SECTIONS 20919-20919.15 - California Statutes

PUBLIC CONTRACT CODE

SECTION 20919-20919.15

20919. The Legislature finds and declares all of the following:
(a) It is the intent of the Legislature, in enacting this article,
to demonstrate an alternative and optional procedure for bidding of
public works projects that is applicable only to the Los Angeles
Unified School District.
(b) The Los Angeles Unified School District should be able to
utilize cost-effective options for the delivery of public works
projects, in accordance with the national trend, which include
authorizations in California, to allow public entities to utilize job
order contracts as a project delivery method.
(c) The benefits of a job order contract project delivery system
include accelerated completion of the projects, cost savings, and
reduction of construction contracting complexity for the unified
school district.
(d) The job order contracting approach should be used for the
purposes of reducing project cost and expediting project completion.
(e) The Legislature is uncertain of the benefits and advantages of
job order contracting for California school districts and therefore
looks forward to the reports required by Section 20919.12 in order to
fully and competently assess any further exemptions to the school
contracting process.
(f) The availability of job order contracting as a project
delivery method will not preclude the use of traditional methods of
project delivery if a traditional method results in higher cost
savings.
(g) It is the intent of the Legislature that job order contracts
be competitively bid and awarded to the responsible qualified bidder
providing the lowest responsive bid. It is further the intent of the
Legislature that nothing in the job order contract process or its
implementation be used to disenfranchise any bidder or class of
bidders that otherwise would meet the requirements of this article.

20919.1. As used in this chapter:
(a) "Adjustment factor" means the job order contractor's
competitively bid adjustment to the unified school district's prices
as published in the catalog of construction tasks.
(b) "Catalog of construction tasks" means a book containing
specific construction tasks and the unit prices to install or
demolish that construction. The listed tasks shall be based on
generally accepted industry standards and information, where
available, for various items of work to be performed by the job order
contractor. The prices shall include the cost of materials, labor,
and equipment for performing the items of work. The prices shall not
include overhead and profit. All unit prices shall be developed using
local prevailing wages.
(c) "Indefinite quantity" means one or more of the construction
tasks listed in the catalog of construction tasks.
(d) "Job order" means a firm, fixed priced, lump-sum order issued
by the unified school district to a job order contractor for a
definite project scope of work as compiled from the catalog of
construction tasks to be performed pursuant to a job order contract.
No single job order may exceed one million dollars ($1,000,000) in
value.
(e) "Job order contract" means a competitively bid contract
between the unified school district and a licensed, bonded, and
general liability insured contractor in which the contractor agrees
to a fixed period, fixed unit price, and indefinite quantity contract
that provides for the use of job orders for public works or
maintenance projects.
(f) "Job order contract technical specifications" means a book,
published by the unified school district, detailing the technical
specifications with regard to quality of materials and workmanship to
be used by the job order contractor in accomplishing the tasks
listed in the catalog of construction tasks.
(g) "Job order contractor" means a licensed, bonded, and general
liability insured contractor awarded a job order contract.
(h) "Offer to perform work" means the job order contractor's
proposal for a specific job order.
(i) "Plans and specifications" means the catalog of construction
tasks and the job order contract technical specifications. The scope
of work to be performed with a job order contract is potentially, but
not necessarily, all the tasks published in the catalog of
construction tasks.
(j) "Project" means the specific requirements and work to be
accomplished by the job order contractor in connection with an
individual job order.
(k) "Project scope of work" means the document and related
drawings, specifications, and writings referenced therein which
together set forth the specific requirements and work to be
accomplished by the job order contractor in connection with an
individual job order.
(l) "Proposal" means the job order contractor prepared document
quoting those construction tasks listed in the catalog of
construction tasks that the job order contractor requires to complete
the project scope of work, together with the appropriate quantities
of each task. The pricing of each task shall be accomplished by
multiplying the construction task unit price by the proposed quantity
and the contractor's competitively bid adjustment factor. The
proposal shall also contain a schedule for the completion of a
specific project scope of work as requested by the unified school
district. The proposal may also contain approved drawings, work
schedule, permits, or other documentation as the unified school
district may require for a specific job order.
(m) "Public works project" has the same meaning as "public
project," as defined in Section 22002.
(n) "Subcontractor" means any person, firm, or corporation, other
than the employees of the job order contractor, who is bonded and
general liability insured and who contracts to furnish labor, or
labor and materials, at the worksite or in connection with a job
order, whether directly or indirectly on behalf of the job order
contractor.
(o) "Unified school district" means the Los Angeles Unified School
District.

20919.2. Nothing in this article or in this code shall prohibit the
unified school district from utilizing job order contracting, as an
alternative to any contracting procedures that the unified school
district is otherwise authorized or required by law to use.

20919.3. (a) (1) For contracts awarded prior to the effective date
of either the regulations adopted by the Department of Industrial
Relations pursuant to subdivision (b) of Section 1771.55 of the Labor
Code or the fees established by the department pursuant to paragraph
(2), the unified school district shall establish and enforce for job
order contracts 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 that provision. This
requirement does not apply to any project where the unified school
district or the job order contractor has entered into any collective
bargaining agreement or agreements that bind all of the contractors
performing work on the projects.
(2) For contracts awarded on or after the effective date of both
the regulations adopted by the Department of Industrial Relations
pursuant to subdivision (b) of Section 1771.55 of the Labor Code and
the fees established by the department pursuant to this paragraph,
the unified school district shall pay a fee to the department, in an
amount that the department shall establish, and as it may from time
to time amend, sufficient to support the department's costs in
ensuring compliance with and enforcing prevailing wage requirements
on the project, and labor compliance enforcement as set forth in
subdivision (b) of Section 1771.55 of the Labor Code. All fees
collected pursuant to this subdivision shall be deposited in the
State Public Works Enforcement Fund created by Section 1771.3 of the
Labor Code, and shall be used only for enforcement of prevailing wage
requirements on those projects.
(3) The Department of Industrial Relations may waive the fee set
forth in paragraph (2) if the unified school district has previously
been granted approval by the director to initiate and operate a labor
compliance program on its projects and requests to continue to
operate that labor compliance program on its projects in lieu of
labor compliance by the department pursuant to subdivision (b) of
Section 1771.55 of the Labor Code. The fee shall not be waived for
the unified school district if it contracts with a third party to
initiate and enforce labor compliance programs on its projects.
(b) The unified school district shall prepare an execution plan
for all modernization projects that may be eligible for job order
contracting pursuant to this article. The unified school district
shall select from that plan a sufficient number of projects to be
initiated as job order contracts during each calendar year and shall
determine for each selected project that job order contracting will
reduce the total cost of that project. Job order contracting shall
not be used if the unified school district finds that it will
increase the total cost of the project.
(c) No later than June 30, 2005, the unified school district shall
submit an interim report on all job order contract projects
completed by December 31, 2004, to the Office of Public School
Construction in the Department of General Services and the Senate and
the Assembly Committees on Business and Professions and the Senate
and Assembly Committees on Education. The interim report shall be
prepared by an independent third party and the unified school
district shall pay for the cost of the report. The report shall
include the information specified in subdivisions (a) through (h) of
Section 20919.12.

20919.4. Bidding for job order contracts shall progress as follows:
(a) (1) The unified school district shall prepare a set of
documents for each job order contract. The documents shall include a
catalog of construction tasks and preestablished unit prices, job
order contract technical specifications, and any other information
deemed necessary to describe adequately the unified school district's
needs.
(2) Any architect, engineer, or consultant retained by the unified
school district to assist in the development of the job order
contract documents shall not be eligible to participate in the
preparation of a bid with any job order contractor.
(b) Based on the documents prepared under subdivision (a), the
unified school district shall prepare a request for bid that invites
prequalified job order contractors to submit competitive sealed bids
in the manner prescribed by the unified school district.
(1) The prequalified job order contractors shall, as determined by
the unified school district, bid one or more adjustment factors to
the unit prices listed in the catalog of construction tasks based on
the job order contract technical specifications. Awards shall be made
to the lowest responsible prequalified bidder.
(2) The unified school district may award multiple job order
contracts. Each job order contract shall be awarded to the lowest
responsive and responsible prequalified bidder.
(3) The request for bids may encourage the participation of local
construction firms and the use of local subcontractors.
(c) (1) The unified school district shall establish a procedure to
prequalify job order contractors using a standard questionnaire
prepared by the Department of Industrial Relations under Section
20101. This questionnaire shall require information including, but
not limited to, all of the following:
(A) If the job order contractor is a partnership, limited
partnership, or other association, a listing of all of the partners
or association members known at the time of bid submission who will
participate in the job order contract.
(B) Evidence that the members of the job order contractor have the
capacity to complete projects of similar size, scope, or complexity,
and that proposed key personnel have sufficient experience and
training to competently manage the construction of the project, as
well as a financial statement that assures the unified school
district that the job order contractor has the capacity to complete
the project.
(C) The licenses, registration, and credentials required to
perform construction, including, but not limited to, information on
the revocation or suspension of any license, credential, or
registration.
(D) Evidence that establishes that the job order contractor has
the capacity to obtain all required payment and performance bonding
and liability insurance.
(E) Information concerning workers' compensation experience
history, worker safety programs, and apprenticeship programs.
(i) An acceptable safety record. A contractor's safety record
shall be deemed acceptable if its experience modification rate for
the most recent three-year period is an average of 1.00 or less, and
its average total recordable injury/illness rate and average lost
work rate for the most recent three-year period do not exceed the
applicable statistical standards for its business category or if the
contractor is a party to an alternative dispute resolution system as
provided for in Section 3201.5 of the Labor Code.
(ii) Skilled labor force availability as determined by the
existence of an agreement with a registered apprenticeship program,
approved by the California Apprenticeship Council, that has graduated
apprentices in each of the preceding five years. This graduation
training for any craft that was first deemed by the Department of
Labor and the Department of Industrial Relations to be an
apprenticeable craft within the five years prior to the effective
date of this article.
(F) A full disclosure regarding all of the following that are
applicable:
(i) Any serious or willful violation of 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 job order contractor.
(ii) Any debarment, disqualification, or removal from a federal,
state, or local government public works project.
(iii) Any instance where the job order contractor, or 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.
(iv) Any instance where the job order contractor, or its owners,
officers, or managing employees defaulted on a construction contract.
(v) 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 regarding 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 job order contractor.
(vi) Any bankruptcy or receivership of any member of the job order
contractor, including, but not limited to, information concerning
any work completed by a surety.
(vii) Any settled adverse claims, disputes, or lawsuits between
the owner of a public works project and any member of the job order
contractor during the five years preceding submission of a bid under
this article, 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.
(G) In the case of a partnership or any 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 job order
contract.
(2) The information required under 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 under 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.

20919.5. (a) The maximum total dollar amount that may be awarded
under a single job order contract shall not exceed five million
dollars ($5,000,000) in the first term of the job order contract and,
if extended or renewed, ten million dollars ($10,000,000) over the
maximum two terms of the job order contract adjusted annually to
reflect the percentage change in the California Consumer Price Index.
(b) Job order contracts may be executed for an initial contract
term of no more than 12 months, with the option of extending or
renewing the job order contract for two 12-month periods. The term of
the job order contract shall be for the contract term or whenever
the maximum value of the contract is achieved, whichever is less. All
extensions or renewals shall be priced as provided in the request
for bids. The extension or renewal shall be mutually agreed to by the
unified school district and the job order contractor.
(c) The unified school district may issue job orders to the job
order contractor that has been awarded the job order contract. The
job order shall be based on a project scope of work prepared by the
unified school district as well as a proposal from the job order
contractor who is awarded the job order contract. No single job order
may exceed one million dollars ($1,000,000).
(d) It is unlawful to split or separate into smaller job orders
any project for the purpose of evading the cost limitation provisions
of this chapter.
(e) All work performed under the job order contract shall be
covered by a project stabilization agreement.

20919.6. (a) All work bid under the job order contract shall comply
with Chapter 4 (commencing with Section 4100) of Part 1 of Division
2 and is subject to all of the penalties and provisions set forth in
that chapter.
(b) For purposes of Article 60.3, if the primary job order
contractor chooses to use subcontractors, the primary job order
contractor is required to verify that the subcontractors possess the
appropriate licenses and credentials required to perform
construction.
(c) Notwithstanding subdivision (a), the primary job order
contractor may use subcontractors that are not listed at the time of
bid of the job order contract if the work to be performed under that
job order contract is less than ten thousand dollars ($10,000).
(d) If the primary job order contractor chooses to use a
subcontractor that is not listed at the time of bid to perform work
on a job order contract that is less than ten thousand dollars
($10,000), both of the following apply:
(1) The unified school district shall provide public notice of the
availability of work to be subcontracted by trade. The public notice
shall include the scope of work; the project location; the name,
address, and the telephone number of the primary job order
contractor; and the closing date, time, and location for sealed bids
to be submitted.
(2) The primary job order contractor shall take sealed bids from
the subcontractors solicited for the proposal. These bids shall be
publicly opened at a prescribed time and place by the primary job
order contractor. After the bids are opened, they shall be forwarded
to the unified school district which shall maintain them as public
records.
(e) If the unified school district determines that there has been
bid shopping by the primary job order contractor, the unified school
district shall terminate the job order contract. If the unified
school district determines that a job order contractor has violated
Chapter 4 (commencing with Section 4100) of Part 1 of Division 2, the
unified school district may declare the contractor ineligible to bid
on job order contracts for a period of time to be determined by the
unified school district.

20919.7. (a) A job order contract shall set forth in the general
conditions of the job order contract the party or parties responsible
for seeing that the provisions of Article 2 (commencing with Section
1770) of Chapter 1 of Part 7 of Division 2 of the Labor Code are
complied with.
(b) For purposes of job order contracting, prevailing wages when
required to be paid shall apply to all work ordered under the job
order contract regardless of thresholds set forth in Section 1771.5
of the Labor Code.
(c) The job order contractor shall pay the prevailing wage in
effect at the time the job order is issued by the unified school
district and all increases as published by the Department of
Industrial Relations for the term of the job order contract,
including all overtime, holiday, and shift provisions published by
the Department of Industrial Relations.
(d) The unified school district shall designate one individual
within its labor compliance office to act as a monitor to inspect job
sites for labor compliance violations at the request of the
designated labor representative.

20919.8. A willful violation of Section 20919.6 occurs when the job
order contractor or subcontractor knew or reasonably should have
known of his or her obligations under the public works law and
deliberately fails or refuses to comply with its provisions. The
unified school district using job order contracting shall publish and
distribute to the Labor Commission a list of all job order
contractors or subcontractors who violate this provision and the
unified school district shall not award a job order contract or any
future job orders under an existing job order contract to any
contractor or subcontractor who violates this provision during the
effective period of debarment of the contractor or subcontractor.

20919.9. For purposes of employment of apprentices on job order
contracts, when the individual job order involves more than thirty
thousand dollars ($30,000) or 20 working days, all general
contractors or subcontractors shall comply with the following:
(a) Prior to commencing work on an individual job order, every
contractor shall submit job order award information to an applicable
apprenticeship program that can supply apprentices to the site of the
job order. The information submitted shall include an estimate of
the journeyman hours to be performed under the contract, the number
of apprenticeships proposed to be employed, and the approximate dates
the apprentices would be employed. A copy of this information shall
also be submitted to the awarding agency if requested by the awarding
agency.
(b) The ratio of work performed by apprentices to journeymen
employed in a particular craft or trade on the job order may be no
higher than the ratio stipulated in the apprenticeship standard under
which the apprenticeship program operates where the job order
contractor agrees to be bound by those standards but, except as
otherwise provided in Section 1777.5 of the Labor Code, in no case
shall the ratio be less than one hour of apprenticeship work for
every five hours of journeyman work.
(c) Every apprentice employed under the job order contract shall
be paid the prevailing rate of per diem wages for apprentices in the
trade to which he or she is registered and shall be employed only at
the work of the craft or trade to which he or she is registered.
(d) Every apprentice employed under the job order contract shall
be hired from the local joint labor management apprenticeship
committee that has jurisdiction in the geographic area of the
project.

20919.10. A job order contractor or subcontractor that knowingly
violates the provisions involving employment of apprentices shall
forfeit as a civil penalty an amount not exceeding one hundred
dollars ($100) for each full calendar day of noncompliance. The
amount of this penalty shall be based on consideration of whether the
violation was a good faith mistake due to inadvertence. A contractor
or subcontractor that knowingly commits a second or subsequent
violation of the provisions involving employment of apprentices
within a three-year period where the noncompliance results in
apprenticeship training not being provided as required, shall forfeit
as a civil penalty a sum of not more than three hundred dollars
($300) for each full calendar day of noncompliance and shall not be
awarded any further job orders under the job order contract and shall
be precluded for a period of one year from bidding on any future job
order contracts.

20919.11. In order to prevent fraud, waste, and abuse, the unified
school district adopting job order contracting shall do all of the
following:
(a) Prepare for each individual job order developed under a job
order contract an independent unified school district estimate. The
estimate will be prepared prior to the receipt of the contractor's
offer to perform work and will be compared to the contractor's
proposed price to determine the reasonableness of that price before
issuance of any job order. The basis for any adjustments to the
unified school district estimate is to be documented. In the event
that the contractor's proposal for a given job order is found to be
unreasonable, not cost effective, or undesirable, the unified school
district is under no obligation to issue the job order to the job
order contractor, and may instead utilize any other available
procurement procedures.
(b) The unified school district may not issue a job order until
the job order has been reviewed and approved by at least two levels
of management.
(c) Once a job order has been issued, all documents pertaining to
preparation and approval of the job order, including the independent
unified school district estimate, shall be available for public
review.

20919.12. If the unified school district adopts the job order
contracting process, the unified school district shall submit to the
Office of Public School Construction in the Department of General
Services, the Senate and Assembly Committees on Business and
Professions, the Senate and Assembly Committees on Education, and the
Joint Legislative Budget Committee before December 1, 2011, a report
containing a description of each job order contract procured, and
the work under each contract completed on or before November 1, 2011.
The report shall be prepared by an independent third party and the
unified school district shall pay for the cost of the report. The
report shall include, but not be limited to, all of the following
information:
(a) A listing of all projects completed under each job order
contract.
(b) The job order contractor that was awarded each contract.
(c) The estimated and actual project costs.
(d) The estimated procurement time savings.
(e) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the job order contract,
including, but not limited to, the resolution of the protests.
(f) An assessment of the prequalification process and criteria.
(g) A description of the labor force compliance program required
under Section 20919.4, and an assessment of the impact on a project
where compliance with that program is required.
(h) Recommendations regarding the most appropriate uses for the
job order contract process.

20919.13. If, after 30 days from receipt of the invoice, a contract
has not been paid, the contractor shall contact the designated
unified school district employee to resolve payment. If the contact
with the unified school district's designee does not provide full
payment within three business days, the contractor may request a
special convening of the payment resolution committee.
(a) The payment resolution committee shall be composed of a
representative of the contractor, a representative from labor, a
representative designated by the director of facilities within the
unified school district, and a representative designated by the
director of facilities support services within the unified school
district.
(b) After convening, the committee shall make its recommendation
of payment within three business days.

20919.14. It is the intent of the Legislature that a moratorium be
placed on the enactment of any additional legislation authorizing
school districts to use job order contracting until the Legislature
has received the reports required by Section 20919.12.

20919.15. This article shall remain in effect only until December
1, 2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before December 1, 2012, deletes or extends
that date.