the school district and the design-build entity. If the
design-build entity provides written notice to any
a subcontractor who is not a member of the design-build
entity, prior to or at the time the bid is requested, that a bond may
be required and the subcontractor subsequently is unable or refuses
to furnish a bond to the design-build entity, then the design-build
entity may withhold retention proceeds in excess of the percentage
specified in the contract between the school district and the
design-build entity from any payment made by the design-build entity
to the subcontractor.
(5) In accordance with the provisions of applicable state law, the
design-build entity may be permitted to substitute securities in
lieu of the withholding from progress payments. Substitutions shall
be made in accordance with Section 22300 of the Public Contract Code.
(d) The school district shall establish and enforce a labor
compliance program containing the requirements outlined in Section
1771.5 of the Labor Code or shall contract with a third party to
operate a labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code. This
requirement shall not apply to projects where the school district or
the design-build entity has entered into a collective bargaining
agreement that binds all of the contractors performing work on the
project.
SEC. 2. Section 81704 of the Education Code is amended to read:
81704. (a) Any design-build entity that is selected to design and
build a project pursuant to this chapter shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omission insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This chapter does not 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.
(b) Any payment or performance bond written for the purposes of
this chapter shall use a bond form developed by the Department of
General Services pursuant to subdivision (i) of Section 14661 of the
Government Code. The purpose of this subdivision is to promote
uniformity of bond forms to be used on community college district
design-build projects throughout the state.
(c) (1) All subcontracts that were not listed by the design-build
entity in accordance with Section 81703 shall be awarded by the
design-build entity in accordance with the design-build process set
forth by the community college district in the design-build package.
(2) The design-build entity shall do all of the following:
(A) Provide public notice of the availability of work to be
subcontracted.
(B) Provide a fixed date and time on which the subcontracted work
will be awarded.
(3) Subcontractors bidding on contracts pursuant to this
subdivision shall be afforded the protections contained in Chapter 4
(commencing with Section 4100) of Part 1 of Division 2 of the Public
Contract Code.
(4) (A) If the community college district elects to award a
project pursuant to this section, retention proceeds withheld by the
community college district from the design-build entity shall not
exceed 5 percent if a performance and payment bond, issued by an
admitted surety insurer, is required in the solicitation of bids.
(B) In a contract between the design-build entity and a
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may shall not exceed the
percentage specified in the contract between the community college
district and the design-build entity. If the design-build entity
provides written notice to any a
subcontractor who is not a member of the design-build entity, prior
to or at the time the bid is requested, that a bond may be required
and the subcontractor subsequently is unable or refuses to furnish a
bond to the design-build entity, then the design-build entity may
withhold retention proceeds in excess of the percentage specified in
the contract between the community college district and the
design-build entity from any payment made by the design-build entity
to the subcontractor.
(5) In accordance with the provisions of applicable state law, the
design-build entity may be permitted to substitute securities in
lieu of the withholding from progress payments. Substitutions shall
be made in accordance with Section 22300 of the Public Contract Code.
(d) The community college district shall establish and enforce a
labor compliance program containing the requirements outlined in
Section 1771.5 of the Labor Code or shall contract with a third party
to operate a labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code. This
requirement shall not apply to projects where the community college
district or the design-build entity has entered into a collective
bargaining agreement that binds all of the contractors performing
work on the project.
SEC. 3. Section 20133 of the Public Contract Code is amended to
read:
20133. (a) A county, with approval of the board of supervisors,
may utilize an alternative procedure for bidding on construction
projects in the county in excess of two million five hundred thousand
dollars ($2,500,000) and may award the project using either the
lowest responsible bidder or by best value.
(b) (1) It is the intent of the Legislature to enable counties to
utilize design-build for buildings and county sanitation wastewater
treatment facilities. It is not the intent of the Legislature to
authorize this procedure for other infrastructure, including, but not
limited to, streets and highways, public rail transit, or water
resources facilities and infrastructures.
(2) The Legislature also finds and declares that utilizing a
design-build contract requires a clear understanding of the roles and
responsibilities of each participant in the design-build process.
(3) If the board of supervisors elects to proceed under this
section, the board of supervisors shall establish and enforce for
design-build projects a labor compliance program containing the
requirements outlined in Section 1771.5 of the Labor Code, or it
shall contract with a third party to operate a labor compliance
program containing the requirements outlined in Section 1771.5 of the
Labor Code. This requirement shall not apply to any project
where the county or the design-build entity has entered into any
collective bargaining agreement or agreements that bind all of the
contractors performing work on the projects.
(c) As used in this section:
(1) "Best value" means a value determined by objective criteria
related to price, features, functions, and life-cycle costs.
(2) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(3) "Design-build entity" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting, architectural, and engineering services as needed
pursuant to a design-build contract.
(4) "Project" means the construction of a building and
improvements directly related to the construction of a building, and
county sanitation wastewater treatment facilities, but does not
include the construction of other infrastructure, including, but not
limited to, streets and highways, public rail transit, or water
resources facilities and infrastructure.
(d) Design-build projects shall progress in a four-step process,
as follows:
(1) (A) The county shall prepare a set of documents setting forth
the scope of the project. The documents may include, but are not
limited to, the size, type, and desired design character of the
public improvement, performance specifications covering the quality
of materials, equipment, and workmanship, preliminary plans or
building layouts, or
any other information deemed necessary to describe adequately the
county's needs. The performance specifications and any plans shall be
prepared by a design professional who is duly licensed and
registered in California.
(B) Any architect or engineer retained by the county to assist in
the development of the project specific documents shall not be
eligible to participate in the preparation of a bid with any
design-build entity for that project.
(2) (A) Based on the documents prepared in paragraph (1), the
county shall prepare a request for proposals that invites interested
parties to submit competitive sealed proposals in the manner
prescribed by the county. The request for proposals shall include,
but is not limited to, the following elements:
(i) Identification of the basic scope and needs of the project or
contract, the expected cost range, and other information deemed
necessary by the county to inform interested parties of the
contracting opportunity, to include the methodology that will be used
by the county to evaluate proposals and specifically if the contract
will be awarded to the lowest responsible bidder.
(ii) Significant factors that the county reasonably expects to
consider in evaluating proposals, including cost or price and all
nonprice related factors.
(iii) The relative importance of weight assigned to each of the
factors identified in the request for proposals.
(B) With respect to clause (iii) of subparagraph (A), if a
nonweighted system is used, the agency shall specifically disclose
whether all evaluation factors other than cost or price when combined
are:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(C) If the county chooses to reserve the right to hold discussions
or negotiations with responsive bidders, it shall so specify in the
request for proposal and shall publish separately or incorporate into
the request for proposal applicable rules and procedures to be
observed by the county to ensure that any discussions or negotiations
are conducted in good faith.
(3) (A) The county shall establish a procedure to prequalify
design-build entities using a standard questionnaire developed by the
county. In preparing the questionnaire, the county shall consult
with the construction industry, including representatives of the
building trades and surety industry. This questionnaire shall require
information including, but not limited to, all of the following:
(i) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members known at the time of bid
submission who will participate in the design-build contract,
including, but not limited to, mechanical subcontractors.
(ii) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity 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, as well as a financial statement
that assures the county that the design-build entity has the capacity
to complete the project.
(iii) The licenses, registration, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(iv) 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.
(v) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code, or
the federal Occupational Safety and Health Act of 1970 (P.L. 91-596),
settled against any member of the design-build entity, and
information concerning workers' compensation experience history and
worker safety program.
(vi) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance in which an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found to be nonresponsive, or were found by an awarding body not to
be a responsible bidder.
(vii) Any instance in which the entity, or its owners, officers,
or managing employees, defaulted on a construction contract.
(viii) Any 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 of
federal or state law including the payment of wages, benefits,
apprenticeship requirements, or personal income tax withholding, or
of Federal Insurance Contributions Act (FICA; 26 U.S.C. Sec. 3101 et
seq.) withholding requirements settled against any member of the
design-build entity.
(ix) Information concerning the bankruptcy or receivership of any
member of the design-build entity, including information concerning
any work completed by a surety.
(x) Information concerning all settled adverse claims, disputes,
or lawsuits between the owner of a public works project and any
member of the design-build entity during the five years preceding
submission of a bid pursuant to this section, in which the claim,
settlement, or judgment exceeds fifty thousand dollars ($50,000).
Information shall also be provided concerning any work completed by a
surety during this period.
(xi) In the case of a partnership or other association, that is
not a legal entity, a copy of the agreement creating the partnership
or association and specifying that all partners or association
members agree to be fully liable for the performance under the
design-build contract.
(B) The information required pursuant to this subdivision shall be
verified under oath by the entity and its members in the manner in
which civil pleadings in civil actions are verified. Information that
is not a public record pursuant to 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 open to public inspection.
(4) The county shall establish a procedure for final selection of
the design-build entity. Selection shall be based on either of the
following criteria:
(A) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Awards shall be made to the
lowest responsible bidder.
(B) A county may use a design-build competition based upon best
value and other criteria set forth in paragraph (2). The design-build
competition shall include the following elements:
(i) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposal. However, the following minimum factors shall
each represent at least 10 percent of the total weight of
consideration given to all criteria factors: price, technical design,
and construction expertise, life cycle costs over 15 years or more,
skilled labor force availability, and acceptable safety record.
(ii) Once the evaluation is complete, the top three responsive
bidders shall be ranked sequentially from the most advantageous to
the least.
(iii) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing, to be the most
advantageous.
(iv) Notwithstanding any provision of this code, upon issuance of
a contract award, the county shall publicly announce its award,
identifying the contractor to whom the award is made, along with a
written decision supporting its contract award and stating the basis
of the award. The notice of award shall also include the county's
second and third ranked design-build entities.
(v) For the purposes of this paragraph,
"skilled labor force availability" shall be determined by the
existence of an agreement with a registered apprenticeship program,
approved by the California Apprenticeship Council, which has
graduated apprentices in each of the preceding five years. This
graduation requirement shall not apply to programs providing
apprenticeship training for any craft that has been deemed by the
Department of Labor and the Department of Industrial Relations to be
an apprenticeable craft in the five years prior to enactment of this
act.
(vi) For the purposes of this paragraph, a
bidder's "safety record" shall be deemed "acceptable" if their
experience modification rate for the most recent three-year period is
an average of 1.00 or less, and their average total recordable
injury/illness rate and average lost work rate for the most recent
three-year period does not exceed the applicable statistical
standards for its business category or if the bidder is a party to an
alternative dispute resolution system as provided for in Section
3201.5 of the Labor Code.
(e) (1) Any design-build entity that is selected to design and
build a project pursuant to this section shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omission insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This section does not 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.
(2) Any payment or performance bond written for the purposes of
this section shall be written using a bond form developed by the
county.
(f) All subcontractors that were not listed by the design-build
entity in accordance with clause (i) of subparagraph (A) of paragraph
(3) of subdivision (d) shall be awarded by the design-build entity
in accordance with the design-build process set forth by the county
in the design-build package. All subcontractors bidding on contracts
pursuant to this section shall be afforded the protections contained
in Chapter 4 (commencing with Section 4100) of Part 1. The
design-build entity shall do both of the following:
(1) Provide public notice of the availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the county.
(2) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with the procedure established pursuant
to this section.
(g) The minimum performance criteria and design standards
established pursuant to paragraph (1) of subdivision (d) shall be
adhered to by the design-build entity. Any deviations from those
standards may only be allowed by written consent of the county.
(h) The county may retain the services of a design professional or
construction project manager, or both, throughout the course of the
project in order to ensure compliance with this section.
(i) Contracts awarded pursuant to this section shall be valid
until the project is completed.
(j) Nothing in this section is intended to affect, expand, alter,
or limit any rights or remedies otherwise available at law.
(k) (1) If the county elects to award a project pursuant to this
section, retention proceeds withheld by the county from the
design-build entity shall not exceed 5 percent if a performance and
payment bond, issued by an admitted surety insurer, is required in
the solicitation of bids.
(2) In a contract between the design-build entity and the
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may shall not exceed the
percentage specified in the contract between the county and the
design-build entity. If the design-build entity provides written
notice to any subcontractor who is not a member of the design-build
entity, prior to or at the time the bid is requested, that a bond may
be required and the subcontractor subsequently is unable or refuses
to furnish a bond to the design-build entity, then the design-build
entity may withhold retention proceeds in excess of the percentage
specified in the contract between the county and the design-build
entity from any payment made by the design-build entity to the
subcontractor.
() Each county that elects to proceed under this section and uses
the design-build method on a public works project shall submit to the
Legislative Analyst's Office before December 1, 2009, a report
containing a description of each public works project procured
through the design-build process and completed after November 1,
2004, and before November 1, 2009. The report shall include, but
shall 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 length of time to complete the
project.
(5) The estimated and actual project costs.
(6) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the design-build
project, including the resolution of the protests.
(7) An assessment of the prequalification process and criteria.
(8) An assessment of the effect of retaining 5-percent retention
on the project.
(9) A description of the Labor Force Compliance Program and an
assessment of the project impact, where required.
(10) A description of the method used to award the contract. If
best value was the method, 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.
(11) An assessment of the project impact of "skilled labor force
availability."
(12) An assessment of the design-build dollar limits on county
projects. This assessment shall include projects where the county
wanted to use design-build and was precluded by the dollar
limitation. This assessment shall also include projects where the
best value method was not used due to dollar limitations.
(13) An assessment of the most appropriate uses for the
design-build approach.
(m) Any county that elects to not use the authority granted by
this section may submit a report to the Legislative Analyst's Office
explaining why the county elected to not use the design-build method.
(n) On or before January 1, 2010, the Legislative Analyst shall
report to the Legislature on the use of the design-build method by
counties pursuant to this section, including the information listed
in subdivision (). The report may include recommendations for
modifying or extending this section.
(o) Except as provided in this section, nothing in this act shall
be construed to affect the application of any other law.
(p) This section shall remain in effect only until January 1,
2011, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2011, deletes or extends
that date.
SEC. 4. Section 20175.2 of the Public Contract Code is amended to
read:
20175.2. (a) (1) A city, with approval of the appropriate city
council, may utilize an alternative procedure for bidding on building
construction projects in the city in excess of one million dollars
($1,000,000), except as provided in subdivision (p).
(2) Cities may award the project using either the lowest
responsible bidder or by best value.
(b) (1) It is the intent of the Legislature to enable cities to
utilize cost-effective options for building and modernizing public
facilities. The Legislature also recognizes the national trend,
including authorization in California, to allow public entities to
utilize design-build contracts as a project delivery method. It is
not the intent of the Legislature to authorize this procedure for
transportation facilities, including, but not limited to, roads and
bridges.
(2) The Legislature also finds and declares that utilizing a
design-build contract requires a clear understanding of the roles and
responsibilities of each participant in the design-build process.
The Legislature also finds that the cost-effective benefits to cities
are achieved by shifting the liability and risk for cost containment
and project completion to the design-build entity.
(3) It is the intent of the Legislature to provide an alternative
and optional procedure for bidding and building construction projects
for cities.
(4) The design-build approach may be used, but is not limited to
use, when it is anticipated that it will: reduce project cost,
expedite project completion, or provide design features not
achievable through the design-bid-build method.
(5) If a city council elects to proceed under this section, the
city council shall establish and enforce, for design-build projects,
a labor compliance program containing the requirements outlined in
Section 1771.5 of the Labor Code, or it shall contract with a third
party to operate a labor compliance program containing the
requirements outlined in Section 1771.5 of the Labor Code.
This requirement shall not apply to any project where the city or the
design-build entity has entered into any collective bargaining
agreement or agreements that bind all of the contractors performing
work on the projects.
(c) As used in this section:
(1) "Best value" means a value determined by objectives relative
to price, features, functions, and life-cycle costs.
(2) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(3) "Design-build entity" means a partnership, corporation, or
other legal entity that is able to provide appropriately licensed
contracting, architectural, and engineering services, as needed,
pursuant to a design-build contract.
(4) "Project" means the construction of a building and
improvements directly related to the construction of a building, but
does not include streets and highways, public rail transit, or water
resource facilities and infrastructure.
(d) Design-build projects shall progress in a four-step process,
as follows:
(1) (A) The city shall prepare a set of documents setting forth
the scope of the project. The documents may include, but are not
limited to, the size, type, and desired design character of the
buildings and site, performance specifications covering the quality
of materials, equipment, and workmanship, preliminary plans or
building layouts, or any other information deemed necessary to
describe adequately the city's needs. The performance specifications
and any plans shall be prepared by a design professional who is duly
licensed and registered in California.
(B) Any architect or engineer retained by the city to assist in
the development of the project-specific documents shall not be
eligible to participate in the preparation of a bid with any
design-build entity for that project.
(2) (A) Based on the documents prepared in paragraph (1), the city
shall prepare a request for proposals that invites interested
parties to submit competitive sealed proposals in the manner
prescribed by the city. The request for proposals shall include, but
is not limited to, the following elements:
(i) Identification of the basic scope and needs of the project or
contract, the expected cost range, and other information deemed
necessary by the city to inform interested parties of the contracting
opportunity, to include the methodology that will be used by the
city to evaluate proposals, and specifically if the contract will be
awarded to the lowest responsible bidder.
(ii) Significant factors which the city reasonably expects to
consider in evaluating proposals, including cost or price and all
nonprice related factors.
(iii) The relative importance of weight assigned to each of the
factors identified in the request for proposals.
(B) With respect to clause (iii) of subparagraph (A), if a
nonweighted system is used, the agency shall specifically disclose
whether all evaluation factors, other than cost or price, when
combined are:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(C) If the city chooses to reserve the right to hold discussions
or negotiations with responsive bidders, it shall so specify in the
request for proposal and shall publish separately, or incorporate
into the request for proposal, applicable rules and procedures to be
observed by the city to ensure that any discussions or negotiations
are conducted in good faith.
(3) (A) The city shall establish a procedure to prequalify
design-build entities using a standard questionnaire developed by the
city. In preparing the questionnaire, the city shall consult with
the construction industry, including representatives of the building
trades and surety industry. This questionnaire shall require
information including, but not limited to, all of the following:
(i) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members known at the time of bid
submission who will participate in the design-build contract,
including, but not limited to, mechanical subcontractors.
(ii) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity 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, as well as a financial statement
that assures the city that the design-build entity has the capacity
to complete the project.
(iii) The licenses, registration, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(iv) 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.
(v) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code or the
federal Occupational Safety and Health Act of 1970 (Public Law
91-596) settled against any member of the design-build entity, and
information concerning workers' compensation experience history and
worker safety program.
(vi) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance where an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found to be nonresponsive, or were found by an awarding body not to
be a responsible bidder.
(vii) Any instance where the entity, its owners, officers, or
managing employees defaulted on a construction contract.
(viii) Any 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 of
federal or state law including the payment of wages, benefits,
apprenticeship requirements, or personal income tax withholding, or
of Federal Insurance Contribution Act (FICA) withholding requirements
settled against any member of the design-build entity.
(ix) Information concerning the bankruptcy or receivership of any
member of the design-build entity, including information concerning
any work completed by a surety.
(x) Information concerning all settled adverse claims, disputes,
or lawsuits between the owner of a public works project and any
member of the design-build entity during the five years preceding
submission of a bid pursuant to this section, in which the claim,
settlement, or judgment exceeds fifty thousand dollars ($50,000).
Information shall also be provided concerning any work completed by a
surety during this period.
(xi) In the case of a partnership or other association that is not
a legal entity, a copy of the agreement creating the partnership or
association and specifying that all partners or association members
agree to be fully liable for the performance under the design-build
contract.
(B) The information required pursuant to this subdivision shall be
verified under oath by the entity and its members in the manner in
which civil pleadings in civil actions are verified. Information that
is not a public record pursuant to 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 open to public inspection.
(4) The city shall establish a procedure for final selection of
the design-build entity. Selection shall be based on either of the
following criteria:
(A) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities. Awards shall be made to the
lowest responsible bidder.
(B) The city may use a design-build competition based upon best
value and other criteria set forth in paragraph (2) of subdivision
(d). The design-build competition shall include the following
elements:
(i) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposal. However, the following minimum factors shall
each represent at least 10 percent of the total weight of
consideration given to all criteria factors: price, technical design
and construction expertise, life-cycle costs over 15 years or more,
skilled labor force availability, and acceptable safety record. Each
of these factors shall be weighted equally.
(ii) Once the evaluation is complete, the top three responsive
bidders shall be ranked sequentially from the most advantageous to
the least.
(iii) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing, to be the most
advantageous.
(iv) Notwithstanding any provision of this code, upon issuance of
a contract award, the city shall publicly announce its award,
identifying the contractor to whom the award is made, along with a
written decision supporting its contract award and stating the basis
of the award. The notice of award shall also include the city's
second and third ranked design-build entities.
(v) For
the purposes of this paragraph, "skilled labor
force availability" shall be determined by the existence of an
agreement with a registered apprenticeship program, approved by the
California Apprenticeship Council, which has graduated apprentices in
each of the preceding five years. This graduation requirement shall
not apply to programs providing apprenticeship training for any craft
that has been deemed by the Department of Labor and the Department
of Industrial Relations to be an apprenticeable craft in the five
years prior to enactment of this act.
(vi) For the purposes of this paragraph, a
bidder's "safety record" shall be deemed "acceptable" if their
experience modification rate for the most recent three-year period is
an average of 1.00 or less, and their average total recordable
injury/illness rate and average lost work rate for the most recent
three-year period does not exceed the applicable statistical
standards for its business category, or if the bidder is a party to
an alternative dispute resolution system, as provided for in Section
3201.5 of the Labor Code.
(e) (1) Any design-build entity that is selected to design and
build a project pursuant to this section shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services and errors and omissions insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This section does not 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.
(2) Any payment or performance bond written for the purposes of
this section shall be written using a bond form developed by the
city.
(f) All subcontractors that were not listed by the design-build
entity in accordance with clause (i) of subparagraph (A) of paragraph
(3) of subdivision (d) shall be awarded by the design-build entity
in accordance with the design-build process set forth by the city in
the design-build package. All subcontractors bidding on contracts
pursuant to this section shall be afforded the protections contained
in Chapter 4 (commencing with Section 4100) of Part 1. The
design-build entity shall do both of the following:
(1) Provide public notice of the availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the city.
(2) Provide a fixed date and time on which the subcontracted work
will be awarded in accordance with the procedure established pursuant
to this section.
(g) The minimum performance criteria and design standards
established pursuant to paragraph (1) of subdivision (d) shall be
adhered to by the design-build entity. Any deviations from those
standards may only be allowed by written consent of the city.
(h) The city may retain the services of a design professional or
construction project manager, or both, throughout the course of the
project in order to ensure compliance with this section.
(i) Contracts awarded pursuant to this section shall be valid
until the project is completed.
(j) Nothing in this section is intended to affect, expand, alter,
or limit any rights or remedies otherwise available at law.
(k) (1) If the city elects to award a project pursuant to this
section, retention proceeds withheld by the city from the
design-build entity shall not exceed 5 percent if a performance and
payment bond, issued by an admitted surety insurer, is required in
the solicitation of bids.
(2) In a contract between the design-build entity and the
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may not exceed the percentage specified in the contract
between the city and the design-build entity. If the design-build
entity provides written notice to any subcontractor who is not a
member of the design-build entity, prior to or at the time the bid is
requested, that a bond may be required and the subcontractor
subsequently is unable or refuses to furnish a bond to the
design-build entity, then the design-build entity may withhold
retention proceeds in excess of the percentage specified in the
contract between the city and the design-build entity from any
payment made by the design-build entity to the subcontractor.
(l) Each city that elects to proceed under this section and uses
the design-build method on a public works project shall submit to the
Legislative Analyst's Office before December 1, 2014, a report
containing a description of each public works project procured
through the design-build process that is completed after January 1,
2011, and before November 1, 2014. The report shall include, but
shall 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) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the design-build
project, including the resolution of the protests.
(6) An assessment of the prequalification process and criteria.
(7) An assessment of the effect of retaining 5 percent retention
on the project.
(8) A description of the Labor Force Compliance Program and an
assessment of the project impact, where required.
(9) 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.
(10) An assessment of the project impact of "skilled labor force
availability."
(11) An assessment of the most appropriate uses for the
design-build approach.
(m) Any city that elects not to use the authority granted by this
section may submit a report to the Legislative Analyst's Office
explaining why the city elected not to use the design-build method.
(n) On or before January 1, 2015, the Legislative Analyst's Office
shall report to the Legislature on the use of the design-build
method by cities pursuant to this section, including the information
listed in subdivision (l). The report may include recommendations for
modifying or extending this section.
(o) Except as provided in this section, nothing in this act shall
be construed to affect the application of any other law.
(p) Before January 1, 2011, the project limitation of one million
dollars ($1,000,000), as set forth in subdivision (a), shall not
apply to any city in the Counties of Solano and Yolo, or to the
Cities of Stanton and Victorville.
(q) This section shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 5. Section 20209.7 of the Public Contract Code is amended to
read:
20209.7. Design-build projects shall progress in a three-step
process, as follows:
(a) The transit operator shall prepare a set of documents setting
forth the scope of the project. The documents shall include, but are
not limited to, the size, type, and desired design character of the
buildings, transit facilities, and site, performance specifications
covering the quality of materials, equipment, and workmanship,
preliminary plans or building layouts, or any other information
deemed necessary to describe adequately the transit operator's needs.
The performance specifications and any plans shall be prepared by a
design professional duly licensed or registered in California.
(b) Any architectural or engineering firm or individual retained
by the transit operator to assist in the development criteria or
preparation of the request for proposal (RFP) is not eligible to
participate in the competition for the design-build entity.
(c) If the transit operator does not already have a labor
compliance program, as defined in Section 1771.5 of the Labor Code,
the transit operator shall establish and enforce a labor compliance
program for the design-build contract containing the requirements
outlined in Section 1771.5 of the Labor Code or shall contract with a
third party to operate this labor compliance program containing the
requirements outlined in Section 1771.5 of the Labor Code. This
requirement applies only to the design-build contract and
does not apply to projects where the transit operator or the
design-build entity has entered into a collective bargaining
agreement that binds all of the contractors performing work on the
project, or to any other project of the transit operator that is not
design-build .
(d) (1) Each RFP shall identify the basic scope and needs of the
project or contract, the expected cost range, and other information
deemed necessary by the contracting agency to inform interested
parties of the contracting opportunity.
(2) Each RFP shall invite interested parties to submit competitive
sealed proposals in the manner prescribed by the contracting agency.
(3) Each RFP shall include a section identifying and describing:
(A) All significant factors that the agency reasonably expects to
consider in evaluating proposals, including cost or price and all
nonprice-related factors.
(B) The methodology and rating or weighting process that will be
used by the agency in evaluating competitive proposals and
specifically whether proposals will be rated according to numeric or
qualitative values.
(C) The relative importance or weight assigned to each of the
factors identified in the RFP. If a nonweighted system is used, the
agency shall specifically disclose whether all evaluation factors
other than cost or price, when combined, are any of the following:
(i) Significantly more important than cost or price.
(ii) Approximately equal in importance to cost or price.
(iii) Significantly less important than cost or price.
(D) If the contracting agency wishes to reserve the right to hold
discussions or negotiations with offerors, it shall specify the same
in the RFP and shall publish separately or incorporate into the RFP
applicable rules and procedures to be observed by the agency to
ensure that any discussions or negotiations are conducted in a fair
and impartial manner.
(e) (1) The transit operator shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the Director of Industrial Relations. The standardized
questionnaire may not require prospective bidders to disclose any
violations of Chapter 1 (commencing with Section 1720) of Part 7 of
Division 2 of the Labor Code committed prior to January 1, 1998, if
the violation was based on a subcontractor's failure to comply with
these provisions and the bidder had no knowledge of the subcontractor'
s violations and the bidder complied with the conditions set forth in
subdivision (b) of Section 1775 of the Labor Code. In preparing the
questionnaire, the director shall consult with the construction
industry, building trades, transit operators, and other affected
parties. This questionnaire shall require information relevant to the
architecture or engineering firm that will be the lead on the
design-build project. The questionnaire shall include, but is not
limited to, all of the following:
(A) A listing of all the contractors that are part of the
design-build entity.
(B) Evidence that the members of the design-build entity have
completed, or demonstrated the experience, competency, capability,
and capacity 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.
(C) The licenses, registrations, and credentials required to
design and construct the project, including information on the
revocation or suspension of any license, credential, or registration.
(D) 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 transit operator that the
design-build entity has the capacity to complete the project.
(E) Any prior serious or willful violation of the California
Occupational Safety and Health Act of 1973, contained in Part 1
(commencing with Section 6300) of Division 5 of the Labor Code or the
federal Occupational Safety and Health Act of 1970 (P.L. 91-596),
settled against any member of the design-build entity, and
information concerning a contractor member's workers' compensation
experience history and worker safety program.
(F) Information concerning any debarment, disqualification, or
removal from a federal, state, or local government public works
project. Any instance where an entity, its owners, officers, or
managing employees submitted a bid on a public works project and were
found by an awarding body not to be a responsible bidder.
(G) Any instance where the entity, its owner, officers, or
managing employees defaulted on a construction contract.
(H) Any 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 of federal or state
law, including the payment of wages, benefits, apprenticeship
requirements, or personal income tax withholding, or of Federal
Insurance Contribution Act (FICA) withholding requirements settled
against any member of the design-build entity.
(I) Information concerning the bankruptcy or receivership of any
member of the entity, and information concerning all legal claims,
disputes, or lawsuits arising from any construction project of any
member of the entity during the past three years, including
information concerning any work completed by a surety.
(J) If the design-build entity is a partnership, limited
partnership, or other association, a listing of all of the partners,
general partners, or association members who will participate as
subcontractors in the design-build contract.
(K) Information concerning all settled adverse claims, disputes,
or lawsuits between the owner of a public works project and any
member of the design-build entity during the five-year period
immediately preceding submission of a bid pursuant to this section,
in which the claim, settlement, or judgment exceeds fifty thousand
dollars ($50,000). Information shall also be provided concerning any
work completed by a surety during this period.
(L) In the case of a partnership or other association that is not
a legal entity, a copy of the agreement creating the partnership or
association and specifying that all partners or association members
agree to be liable for full performance under the design-build
contract.
(2) The information required pursuant to this subdivision shall be
verified under oath by the entity and its members in the manner in
which civil pleadings in civil actions are verified. Information that
is not a public record pursuant to 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 open to public inspection.
(f) The transit operator shall establish a procedure for final
selection of the design-build entity. Selection shall be subject to
the following conditions:
(1) In no case shall the transit operator award a contract to a
design-build entity pursuant to this article for a capital
maintenance or capacity-enhancing rail project unless that project
exceeds twenty-five million dollars ($25,000,000) in cost.
(2) For nonrail transit projects that exceed two million five
hundred thousand dollars ($2,500,000), the transit operator may award
the project to the lowest responsible bidder or by using the best
value method.
(3) For the acquisition and installation of technology
applications or surveillance equipment designed to enhance safety,
disaster preparedness, and homeland security efforts, there shall be
no cost threshold and the transit operator may award the contract to
the lowest responsible bidder or by using the best value method.
(g) Except as provided in this section, nothing in this act shall
be construed to affect the application of any other law.