SECTIONS 6800-6813 - California Statutes

PUBLIC CONTRACT CODE

SECTION 6800-6813

6800. The Legislature hereby finds and declares all of the
following:
The design-build method of procurement authorized under this
chapter should be evaluated for the purposes of exploring whether the
potential exists for reduced project costs, expedited project
completion, or design features that are not achievable through the
traditional design-bid-build method. A demonstration program will
allow for a careful examination of the benefits and challenges of
design-build contracting on a limited number of projects. This
chapter shall not be deemed to provide a preference for the
design-build method over other procurement methodologies.

6801. For purposes of this chapter, the following definitions
apply:
(a) "Best value" means a value determined by objective criteria,
including, but not limited to, price, features, functions, life cycle
costs, and other criteria deemed appropriate by the transportation
entity.
(b) "Commission" means the California Transportation Commission.
(c) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
entity.
(d) "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.
(e) "Design-build team" means the design-build entity itself and
the individuals and other entities identified by the design-build
entity as members of its team.
(f) "Department" means the Department of Transportation as
established under Part 5 (commencing with Section 14000) of Division
3 of the Government Code.
(g) "Local transportation entity" means a transportation authority
designated pursuant to Division 19 (commencing with Section 180000)
of the Public Utilities Code, any consolidated agency created
pursuant to Chapter 3 (commencing with Section 132350) of Division
12.7 of the Public Utilities Code, the Santa Clara Valley
Transportation Authority established under Part 12 (commencing with
Section 100000) of Division 10 of the Public Utilities Code, and any
other local or regional transportation entity that is designated by
statute as a regional transportation agency.
(h) "Transportation entity" means the department or a local
transportation entity.

6802. (a) Subject to the limitations of this chapter, a local
transportation entity, if authorized by the commission, may utilize
the design-build method of procurement for up to five projects that
may be for local street or road, bridge, tunnel, or public transit
projects within the jurisdiction of the entity.
(b) Subject to the limitations of this chapter, the department, if
authorized by the commission, may utilize the design-build method of
procurement for up to 10 state highway, bridge, or tunnel projects.
(c) (1) In addition to the projects authorized pursuant to
subdivisions (a) and (b), and subject to the limitations of this
chapter, the Riverside County Transportation Commission, if
authorized by the commission, may utilize design-build procurement
for the State Route 91 Corridor Improvements Project on the state
highway system.
(2) Notwithstanding any other provision of this chapter, the
department shall be the agency responsible for the performance of
construction inspection services for the project authorized pursuant
to this subdivision. Construction inspection services for the project
authorized pursuant to this subdivision include, but are not limited
to, surveying, testing the materials, verification testing,
monitoring of environmental compliance, quality control inspection,
and quality assurance audits. The construction inspection duties and
responsibilities shall include a direct reporting relationship
between the inspectors and senior department engineers responsible
for all inspectors and construction inspection services. The senior
department engineer responsible for construction inspection services
shall be responsible for the acceptance or rejection of the work.
(3) Notwithstanding any other provision of law, for the project
authorized pursuant to this subdivision the department shall retain
the authority to stop the contractor's operation wholly or in part
and take appropriate action when public safety is jeopardized. The
department shall ensure that public safety and convenience is
maintained whenever work is performed under an encroachment permit
within the state highway right-of-way, including, but not limited to,
work performed that includes lane closures, signing, work performed
at night, detours, dust control, temporary pavement quality, crash
cushions, temporary railings, pavement transitions, falsework,
shoring, and delineation. The department shall regularly inspect the
job sites for safety compliance and any possible deficiencies. If any
deficiency is observed, a written notice shall be sent to the
resident engineer to correct the deficiency. Once the deficiency is
corrected, a written notice describing the resolution of the
deficiency shall be sent to the department and documented.
(4) The department may use department employees or consultants to
perform the services described in this subdivision, consistent with
Article XXII of the California Constitution. Department resources
necessary for the performance of those services, including personnel
requirements, shall be included in the department's capital outlay
support program for workload purposes in the annual Budget Act.
(5) Not later than the first day of July that occurs two years
after a design-build contract is awarded, and each July 1 thereafter
until the project is completed, the Riverside County Transportation
Commission shall submit a report on the progress of the project and
compliance with this section to the legislative policy committees
having jurisdiction over transportation matters.

6803. (a) Only 15 design-build projects shall be authorized under
this chapter. The projects selected shall vary in size, type, and
geographical location.
(b) The commission shall determine whether a transportation entity
may award a design-build contract based on lowest responsible bid or
best value. The commission shall balance the number of
transportation entities that may use the low bid and best value
selection methods in order to ensure that the number of design-build
contracts awarded will enable the commission to determine the costs
and benefits of using each method.
(c) In order to be eligible for consideration as one of the 15
design-build projects authorized under this chapter, the proposed
project shall be subject to the existing process under the state
transportation improvement program (Chapter 2 (commencing with
Section 14520) of Part 5.3 of Division 3 of Title 2 of the Government
Code), the Highway Safety, Traffic Reduction, Air Quality, and Port
Security Bond Act of 2006 (Chapter 12.49 (commencing with Section
8879.20) of Division 1 of Title 2 of the Government Code), the
traffic congestion relief program (Chapter 4.5 (commencing with
Section 14556) of Part 5.3 of Division 3 of Title 2 of the Government
Code), or the state highway operations and protection program
established pursuant to Section 14526.5 of the Government Code.
(d) The commission shall establish a peer review committee to
conduct an evaluation of the 15 projects selected to utilize the
design-build method of procurement.
(e) The commission shall develop guidelines for a standard
organizational conflict-of-interest policy, consistent with
applicable law, regarding the ability of a person or entity, that
performs services for the transportation entity relating to the
solicitation of a design-build project, to submit a proposal as a
design-build entity, or to join a design-build team. This
conflict-of-interest policy shall apply to each transportation entity
entering into design-build contracts authorized under this chapter.

6804. (a) 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
subdivision (b), a transportation entity authorized to use the
design-build method of procurement shall implement a labor compliance
program, as described in Section 1771.5 of the Labor Code, or it
shall contract with a third party to implement, on the transportation
entity's behalf, a labor compliance program subject to that statute.
This requirement does not apply to a project where the
transportation entity or design-build entity has entered into any
collective bargaining agreement or agreements that bind all of the
contractors performing work on the projects.
(b) 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 subdivision,
the transportation entity 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 1771.3 of the Labor
Code, and shall be used only for enforcement of prevailing wage
requirements on those projects.
(c) The Department of Industrial Relations may waive the fee set
forth in subdivision (b) for a transportation entity that has
previously been granted approval by the director to initiate and
operate a labor compliance program on its projects, and that requests
to continue to operate the 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. This fee shall not be
waived for a transportation entity that contracts with a third party
to initiate and enforce labor compliance programs on the
transportation entity's projects.

6805. The procurement process for the design-build projects shall
progress as follows:
(a) The transportation entity shall prepare a set of documents
setting forth the scope and estimated price of the project. The
documents may include, but need not be limited to, the size, type,
and desired design character of the project, performance
specifications covering the quality of materials, equipment,
workmanship, preliminary plans, and any other information deemed
necessary to describe adequately the transportation entity's needs.
The performance specifications and any plans shall be prepared by a
design professional who is duly licensed and registered in
California.
(b) Based on the documents prepared as described in subdivision
(a), the transportation entity shall prepare a request for proposals
that invites interested parties to submit competitive sealed
proposals in the manner prescribed by the transportation entity. The
request for proposals shall include, but need not be limited to, the
following elements:
(1) Identification of the basic scope and needs of the project or
contract, the estimated cost of the project, the methodology that
will be used by the transportation entity to evaluate proposals,
whether the contract will be awarded on the basis of the lowest
responsible bid or on best value, and any other information deemed
necessary by the transportation entity to inform interested parties
of the contracting opportunity.
(2) Significant factors that the transportation entity reasonably
expects to consider in evaluating proposals, including, but not
limited to, cost or price and all nonprice-related factors.
(3) The relative importance or the weight assigned to each of the
factors identified in the request for proposals.
(4) For transportation entities authorized to utilize best value
as a selection method, the transportation entity reserves the right
to request proposal revisions and hold discussions and negotiations
with responsive bidders and shall so specify in the request for
proposals and shall publish separately or incorporate into the
request for proposals applicable rules and procedures to be observed
by the transportation entity to ensure that any discussions or
negotiations are conducted in good faith.
(c) Based on the documents prepared under subdivision (a), the
transportation entity shall prepare and issue a request for
qualifications in order to prequalify the design-build entities whose
proposals shall be evaluated for final selection. The request for
qualifications shall include, but need not be limited to, the
following elements:
(1) Identification of the basic scope and needs of the project or
contract, the expected cost range, the methodology that will be used
by the transportation entity to evaluate proposals, the procedure for
final selection of the design-build entity, and any other
information deemed necessary by the transportation entity to inform
interested parties of the contracting opportunity.
(2) (A) Significant factors that the transportation entity
reasonably expects to consider in evaluating qualifications,
including technical design and construction expertise, skilled labor
force availability, and all other nonprice-related factors.
(B) For purposes of subparagraph (A), skilled labor force
availability shall be determined by the existence of an agreement
with a registered apprenticeship program, approved by the California
Apprenticeship Council, that has graduated at least one apprentice in
each of the preceding five years. This graduation requirement shall
not apply to programs providing apprenticeship 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.
(3) A standard form request for statements of qualifications
prepared by the transportation entity. In preparing the standard
form, the transportation entity may consult with the construction
industry, the building trades and surety industry, and other public
agencies interested in using the authorization provided by this
chapter. The standard form shall require information including, but
not limited to, all of the following:
(A) If the design-build entity is a partnership, limited
partnership, joint venture, or other association, a listing of all of
the partners, general partners, or association members known at the
time of statement of qualification submission who will participate in
the design-build contract.
(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, and a financial statement that
assures the transportation entity that the design-build entity has
the capacity to complete the project.
(C) The licenses, registration, and credentials required to design
and construct the project, including, but not limited to,
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.
(E) Information concerning workers' compensation experience
history and a worker safety program.
(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 design-build entity.
(ii) Any debarment, disqualification, or removal from a federal,
state, or local government public works project.
(iii) Any instance where the design-build entity, 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 design-build entity, or its owners,
officers, or managing employees defaulted on a construction contract.
(v) Any violations of the Contractors' State License Law, as
described in Chapter 9 (commencing with Section 7000) of Division 3
of the Business and Professions Code, including alleged violations of
federal or state law regarding the payment of wages, benefits,
apprenticeship requirements, or personal income tax withholding, or
Federal Insurance Contribution Act (FICA) withholding requirements
settled against any member of the design-build entity.
(vi) Any bankruptcy or receivership of any member of the
design-build entity, 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
design-build entity 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
five-year period.
(G) If the proposed design-build entity is a partnership, limited
partnership, joint-venture, or other association, a copy of the
organizational documents or agreement committing to form the
organization, and a statement that all general partners, joint
venture members, or other association members agree to be fully
liable for the performance under the design-build contract.
(H) An acceptable safety record. A bidder'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 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.
(4) The information required under this subdivision shall be
verified under oath by the design-build entity and its members in the
manner in which civil pleadings in civil actions are verified.
Information required under this subdivision that is not a public
record under the California Public Records Act, as described in
Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code, shall not be open to public inspection.
(d) For those projects utilizing low bid as the final selection
method, the competitive bidding process shall result in lump-sum bids
by the prequalified design-build entities. Awards shall be made to
the lowest responsible bidder.
(e) For those projects utilizing best value as a selection method,
the design-build competition shall progress as follows:
(1) Competitive proposals shall be evaluated by using only the
criteria and selection procedures specifically identified in the
request for proposals. However, the following minimum factors shall
be weighted as deemed appropriate by the contracting transportation
entity:
(A) Price.
(B) Technical design and construction expertise.
(C) Life-cycle costs over 15 years or more.
(2) Pursuant to subdivision (b), the transportation entity may
hold discussions or negotiations with responsive bidders using the
process articulated in the transportation entity's request for
proposals.
(3) When the evaluation is complete, the top three responsive
bidders shall be ranked sequentially based on a determination of
value provided.
(4) The award of the contract shall be made to the responsible
bidder whose proposal is determined by the transportation entity to
have offered the best value to the public.
(5) Notwithstanding any other provision of this code, upon
issuance of a contract award, the transportation entity 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 transportation entity's second- and third-ranked
design-build entities.
(6) The written decision supporting the transportation entity's
contract award, described in paragraph (5), and the contract file
shall provide sufficient information to satisfy an external audit.

6806. (a) The design-build entity shall provide payment and
performance bonds for the project in the form and in the amount
required by the transportation entity, and issued by a California
admitted surety. In no case shall the amount of the payment bond be
less than the amount of the performance bond.
(b) The design-build contract shall require errors and omissions
insurance coverage for the design elements of the project.
(c) The commission shall develop a standard form of payment and
performance bond. In developing the bond form, the commission shall
consult with entities authorized to use the design-build procurement
method under this chapter and with representatives of the surety
industry to achieve a bond form that is consistent with surety
industry standards and practices, while protecting the public
interest.

6807. (a) The transportation entity, in each design-build request
for proposals, may identify specific types of subcontractors that
must be included in the design-build entity statement of
qualifications and proposal. All construction subcontractors that are
identified in the proposal shall be afforded all the protections of
Chapter 4 (commencing with Section 4100) of Part 1 of Division 2.
(b) In awarding subcontracts not listed in the request for
proposals, the design-build entity shall do all of the following:
(1) Provide public notice of availability of work to be
subcontracted in accordance with the publication requirements
applicable to the competitive bidding process of the transportation
entity.
(2) Provide a fixed date and time on which the subcontracted work
will be awarded.
(3) Establish reasonable qualification criteria and standards.
(4) Provide that the subcontracted construction work shall be
awarded either on a best value basis or to the lowest responsible
bidder. For construction work awarded on a best value basis, the
design-build entity shall evaluate all bids utilizing the factors
described in paragraph (1) of subdivision (e) of Section 6805, and
shall award the contract to the bidder determined by the design-build
entity to have offered the best value.
(c) Subcontractors awarded subcontracts under this chapter shall
be afforded all the protections of Chapter 4 (commencing with Section
4100) of Part 1 of Division 2.

6808. (a) Notwithstanding any other provision of this chapter, for
a project authorized under subdivision (b) of Section 6802, the
department is the responsible agency for the performance of project
development services, including performance specifications,
preliminary engineering, prebid services, the preparation of project
reports and environmental documents, and construction inspection
services. The department is also the responsible agency for the
preparation of documents that may include, but need not be limited
to, the size, type, and desired design character of the project,
performance specifications covering quality of materials, equipment,
and workmanship, preliminary plans, and any other information deemed
necessary to described adequately the needs of the transportation
entity.
(b) The department may use department employees or consultants to
perform the services described in subdivision (a), consistent with
Article XXII of the California Constitution. Department resources,
including personnel requirements, necessary for the performance of
those services shall be included in the department's capital outlay
support program for workload purposes in the annual Budget Act.

6809. Nothing in this chapter affects, expands, alters, or limits
any rights or remedies otherwise available at law.

6811. (a) Not later than June 30 of each year after the
design-build contract is awarded, the awarding transportation entity
shall submit a progress report to the commission. The progress report
shall include, but shall not be limited to, all of the following
information:
(1) A description of the project.
(2) The design-build entity that was awarded the project.
(3) The estimated and actual costs of the project.
(4) The estimated and actual schedule for project completion.
(5) A description of any written protests concerning any aspect of
the solicitation, bid, proposal, or award of the design-build
project, including, but not limited to, the resolution of the
protests.
(6) An assessment of the prequalification process and criteria
utilized under this chapter.
(7) A description of the labor compliance program required under
Section 6804 and an assessment of the impact of this requirement on a
project.
(8) A description of the method used to evaluate the bid,
including the weighting of each factor and an assessment of the
impact of this requirement on a project.
(9) A description of any challenges or unexpected problems that
arose during the construction of the project and a description of the
solutions that were considered and ultimately implemented to address
those challenges and problems.
(10) Recommendations to improve the design-build process of
construction procurement authorized under this chapter.
(b) The commission shall submit an annual report to the
Legislature that includes the information provided pursuant to
subdivision (a).

6812. The provisions of this chapter are severable. If any
provision of this chapter or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.

6813. This chapter shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.