SECTIONS 20216-20217 - California Statutes

PUBLIC CONTRACT CODE

SECTION 20216-20217

20216. (a) Notwithstanding any other provision of law, any contract
by the San Francisco Bay Area Rapid Transit District, the Southern
California Rapid Transit District, the Golden Gate Bridge, Highway
and Transportation District, the Sonoma-Marin Area Rail Transit
District, the San Diego Metropolitan Transit Development Board, the
North San Diego County Transit Development Board, a county
transportation commission that is subject to the competitive
negotiation provisions of Section 20229.1, 20231.5, or 20916.3 of
this code, or Section 120224.4, 125228, or 130238 of the Public
Utilities Code, a transit district, city, county, city and county, or
transportation agency, that is subject to the competitive
negotiation provisions of Section 20217, and any other transportation
agency that is authorized to use comparable competitive negotiation
provisions after July 1, 1992, shall comply with the requirements of
this section.
(b) Other than proprietary information, the content of any request
for proposal, any proposal received, and any other communications
between a transportation agency and a potential bidder on a contract
that is subject to subdivision (a) shall be made available to the
public no later than the same time that a recommendation for awarding
a contract is made to the governing board or persons responsible for
approving the award of a contract to a bidder, except that the price
proposed in any bidder's initial proposal shall be available upon
the opening of the bid by the agency requesting the proposal.
(c) No person may participate in the evaluation of any proposal
for the award of a contract that is subject to subdivision (a) if any
of the following conditions apply:
(1) The person has a financial interest in the outcome of the
evaluation or the contract.
(2) The person has received a gift of over two hundred fifty
dollars ($250) during the previous 12 months from a bidder directly,
or indirectly through an intermediary, if it is known to the person
that the gift was in whole or in part funded by the bidder.
(d) The agency board or any person responsible for awarding a
contract under this article shall not have any ex parte communication
with a bidder or any representative of the bidder except in writing
and if the communication is made public.
(e) A contract may not be awarded until 15 days after the staff
recommendation has been made available to the public.
(f) An agency using the competitive negotiation process shall
maintain in writing, and make available upon request, a complete
description of the process and the policies and procedures used by
the agency in doing so, including all standards, criteria, public
protest procedures, and method of contract award. The agency shall
also keep a complete record of its actions on each procurement.
(g) For purposes of this section and Sections 20217, 20229.1,
20231.5, and 20916.3 of this code and Sections 120224.4 and 130238 of
the Public Utilities Code, "competitive negotiation" means a
procurement process used by an agency in lieu of a competitive sealed
bid process when conditions are not appropriate for the use of
sealed bids, and that permits the consideration of price, technical
experience, past performance, management, or other factors in
selecting the most cost-effective proposal for the manufacture and
delivery of specified goods, transit vehicles, or equipment. The
process includes negotiations with manufacturers or providers after
the receipt of initial proposals during which performance or
technical standards and other criteria may be revised in order to
secure proposals most advantageous to the purchasing agency or to
cure any deficiencies contained in the original proposals.

20217. (a) The Legislature finds and declares that the award of
purchase contracts by transit agencies under competitive bid
procedures may not be feasible for products and materials that are
undergoing rapid technological changes or for the introduction of new
technologies into agency operations, and that in these circumstances
it is in the public interest to consider the broadest possible range
of competing products and materials available, fitness of purpose,
manufacturer's warranty, vendor financing, performance reliability,
standardization, life cycle costs, delivery timetables, support
logistics, and other similar factors in addition to price in the
award of these contracts.
(b) Notwithstanding any other provision of law, the governing
board of a transit district, city, county, city and county, or
transportation agency may direct the purchase of (1) computers,
telecommunications equipment, fare collection equipment, radio and
microwave equipment, and other related electronic equipment and
apparatus used in transit operations ; (2) specialized rail transit
equipment, including, but not limited to, railcars; (3) buses; and
(4) passenger ferries, by competitive negotiation upon a finding by
two-thirds vote of all members of the board that the purchase of
those products or materials in compliance with provisions of this
code generally applicable to the purchase does not constitute a
method of procurement adequate for the agency's needs. This section
does not apply to contracts for construction or for the procurement
of any product available in substantial quantities to the general
public.
(c) Competitive negotiation, for the purposes of this section
includes, but is not limited to, all of the following requirements:
(1) A request for proposals shall be prepared and submitted to an
adequate number of qualified sources, as determined by the agency in
its discretion, to permit reasonable competition consistent with the
nature and requirements of the procurement. In addition, a notice of
the request for proposals shall be published at least once in a
newspaper of general circulation, which shall be made at least 10
days before the date for receipt of the proposals. The agency shall
make reasonable efforts to generate the maximum feasible number of
proposals from qualified sources, and shall make a finding to that
effect before proceeding to negotiate if only a single response to
the request for proposal is received.
(2) The request for proposals shall identify all significant
evaluation factors, including price, and their relative importance.
(3) The agency shall provide reasonable procedures for technical
evaluation of the proposals received, identification of qualified
sources, and selection for contract award.
(4) Prior to making an award, the agency shall prepare a price
analysis and shall find that the final negotiated price is fair and
reasonable based upon comparable procurement in the marketplace.
(5) The award shall be made to the qualified proposer whose
proposal will be most advantageous to the agency with price and other
factors considered. If the award is not made to the proposer whose
proposal contains the lowest price, the agency shall make a finding
setting forth the basis for the award.
(d) The agency may reject any and all proposals and issue a new
request for proposals at its discretion.
(e) Upon making an award to a qualified proposer, the agency, upon
request, shall make available to all other proposers and to the
public, an analysis of the award that provides the basis for the
selection of that particular qualified proposal.
(f) A person who submits, or who plans to submit, a proposal, may
protest any acquisition conducted in accordance with this section
pursuant to protest procedures established by the board as follows:
(1) Protests based on the content of the request for proposals
shall be filed with the agency within 10 calendar days after the
request for proposals is first advertised in accordance with
subdivision (c). The agency shall issue a written decision on the
protest prior to opening of proposals. A protest may be renewed by
refiling the protest with the agency within 15 calendar days after
the staff recommendation for award has been made available to the
public as required by subdivision (e) of Section 20216.
(2) Any bidder may protest the recommended award on any ground not
based upon the content of the request for proposals by filing a
protest with the agency within 15 calendar days after the staff
recommendation for award has been made available to the public as
required by subdivision (e) of Section 20216.
(3) Any protest shall contain a full and complete written
statement specifying in detail the grounds of the protest and the
facts supporting the protest. Protesters shall have an opportunity to
appear and be heard before the agency prior to the opening of
proposals in the case of protests based on the content of the request
for proposals, or prior to final award in the case of protests based
on other grounds or the renewal of protests based on the content of
the request for proposals.
(g) Provisions in any contract concerning women and minority
business enterprises, which are in accordance with the request for
proposals, shall not be subject to negotiation with the successful
bidder.
(h) As used in this section, "agency" includes a transit district,
city, county, city and county, or transportation agency when engaged
in transit operations.