HomeMy WebLinkAboutMINUTES - 05032005 - C16 I _
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CONTRA
TO. BOARD OF SUPERVISORS ,
COSTA
FROM: John Sweeten,County Administrator
COUNTY
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DATE: May 3,2005
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SUBJECT: SB 287 (Cox)- Support
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATION(S):
SUPPORT SB 287 (Cox) which would extend the authorization for use of the design-build process for Contra
Costa County and other specified counties.
BACKGROUND/REASON(S)FOR RECOMMENDATION(S):
The 2005 State Legislative Platform contains the following policy position:
Sponsor legislation to continue the current authorization for design-build and lower the cost threshold
for both the lowest responsible bidder and best value process to$1 million.
SB 287 (Cox) extends the authorization date for design-build from the current repeal date of January 1, 2006 to
January 1, 2011. It does not however lower the threshold for use of design-build projects, but rather keeps it at
the current levels of authorization; lowest responsible bidder process for projects costing between $10 and $20
million and lowest responsible bidder or best value process for projects costing more than$20 million.
"le SB 287 does not completely meet the County's legislative policy goals on design-build, it nonetheless is a
step in the right direction.
CONTINUED ON ATTACHMENT: _'e'fiS SIGNATURE:
o�
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION rRDCOMMITTEE
_,�AAPPROVE OTHER
SIGNATURE(S):
ACTION OF BO � i APPROVED AS RECOMMENDED OTHER
7
VOTE OF SUPERVISORS
UNANIMOUS ABSENT �`ti�� 1 HEREBY CERTIFY THAT THIS IS A
{ ) TRUE AND CORRECT COPY OF AN
AYES: NOES: ACTION TAKEN AND ENTERED
ABSENT: ABSTAIN: ON MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE SHOWN.
Contact: Sara Hoffman,33{-1090 / .�
ATTESTED
cc: CAO JOHN SWEETEN,CLERK OF
General Services THE BOARD OF SUPERVISORS
Nielsen Merksamer(via CAO) AND COUNTY ADMINISTRATOR
c�
BY, DEPUTY
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AMENDED IN SENATE APRIL 13, 2005
AMENDED IN SENATE MARCH 29, 2005
SENATE BILL No. 287
Introduced by Senator Cox
February 16, 2005
An act to amend and repeal Section 20133 of the Public Contract
Code,relating to public contracts.
LEGISLATIVE COUNSEL'S DIGEST
SB 2879 as amended,Cox.Design-buildeentme t i 41ql5m-.11184%eNaWr C—smil4q*4-
contracting.
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, until January 1, 2006, permits certain counties, with
the approval of the board of supervisors, to enter into design-build
contracts, as defined, in accordance with specified provisions. These
provisions require that contracts with a cost ranging from$10,000,000
to $20,000,000 be awarded to the lowest responsible bidder, and
authorizes contracts costing more than $20,000,000 to be awarded to
the lowest responsible bidder or by best value.
This bill would , , extend the repeal date of
these provisions, thereby continuing their operation ' until
January 1, 2011. This bill would also add Monterey, Place ,
and San Diego Counties to those counties that may elect to use these
provisions, and would make legislative findings and declarations as to
the necessity of a special statute folthose counties.
This bill would als., tatta Ou"o-Olvetp extend the date of certain
reporting provisions that have expired by operation of law. This bill
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SB 287 2
would require the Legislative Analyst, on or before January 1, 2010,
to submit a report, as specified, to the Legislature on the use of
design-build contracts.
Vote: majority. Appropriation: no. Fiscal committee: eyes.
State-mandated local program: no.
The people of the State of California do enact as follows:
1 SECTION 1. Section 20133 of the Public Contract Code is
2 amended to read:
3 20133. (a) (1) This section provides for an alternative
4 procedure on bidding on building construction projects in excess
5 of ten million dollars ($10,000,000) applicable only in the
ZiZ�Tte, ,
7 Counties of Alameda, Contra Costa, Monterey, Placer,
8 Sacramento, San Diego, Santa Clara, Solano, Sonoma, and
9 Tulare,upon approval of the appropriate board of supervisors.
10 (2) For projects with costs ranging from ten million dollars
11 ($10,000,,000)to twenty million dollars($20,000,000), inclusive,
12 the contract shall be awarded to the lowest responsible bidder.
13 For projects costing over twenty million dollars ($20,000,000),
14 the county may award the project using either the lowest
15 responsible bidder or by best value.
16 (b) (1) It is the intent of the Legislature to enable these
17 counties to utilize cost-effective options for building and
18 modernizing public facilities. It is not the intent of the
19 Legislature to authorize this procedure for transportation
20 facilities, including,but not limited to,roads and bridges.
21 (2) The Legislature also finds and declares that utilizing a
22 design-build contract requires a clear understanding of the roles
23 and responsibilities of each participant in the design-build
24 process.The Legislature also finds that the cost-effective benefits
25 to the counties are achieved by shifting the liability and risk for
26 cost containment and project completion to the design-build
27 entity.
28 (3) It is the intent of the Legislature to provide an alternative
29 and optional procedure for bidding and building construction
30 projects for these counties.
31 (4) The design-build approach may be used, but is not limited
32 to use when it is anticipated that it will: reduce project cost,
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1 expedite project completion, or provide design features not
2 achievable through the design-bid-build method.
3 (5) If the board of supervisors elects to proceed under this
4 section, the board of supervisors shall establish and enforce for
5 design-build projects a labor compliance program containing the
6 requirements outlined in Section 1771.5 of the Labor Code, or it
7 shall contract with a third party to operate a labor compliance
8 program containing the requirements outlined in Section 1771.5
9 of the Labor Code. This requirement shall not apply to any
10 project where the county or the design-build entity has entered
11 into any collective bargaining agreement or agreements that bind
12 all of the contractors performing work on the projects.
13 (c) As used in this section:
14 (1) "Best value" means a value determined by objective
15 '
16 '
17 . criteria related to price,features,functions, and
18 life-cycle costs.
19 (2) "Design-build" means a procurement process in which
20 both the design and construction of a project are procured from a
21 single entity.
22 (3) "Design-build entity"means a partnership, corporation, or
23 other legal entity that is able to provide appropriately licensed
24 contracting, architectural, and engineering services as needed
25 pursuant to a design-build contract.
26 (4) "Project" means the construction of a building and
27 improvements directly related to the construction of a building,
28 but does not include the construction of other facilities and
29 infrastructure, including, but not limited to, transportation,
30 public transit, or water resources facilities and infrastructure.
31 (d) Design-build projects shall progress in a four-step process,
32 as follows:
33 (1) (A) The county shall prepare a set of documents setting
34 forth the scope of the project. The documents may include, but
35 are not limited to, the size, type and desired design character of
36 the buildings and site, performance specifications covering the
37 quality of materials, equipment, and workmanship, preliminary
38 plans or building layouts, or any other information deemed
39 necessary to describe adequately the county's needs. The
40 performance specifications and any plans shall be prepared by a
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SB 287 —4—
1 design professional who is duly licensed and registered in
2 California.
3 (B) Any architect or engineer retained by the county to assist
4 in the development of the project specific documents shall not be
5 eligible to participate in the preparation of a bid with any
6 design-build entity for that project.
7 (2) (A) Based on the documents prepared in paragraph(1),the
8 county shall prepare a request for proposals that invites interested
9 parties to submit competitive sealed proposals in the manner
10 prescribed by the county. The request for proposals shall include,
11 but is not limited to,the following elements:
12 (i) Identification of the basic scope and needs of the project or
13 contract, the expected cost range, and other information deemed
14 necessary by the county to inform interested parties of the
15 contracting opportunity, to include the methodology that will be
16 used by the county to evaluate proposals and specifically if the
17 contract will be awarded to the lowest responsible bidder.
18 (ii) Significant factors which the county reasonably expects to
19 consider in evaluating proposals, including cost or price and all
20 nonprice related factors.
21 (iii) The relative importance of weight assigned to each of the
22 factors identified in the request for proposals.
23 (B) With respect to clause (iii) of paragraph (A), if a
24 nonweighted system is used, the agency shall specifically
25 disclose whether all evaluation factors other than cost or price
26 when combined are:
27 (i) Significantly more important than cost or price.
28 (ii) Approximately equal in importance to cost or price.
29 (iii) Significantly less important than cost or price.
30 (C) If the county chooses to reserve the right to hold
31 discussions or negotiations with responsive bidders, it shall so
32 specify in the request for proposal and shall publish separately or
33 incorporate into the request for proposal applicable rules and
34 procedures to be observed by the county to ensure that any
35 discussions or negotiations are conducted in good faith.
36 (3) (A) The county shall establish a procedure to prequalify
37 design-build entities using a standard questionnaire developed by
38 the county. In preparing the questionnaire, the county shall
39 consult with the construction industry, including representatives
40 of the building trades and surety industry. This questionnaire
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1 shall require information including, but not limited to, all of the
2 following:
3 (i) If the design-build entity is a partnership, limited
4 partnership, or other association, a listing of all of the partners,
5 general partners, or association members known at the time of
6 bid submission who will participate in the design-build contract,
7 including,but not limited to, mechanical subcontractors.
8 (ii) Evidence that the members of the design-build entity have
9 completed, or demonstrated the experience, competency,
10 capability, and capacity to complete projects of similar size,
11 scope, or complexity, and that proposed key personnel have
12 sufficient experience and training to competently manage and
13 complete the design and construction of the project, as well as a
14 financial statement that assures the county that the design-build
15 entity has the capacity to complete the project.
16 (iii) The licenses, registration, and credentials required to
17 design and construct the project, including information on the
18 revocation or suspension of any license, credential, or
19 registration.
20 (iv) Evidence that establishes that the design-build entity has
21 the capacity to obtain all required payment and performance
22 bonding, liability insurance, and errors and omissions insurance.
23 (v) Any prior serious or willful violation of the California
24 Occupational Safety and Health Act of 1973, contained in Part 1
25 (commencing with Section 6300) of Division 5 of the Labor
26 Code or the federal Occupational Safety and Health Act of 1970
27 (Public Law 91-596), settled against any member of the
28 design-build entity, and information concerning workers'
29 compensation experience history and worker safety program.
30 (vi) Information concerning any debarment, disqualification,
31 or removal from a federal, state, or local government public
32 works project. Any instance where an entity, its owners, officers,
33 or managing employees submitted a bid on a public works
34 project and were found to be nonresponsive, or were found by an
35 awarding body not to be a responsible bidder.
36 (vii) Any instance where the entity, its owner, officers, or
37 managing employees defaulted on a construction contract.
38 (viii) Any violations of the Contractors' State License Law
39 (Chapter 9 (commencing with Section 7000)of Division 3 of the
40 Business and Professions Code), excluding alleged violations of
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1 federal or state law including the payment of wages, benefits,
2 apprenticeship requirements,or personal income tax withholding,
3 or of Federal Insurance Contribution Act (FICA) withholding
4 requirements settled against any member of the design-build
5 entity.
6 (ix) Information concerning the bankruptcy or receivership of
7 any member of the design-build entity, including information
8 concerning any work completed by a surety.
9 (x) Information concerning all settled adverse claims,disputes,
10 or lawsuits between the owner of a public works project and any
11 member of the design-build entity during the five years preceding
12 submission of a bid pursuant to this section, in which the claim,
13 settlement,or judgment exceeds fifty thousand dollars($50,000).
14 Information shall also be provided concerning any work
15 completed by a surety during this period.
16 (xi) In the case of a partnership or other association,that is not
17 a legal entity, a copy of the agreement creating the partnership or
18 association and specifying that all partners or association
19 members agree to be fully liable for the performance under the
20 design-build contract.
21 (B) The information required pursuant to this subdivision shall
22 be verified under oath by the entity and its members in the
23 manner in which civil pleadings in civil actions are verified.
24 Information that is not a public record pursuant to the California
25 Public Records Act (Chapter 3.5, Division 7, Title 1 of the
26 Government Code) shall not be open to public inspection.
27 (4) The county shall establish a procedure for final selection of
28 the design-build entity. Selection shall be based on either of the
29 following criteria:
30 (A) A competitive bidding process resulting in lump-sum bids
31 by the prequalified design-build entities. Awards shall be made
32 to the lowest responsible bidder.
33 (B) A county may use adesign-build competition based upon
34 best value and other criteria set forth in paragraph (2) of
35 subdivision (d). The design-build competition shall include the
36 following elements:
37 (i) Competitive proposals shall be evaluated by using only the
38 criteria and selection procedures specifically identified in the
39 request for proposal. However, the following minimum factors
40 shall collectively represent at least 50 percent of the total weight
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1 of consideration given to all criteria factors; price, technical
2 design and construction expertise, life cycle costs over 15 years
3 or more, skilled labor force availability, and acceptable safety
4 record.
5 (ii) Once the evaluation is complete, the top three responsive
6 bidders shall be ranked sequentially from the most advantageous
7 to the least.
8 (iii) The award of the contract shall be made to the responsible
9 bidder whose proposal is determined, in writing, to be the most
10 advantageous.
11 (iv) Notwithstanding any provision of this code,upon issuance
12 of a contract award,the county shall publicly announce its award,
13 identifying the contractor to whom the award is made, along with
14 a written decision supporting its contract award and stating the
15 basis of the award. The notice of award shall also include the
16 county's second and third ranked design-build entities.
17 (v) For the purposes of this paragraph, "skilled labor force
18 availability" shall be determined by the existence of an
19 agreement with a registered apprenticeship program,approved by
20 the California Apprenticeship Council, which has graduated
21 apprentices in each of the preceding five years. This graduation
22 requirement shall not apply to programs providing apprenticeship
23 training for any craft that has been deemed by the Department of
24 Labor and the Department of Industrial Relations to be an
25 apprenticeable craft in the five years prior to enactment of this
26 act.
27 (vi) For the purposes of this paragraph, a bidder's "safety
28 record" shall be deemed "acceptable" if their experience
29 modification rate for the most recent three-year period is an
30 average of 1.00 or less, and their average Total Recordable
31 Injury/Illness rate and average lost work rate for the most recent
32 three-year period does not exceed the applicable statistical
33 standards for its business category or if the bidder is a party to an
34 alternative dispute resolution system as provided for in Section
35 3201.5 of the Labor Code.
36 (e) (1) Any design-build entity that is selected to design and
37 build a project pursuant to this section shall possess or obtain
38 sufficient bonding to cover the contract amount for nondesign
39 services,and errors and omission insurance coverage sufficient to
40 cover all design and architectural services provided in the
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1 contract. This section does not prohibit a general or engineering
2 contractor from being designated the lead entity on a
3 design-build entity for the purposes of purchasing necessary
4 bonding to cover the activities of the design-build entity.
5 (2) Any payment or performance bond written for the
6 purposes of this section shall be written using a bond form
7 developed by the county.
8 (f) All subcontractors that were not listed by the design-build
9 entity in accordance with clause (i) of subparagraph (A) of
10 paragraph (3) of subdivision (d) shall be awarded by the
11 design-build entity in accordance with the design-build process
12 set forth by the county in the design-build package. All
13 subcontractors bidding on contracts pursuant to this section shall
14 be afforded the protections contained in Chapter 4 (commencing
15 with Section 4100) of Part 1. The design-build entity shall do
16 both of the following:
17 (1) Provide public notice of the availability of work to be
18 subcontracted in accordance with the publication requirements
19 applicable to the competitive bidding process of the county.
20 (2) Provide a fixed date and time on which the subcontracted
21 work will be awarded in accordance with the procedure
22 established pursuant to this section.
23 (g) The minimum performance criteria and design standards
24 established pursuant to paragraph (1) of subdivision (d) shall be
25 adhered to by the design-build entity. Any deviations from those
26 standards may only be allowed by written consent of the county.
27 (h) The county may retain the services of a design professional
28 or construction project manager, or both, throughout the course
29 of the project in order to ensure compliance with this section.
30 (i) Contracts awarded pursuant to this section shall be valid
31 until the project is completed.
32 (j) Nothing in this section is intended to affect, expand, alter,
33 or limit any rights or remedies otherwise available at law.
34 (k) (1) If the county elects to award a project pursuant to this
35 section retention proceeds withheld by the county from the
36 design-build entity shall not exceed 5 percent if a performance
37 and payment bond, issued by an admitted surety insurer, is
38 required in the solicitation of bids.
39 (2) In a contract between the design-build entity and the
40 subcontractor, and in a contract between a subcontractor and any
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1 subcontractor thereunder, the percentage of the retention
2 proceeds withheld may not exceed the percentage specified in the
3 contract between the county and the design-build entity. If the
4 design-build entity provides written notice to any subcontractor
5 who is not a member of the design-build entity, prior to or at the
6 time the bid is requested, that a bond may be required and the
7 subcontractor subsequently is unable or refuses to furnish a bond
8 to the design-build entity, then the design-build entity may
9 withhold retention proceeds in excess of the percentage specified
10 in the contract between the county and the design-build entity
11 from any payment made by the design-build entity to the
12 subcontractor.
13 (Z) Each county that elects to proceed under this section and
14 uses the design-build method on a public works project shall
15 submit to the Legislative Analyst's office before December 1,
16 2009, a report containing a description of each public works
17 project procured through the design-build process and completed
18 after November 1, 2004, and before November 1, 2009. The
19 report shall include, but shall not be limited to, all of the
20 following information:
21 (1) The type of project.
22 (2) The gross square footage of the project.
23 (3) The design-build entity that was awarded the project.
24 (4) The estimated and actual length of time to complete the
25 project.
26 (S) The estimated and actual project costs.
27 (6) A description of any written protests concerning any
28 aspect of the solicitation, bid, proposal, or award of the
29 design-build project, including the resolution of the protests.
30 (7) An assessment of the prequalification process and criteria.
31 (8) An assessment of the effect of retaining 5 percent retention
32 on the project.
33 (9) A description of the Labor Force Compliance Program
34 and an assessment of the project impact, where required.
35 (10) A description of the method used to award the contract.If
36 best value was the method, the report shall describe the factors
37 used to evaluate the bid, including the weighting of each factor
38 and an assessment of the effectiveness of the methodology.
39 (11) An assessment of the project impact of "skilled labor
40 force availability."
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1 (12) An assessment of the design-build dollar limits on county
2 projects. This assessment shall include projects where the county
3 wanted to use design-build and was precluded by the dollar
4 limitation. This assessment shall also include projects where the
5 best value method was not used due to dollar limitations.
6 (13) An assessment of the most appropriate uses for the
7 design-build approach.
8 (m) Any county named in subdivision (a) that elects to not use
9 the authority granted by this section may submit a report to the
10 Legislative Analyst's office explaining why the county elected to
11 not use the design-build method.
12 (n) On or before January 1, 2010, the Legislative Analyst shall
13 report to the Legislature on the use of the design-build method by
14 counties pursuant to this section, including the information listed
15 in subdivision (1). The report may include recommendations for
16 modifying or extending this section.
17 (o) This section shall remain in effect only until January 1,
18 2011, and as of that date is repealed, unless a later enacted
19 statute, that is enacted before January 1, 2011, deletes or extends
20 that date.
21 SEC. 2. The Legislature fords and declares that a special law
22 is necessary and that a general law cannot be made applicable
23 within the meaning of Section 16 of Article IV of the California
24 Constitution because of the unique need to build and modernize
25 public facilities in acost-effective manner in
26 Monterey, Placer, and San Diego Counties.
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