HomeMy WebLinkAboutMINUTES - 10211986 - 2.6 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on October 21 , 1986 , by the following vote:
AYES: Supervisors Fanden, Schroder, McPeak, Torlakson, Powers
NOES: None
ABSENT: None
ABSTAIN: None
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SUBJECT: Bidding Process Policy
On September 16, 1986 the Board requested County Counsel
to review and report on the status of pending legislation dealing
with the bidding process and the imposition of standards on
construction contractors.
The Board received the attached report dated October 9 ,
1986 from Victor J. Westman, County Counsel related to AB 1464 which
permits the County to require that a construction contract be awarded
to the lowest responsible bidder who meets or makes a good faith
effort to meet goals and requirements relating to participation in
the contract by minority or women-owned business enterprises.
Board members having discussed the matter, IT IS BY THE
BOARD ORDERED that the issue of a bidding process policy and the
imposition of standards on construction contractors is REFERRED to
the County Administrator.
cc: County Administrator
County Counsel
1 hereby certify that this Is a true and correctcopy of
an action taken and entered on the minutes of the
Board of Supervisors
onthedate shown.
ATTESTED:
PHIL.BATCHELOR, Clerk of the Board
of Supervisors and County Administrator
By6r � , Deputy
L t Y �"`'lY�l➢
COUNTY COUNSEL'S OFFICE RECEIVED
CONTRA COSTA COUNTY
Date: MARTINEZ, CALIFORNIA
October 9 , 19s6 OCT q 196
PHIL BATCHELOR
TO: Board of Supervisors LE ARA CO pEpISORS
OV(, `' • Dmty
From: Victor J. Westman, County Counsel
By: Silvano B. Marchesi , Ass ' t County Counse��
Re: Bidding Process Policy
This responds to the 9-16-86 request by the Board for a
report on the status of pending legislation dealing with the
bidding process and the imposition of standards on construction
contractors .
On 30 September 1986 the Governor signed AB 1464, which has
been designated as Chapter 1060 of the 1986 Statutes . This law
permits (but does not require ) the County to require that a
construction contract be awarded to the lowest responsible bidder
who meets , or makes a good faith effort to meet, goals and
requirements established by the County, relating to participation
in the contract by minority-or women-owned business enterprises
(MBE/WBE) .
Chapter 1060 establishes criteria to judge whether a bidder
has made a good faith effort to meet the County' s goals and
requirements . Some of the factors which must be considered are
whether the bidder attended a pre-bid meeting scheduled by the
County to inform all bidders of the MBE/WBE program requirements ,
whether the bidder identified specific items of the project to be
performed by MBEs or WBEs, whether the bidder advertised in trade
publications for MBEs and WBEs , etc. The Chapter goes into effect
on 1 January 1987 , and applies to all projects for which a request
for bids is made on or after that date .
A copy of Chapter 1060 is attached for your ready reference.
This law provides the only statutory authority for awarding a
public works contract to someone other than the lowest responsible
bidder, and the Legislature has
"occupied the whole field of the regulation of.
procedures for determining good faith
efforts by bidders on public works
contracts . " (Chapter 1060, Sec. 4 ) .
If pursuant to Chapter 1060 the Board wishes to consider
establishing MBE/WBE goals and requirements for construction
Board of Supervisors October 9 , 1986
contract bidders, we suggest that the affected departments (e.g. ,
County Administrator , General Services , Public Works, and County
Counsel) be directed to meet, begin the task, and submit a report
to the Board. We understand that the West County Justice Center
Advisory Committee may soon be asked to recommend that the Board
adopt an MBE policy for all "purchasing and contracts procurement
program(s ) . It would be desirable that all MBE/WBE policies on
public works projects be consistent.
This office is available to discuss this matter in further
detail, and to assist in the preparation of MBE/WBE goals and re-
quirements, if the Board wishes .
In passing, we note that SB 2532 was vetoed by the Governor.
That bill would have required that public works contracts provide
that at least 50% of the total worker hours performed in .each
craft be performed by California residents . Because of the veto,
residence still is not a basis for awarding a public works
contract to a contractor other than the lowest responsible bidder.
SBM:df
cc: County Administrator
General Services Director
Public Works Director
-2-
'AMENDED IN SENATE AUGUST 28, 19
AMENDED IN SENATE AUGUST 14, 1986
( AMENDED IN SENATE MAY 28, 1986 ,
AMENDED-IN SENATE MAY 23, 1986
AMENDED IN SENATE JULY 18, 1985 C . my Counsel
AMENDED. IN SENATE JULY 152 1985 S t P 0 ,91986
AMENDED IN SENATE JULY 92 1985 Martinez 'CA 945
AMENDED-IN SENATE JUNE"27, 1985
AMENDED IN ASSEMBLY MAY 152 1985 " -
AMENDED IN ASSEMBLY MAY 62 1985 .
CALIFORNIA LEGISLATURE-19M.-M REGULAR SESSION
ASSEMBLY BILI, No. .1464, �
Introduced by Assembly Members Harris and Roos
(Principal coauthors: Senators Lockyer, Petris, and Bill
Greene)
March 5, 1985
An act to amend SeeSen 14837 4-2 aid to add Seetiee 448394
te., add Section 14030.5 to the Government Code, and to add
Chapter 2 (commencing with Section 2000) to Part 1 of
r Division 2 of the Public Contract Code, relating to contracts.
°l LEGISLATIVE COUNSEL'S DIGEST
AB 1464, as amended, Harris. Local agencies: contracts:
affirmative .action. -
(1) Existing . law provides €" the 8ffiee of Small aftd
���►agi�ess��#fie of mal Se�+iees
wit
3 speei€ed dirties attd respensibili
89 40
y�
AB 1464 — 2 —
Existing
2 —Existing lay+- ender the e€ the mall Basioess
�r�o�isierts
D....,,...»,._..,,. „a alit:[ 6entraet Ant-, ttIse requires the directors o
the �� of �� Se Ines a e€ ether sgetteies, 1
ieh eentraet €er the eanstruetieft of state r6eilities- to
establish-geals to the ant whieh acre ee rsistent vVith
hese established by the O iee of Small and Mioerity Business
specifies the powers and duties of the State Department of )
Transportation.
This bill, in addition, would require the of
Tr-aftsp4tff ee department to certify socially and
economically -disadvantaged- small business concerns, as
defined ; whieh "tay qttalif� for eentraets whieh fre awarded
pufsuftftt to the Small Business Pr-e ,.._......, t acid bentraet
Aet. lit ftdditief; the direeters of all state ageneies whieh
w&a- d eantraets.pur-scant to the aet. Under the bill, all state
agencies would be required, and all local agencies would be
permitted, to accept the certification completed by -the
Pepet =t of sperm department for any socially
and economically disadvantaged small business concern as
valid status of that business when awarding contracts ; and
wattld net be to require to those business concerns. 'l.
The bill would prohibit state agencies from requiring the
business to comply with any other. certification process.
(2) Existing law generally requires local agencies, in
awarding contracts . for a project for which competitive
bidding is required, to award the contract to the lowest
responsible bidder. Statutory law contains no express
authorization for a local agency to reject any bid on the basis
of the bidder's failure to comply with applicable affirmative
action programs.
This bill would authorize a local agency, including a
chartered city, to require that a contract be awarded to the
lowest responsible bidder who meets, or makes a good faith
effort to meet, goals and requirements established by the local
agency relating to participation in the contract by minority or
women business enterprises, as defined. The :bill would
specify the criteria for determining whether a bidder has
made a good faith effort to comply with those goals and
requirements.
The bill would not apply to specified contracts ; p
89 60
-3 — AB`1464
ss or local agencies.
The bill would- make various findings and declarations by
the ]Legislature and would declare the Legislature's intent
that these provisions shall be the exclusive procedure for
h iffipesieg affirmative- -aetion requiremeots eft- bidders..
ss determining tiuhether bidders have made a good-faith effort
to comply with those.goals and requirements.
These provisions of the bill would apply to projects.-for
g€ which public notice of an invitation to bid on a project is given
�d on or after January 1, 1987.
as Vote: majority._Appropriation: no. Fiscal committee: yes.
Stage-mandated-local program: no.
-
41 The people of the State of California do enact as follows:
Ce r ...
)e 1 SEGP 4: Seetien 44837 of the Geyernment bode
ie 2 is aided to read-
ly 3 X483; T4s ttsed tiff this ehapter the fellewing terms
as 4 inewt,
id ( 5 -(a} "Departm meafts the Department 4 General
fs. ( . `. 6
ie 7 -{43} 46-Director- means the Direeter of General
8 Serviees.
in 9 •{e} "Smetil bus4tess=
AB 1464 — 4 —
' 1 cul bidder sl3all net eiretimyent. the intent of tbis � � 6!
2 ehapter, and the direeter ffwy fake aeeetint of other N
3 releve.Ft faeters as deter by regulation-.. i
4 " �d+
_ 5 SECTION I. Section 14030.5 _is added to the ) :
_ 6 Government Code, to read:
7 14030.5. (a) As. used in this section, the following )
8 . terms have the following meanings:
9..: , : (1-) "Socially and economically, disadvantaged small
10 business concern" means a sfrall business ee ee
11 business that meets both of the following-criteria: 7 _
_ 12 = (A) A business that is at least 51 percent owned by one
13 or more socially and economically disadvantaged persons
14 or one or more socially or economically disadvantaged
15 persons or, in the case of any business whose stock is
16 publicly held, at least 51 percent of the stock is owned by
17 one or more of those persons. i
18 (B) A business whose management and daily business
19 operations are controlled by one or more socially and
20 economically disadvantaged persons or one or more v
21 socially or economically disadvantaged persons. . )
22 (2) "Socially and economically disadvantaged
23 persons" and "socially or economically disadvantaged
24 persons" include women, Black Americans, Hispanic
25 Americans, Native Americans (including American' �.
26 Indians, Eskimos, Aleuts, and Native Hawaiians),
27 Asian-Pacific Americans (including persons .whose
28 origins are from Japan, China, the Philippines, Vietnam,
29 Korea, Samoa, Guam, the United States Trust Territories
30 of the .Pacific, Northern Marianas, Laos, Cambodia, and
31 Taiwan), and other minorities or any other group of
32 natural persons determined by the director to be so
33 disadvantaged.
34 SEC. 2- See4eft 148398 is added to the Geye nment.
35 (b) The department shall certify socially and
36 economically disadvantaged business concerns, - as
37 defined by subdivision (a). All state agencies shall, and
38 any local agency may, accept the certification of socially
39 and economically disadvantaged business concern by the
-40 department as valid status of that business when
89 130
.5 — AB 1464
I l awarding contracts to socially and economically
r 2 disadvantaged business concerns. No state agency shall
F 3 require the business to comply with any other
4 certification process for certifying socially_ and
the 5 economically disadvantaged business concerns. _
z r 6 Cede, to read-
ring ) 'j 1 7 M899--& -(e* The Depa n+ e€amort& sal
8 eery` gam` sal
}} rl 9 business as defamed 8eetien 4483!;;Wkieh
sera 1 10 quetli6- €or eentraets whieh are stweasded pur-suant to this
one 12 -(b} The direeters of a$ state ageneies whieh awa d -
sons 13 meets per-stiant to this ehapter fthafl aeeept the
aged }i 14 _fifte. 6ei eempleted by the Department of
!k is ; 15 mar- at fey anyseeia a y
3 by ?; 16 disadymttaged steab business asdefined tift
us 17 8eetir 411837, as vakd .states of flwtt business when
ness 18 a *1ieg eentraets, and sht& not requitse the business to
and 19 eek 3 ` otoeeess
lore ` 20 &)� 3
((7 `. 21 SEG 2. Chapter_2 (commencing with Section 2000) is
iged 22 added to Part 1 of Division 2 of the Public Contract Code,
lged 23 to read:
anic 24
ican kA 25 CHAPTER 2. RESPONSIVE BIDDERS
lns), 26
hose 27 2000. (a) Notwithstanding any other provision of law
i.am, 28 requiring a local agency to award contracts to the lowest
pries 29 responsible bidder, any local agency may require that a
and 30 contract be awarded to the lowest responsible bidder
p of 31 who also does either of the following:
e so 32 (1) Meets goals and requirements established by the
33 local agency relating to participation in the contract by
Reftt
(JI 34 minority business enterprises and women business
and 35 enterprises. If the bidder does not meet the goals and
as 36 requirements established by the local agency for that
and 37 participation, the local agency shall evaluate the good
dally 38 faith effort of the bidder to comply with those goals and
r the 39 requirements as provided in paragraph (2).
cher (1 40 (2) Makes a good faith effort, in-accordance with the-
•9 130 89 150
AB 1464 — 6 —
I
6 -1 criteria established pursuant to subdivision (b), prior to `
2 the time bids are opened, to comply with the goals and {;y
3 requirements established by the local agency relating to
4 participation -in the contract by minority or women xi .
5 business enterprises.
6 (b) (1) The bidder attended arry presolicitation .or
>`
7 prebid meetings that were scheduled by the local agency � l%
- 8 to inform all bidders of the minority and .women business --
9 enterprise program- requirements for .the project for
10 which the contract will be awarded. A local agency may
11 waive this requirement if it determines that the bidder is
12 informed as to those program requirements.
13 (2) The bidder identified and selected specific items
14 of the project for which the contract will be awarded to
15 be performed by minority or women business enterprises
16 to provide an opportunity for participation by those
17 enterprises.
18 (3) The bidder advertised, not less than 10 calendar
19 days before the date the bids are opened, in one or more
20 daily or weekly newspapers, trade association
21 publications, minority or trade oriented publications, -
22 trade journals, or other media, specified by the local
23 agency for minority or women business enterprises that
24 are interested in participating in the project. This
25 paragraph applies only if the local agency gave public
26 notice of the project not less than 15 calendar days prior
27 to the date the bids are opened.
28 (4) The bidder provided written notice of his or her
29 interest in bidding on the contract to the. number of
30 minority or women business enterprises required to be
31 notified by the project specifications not less than 10
32 calendar days prior to the opening of bids. To the extent
33 possible, the local agency shall make available to the (�
34 bidder not less than 15 calendar days prior to the date the ,
35 bids are opened a list or a source of lists of enterprises
36 which are certified by the local agency. as minority or
37 women business enterprises. If the local agency does,not
38 provide that list or source of lists to the bidder, the bidder
39 may utilize. the list of certified minority or women
40 business enterprises prepared by the Department of
89 170
(T�
—7 — AB 1464
to 1 Transporation pursuant to Section 14839.2 14030.5 of the
A 2 Government Code for this purpose.
to 3 (5) The bidder followed up initial solicitations of
,n 4 interest by contacting the enterprises to determine with
- 5 certainty whether the enterprises were interested in
)r - _ 6 performing specific items of the project.
,y 7 (6) The bidder provided interested minority and
ss 8 -women businessenterprises with information about the
)r 9 plans, specifications, and requirements for the selected
iy = :a. 10 subcontracting or material supply work.
is 11 (7) The bidder requested assistance from minority
12 . and women community organizations; minority and
1s 13_ women contractor groups; local, state, or federal minority
to 14 and women business assistance offices; or other
os 15 organizations that provide assistance inthe recruitment
ie 16 and placement of minority or women business
17 enterprises, if any are available.
Eir 18 (8) The bidder negotiated in good faith with the
re 19 minority, or. women business enterprises, and did not
)n . 20 unjustifiably reject as unsatisfactory bids prepared by any
is f' �. -` 21 minority or women business enterprises, as determined
at 22 by the local agency.
at 23 (9) Where applicable, the bidder advised and made
as 24 efforts to assist interested minority and women business
is 25 enterprises in obtaining bonds, lines of credit, or
:)r 26 insurance required by the local agency or contractor.
27 (10) The bidder's efforts to obtain minority and
�r 28 women business enterprise participation could
of 29 reasonably be expected by the local agency to produce a
,e 30 level of participation sufficient to meet the goals and
10 31 requirements of the local agency.
nt 32 . (c) The performance by a bidder of all of the criteria
le 33 specified in subdivision (b) shall create a rebuttable
ie 34 presumption, affecting the burden of producing
es 35 evidence, that a bidder has made a, good faith effort to
�r 36 comply with the goals and requirements relating to
of 37 participation by minority and women business
a,r 38 enterprises established pursuant to subdivision (a).
.n 39 (d) "Local agency," as used in this section, means a
of C ! 40 county or city, whether general law or chartered, city and
170 89 190
AB 1464 —8— .
1 county, or district. "District," as used in this section �^f'' .
2 means an agency of the state, formed pursuant to general l
3 law or special act, for the local performance of
4 governmental or proprietary functions within limited -
5 boundaries. _
6 (e) "Minority or women.business enterprise," as used
7 in this section, means a business enterprise that meets
8 both of the following criteria:
9 (1) A:business that is at least 51 percent owned by one
10 or more minority persons or women or, in the.case of any
11 business whose!stock is publicly-held; at least 51 percent.
12 of the stock is owned by one or more minority persons or
13 women:
14 (2) A business whose management and daily business
15 operations are controlled by .one or more minority
16 persons or women.
17 (f) "Minority person," for purposes of this section,
18 'means Black Americans, Hispanic Americans, Native
19 _Americans (including American Indians, Eskimos,
20 Aleuts, and Native Hawaiians), Asian-Pacifie Americans
21 (including persons whose origins are from Japan, China,
22 the Philippines, Vietnam, . Korea, .Samoa, Guam, the
23 United States Trust Territories of the Pacific, Northern
24 Marianas, Laos, Cambodia, and Taiwan), or any other
25 group of natural persons identified as. minorities in the C
26 project specifications by the local agency.
27 (g) This section does not apply to any of the following:
28 (1) Any contract, funded in whole or in part by the
29 federal government, to the extent of any conflict
30 between the requirements imposed by this section and
31 any requirements imposed by the federal government
32 relating to participation in a contract by a minority or
33- women business enterprise as a condition of receipt of the rr
34 federal funds.
35 Afty prsg eemmenly referred to as a
�
36 perer�ee a se0aside p eg ;estate by a e�
37 prewisien ew.. a'ft eaeee pufeuaftt .te whieh a lee4-
38 ageeey tseqttires th4 a eer-tain per-tien of the amount e€
39 a eetttfaet be to mitterity or women busin6ss
40 enterp.-19e..
89 210
-9 — `AB 1464
tior--
sera: 2 (2) The San Francisco Bay Area Rapid Transit
of 3 District, the Los Angeles . County Transportation
cited 4 Commission, or any other local agency that has authority
_ 5 to facilitate the participation of minority or women
used = = 6 business enterprises-substantially similar to the authority
leets `)l 7 granted to the San Francisco Bay Area Rapid .Transit
8 District pursuant to Section 20229 of the Cilie Gentreet
one 9 Gede this code or the Los Angeles County Transportation
any 10 Commission pursuant to Section 130239 of the Public
cent 11 Utilities Code. _
as or - 12 SEG. 4
13 SEC -3. The Legislaturefinds and declares that
iness - 14 existing statutes requiring that contracts be let to the
ority 15 "lowest responsible bidder" have prevented many local
16 agencies from considering the responsiveness of a bidder
tion, 17 to affirmative action or minority- or women. business
Aive 18 enterprise requirements. The Legislature further finds
mos, 19 and declares that the eneouragement of unif _
�`` 20 aetien :end � ep � besiaess
hin s `� ) 21 mise is a matter e€stettewide eefteer and
the - 22 � rylapreyisiee of airy
kern 23 ekarter e€ a ehartered eity to the emtent e€ aey een liet.
>ther 24 SEG 55it is 'necessary to establish uniformity in
1 the 25 determining whether or not bidders on public works
26 contracts have made a good faith effort to meet the goals
ging: 27 and requirements established by a local agency regarding
7 the 28 the participation in the contract by minority business
:iflict 29 enterprises and . women business enterprises. The .
and 30 Legislature further Ends and declares that the
hent 31 encouragement of, and participation by, minority and
ty or 32 women business enterprises in public works contracts is
)f the 33 a matter of statewide concern.
J% 34 SEC. 4. It is the intention of the Legislature through
a 35 the enactment of Sections 3 a d 4 2 and 3 of this act to
anter 36 occupy the whole field of the regulation of affirmatilve
lel 37 oetiee tte appheable to t i3e leWng e€e= T=
ftt e€ 38 by leeal ageeeies procedures for determining good faith
leesg 39 efforts by bidders on public works contracts. Thus, if a
.40 local agency determines to exercise the authority granted
19 210 89 230
AB 1464 _ 10 —
I
10 -1 by subdivision (a) of Section 2000 of the Public Contract'
2 Code, the requirements. imposed by that section shall,
3 except as otherwise.provided in subdivision (g) of that
4 section, be the exclusive procedure for iesig
5 wive "chert As ere
6 51G: 6: Seetiens 3 afid _4 determining whether
7 bidders have.made a ood fakitheffort to meet the oalsgg8 rind requirements establied by the local agency
9- regarding participation in contracts by minority business
10 enterprises and women business enterprises. Section 2 of
11 this act prevails, to the extent of any conflict, over any
12 provision of any charter.of a .chartered city establishing
13 -requirements and procedures for determining whether
14 bidders have made a good faith effort to comply with the :I
15 goals and requirements established by the local agency
16 relating to participation in .the contract by minority or
17 women business enterprises.
18 SEC 5. Sections 2 and 3 of this act apply to projects i
19 for which a public notice of invitation to bid on a project
20 is published or disseminated'in-the manner ;otherwise
21 " prescribed by law on or after January 1, 1987 �t
O (( ,,
89 2,50