Article 6.8. Transit Design-build Contracts of California Public Contract Code >> Division 2. >> Part 3. >> Chapter 1. >> Article 6.8.

As used in this article, the following terms have the following meanings:
  (a) "Best value" means a value determined by objective criteria and may include, but is not limited to, price, features, functions, life-cycle costs, and other criteria deemed appropriate by the transit district.
  (b) "Design-build" means a procurement process in which both the design and construction of a project are procured from a single entity.
  (c) "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.
  (d) "RFP" means request for proposal.
  (e) "Transit operator" means any transit district, included transit district, municipal operator, included municipal operator, or transit development board, as defined in Section 99210 of the Public Utilities Code, or a consolidated agency as defined in Section 132353.1 of the Public Utilities Code, or any joint powers authority formed to provide transit service.
When it is in the best interest of the transit operator, the transit operator may enter into a design-build contract for both the design and construction of a project under this article. After evaluation of the traditional design, bid, and build process of transit construction and of the design-build process in a public meeting, the transit operator shall make written findings that use of the design-build process on the specific project under consideration will accomplish one of the following objectives: reduce project costs, expedite the project's completion, provide design features not achievable through the design-bid-build method, prior to entering into a design-build contract. In the design-build project proposal, the written findings shall be included as part of any application for state funds pursuant to this chapter.
Design-build projects shall progress in a three-step process, as follows:
  (a) The transit operator shall prepare a set of documents setting forth the scope of the project. The documents shall include, but are not limited to, the size, type, and desired design character of the buildings, transit facilities, and site, performance specifications covering the quality of materials, equipment, and workmanship, preliminary plans or building layouts, or any other information deemed necessary to describe adequately the transit operator's needs. The performance specifications and any plans shall be prepared by a design professional duly licensed or registered in California.
  (b) Any architectural or engineering firm or individual retained by the transit operator to assist in the development criteria or preparation of the request for proposal (RFP) is not eligible to participate in the competition for the design-build entity.
  (c) (1) For contracts for public works projects awarded prior to January 1, 2012, the transit operator shall establish and enforce a labor compliance program containing the requirements outlined in Section 1771.5 of the Labor Code or shall contract with a third party to operate this labor compliance program containing the requirements outlined in Section 1771.5 of the Labor Code. This requirement shall not apply to projects where the transit operator or the design-build entity has entered into a collective bargaining agreement that binds all of the contractors performing work on the project, or to any other project of the transit operator that is not design-build.
  (2) For contracts for public works projects awarded on or after January 1, 2012, the project shall be subject to the requirements of Section 1771.4 of the Labor Code.
  (d) (1) Each RFP shall identify the basic scope and needs of the project or contract, the expected cost range, and other information deemed necessary by the contracting agency to inform interested parties of the contracting opportunity.
  (2) Each RFP shall invite interested parties to submit competitive sealed proposals in the manner prescribed by the contracting agency.
  (3) Each RFP shall include a section identifying and describing:
  (A) All significant factors that the agency reasonably expects to consider in evaluating proposals, including cost or price and all nonprice-related factors.
  (B) The methodology and rating or weighting process that will be used by the agency in evaluating competitive proposals and specifically whether proposals will be rated according to numeric or qualitative values.
  (C) The relative importance or weight assigned to each of the factors identified in the RFP. If a nonweighted system is used, the agency shall specifically disclose whether all evaluation factors other than cost or price, when combined, are any of the following:
  (i) Significantly more important than cost or price.
  (ii) Approximately equal in importance to cost or price.
  (iii) Significantly less important than cost or price.
  (D) If the contracting agency wishes to reserve the right to hold discussions or negotiations with offerors, it shall specify the same in the RFP and shall publish separately or incorporate into the RFP applicable rules and procedures to be observed by the agency to ensure that any discussions or negotiations are conducted in a fair and impartial manner.
  (e) (1) The transit operator shall establish a procedure to prequalify design-build entities using a standard questionnaire developed by the Director of Industrial Relations. The standardized questionnaire shall not require prospective bidders to disclose any violations of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code committed prior to January 1, 1998, if the violation was based on a subcontractor's failure to comply with these provisions and the bidder had no knowledge of the subcontractor' s violations and the bidder complied with the conditions set forth in subdivision (b) of Section 1775 of the Labor Code. In preparing the questionnaire, the director shall consult with the construction industry, building trades, transit operators, and other affected parties. This questionnaire shall require information relevant to the architecture or engineering firm that will be the lead on the design-build project. The questionnaire shall include, but is not limited to, all of the following:
  (A) A listing of all the contractors that are part of the design-build entity.
  (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.
  (C) The licenses, registrations, and credentials required to design and construct the project, including 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, as well as a financial statement that assures the transit operator that the design-build entity has the capacity to complete the project.
  (E) Any prior serious or willful violation of the California Occupational Safety and Health Act of 1973, contained in 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, and information concerning a contractor member's workers' compensation experience history and worker safety program.
  (F) Information concerning any debarment, disqualification, or removal from a federal, state, or local government public works project. Any instance where an entity, its owners, officers, or managing employees submitted a bid on a public works project and were found by an awarding body not to be a responsible bidder.
  (G) Any instance where the entity, its owner, officers, or managing employees defaulted on a construction contract.
  (H) 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, including the payment of wages, benefits, apprenticeship requirements, or personal income tax withholding, or of Federal Insurance Contribution Act (FICA; 26 U.S.C. Sec. 3101 et seq.) withholding requirements settled against any member of the design-build entity.
  (I) Information concerning the bankruptcy or receivership of any member of the entity, and information concerning all legal claims, disputes, or lawsuits arising from any construction project of any member of the entity during the past three years, including information concerning any work completed by a surety.
  (J) If the design-build entity is a partnership, limited partnership, or other association, a listing of all of the partners, general partners, or association members who will participate as subcontractors in the design-build contract.
  (K) Information concerning all 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-year period immediately preceding submission of a bid pursuant to this section, 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.
  (L) In the case of a partnership or other 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 liable for full performance under the design-build contract.
  (2) The information required pursuant to 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 pursuant to 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.
  (f) The transit operator shall establish a procedure for final selection of the design-build entity. Selection shall be subject to the following conditions:
  (1) In no case shall the transit operator award a contract to a design-build entity pursuant to this article for a capital maintenance or capacity-enhancing rail project unless that project exceeds twenty-five million dollars ($25,000,000) in cost.
  (2) For nonrail transit projects that exceed two million five hundred thousand dollars ($2,500,000), the transit operator may award the project to the lowest responsible bidder or by using the best value method.
  (3) For the acquisition and installation of technology applications or surveillance equipment designed to enhance safety, disaster preparedness, and homeland security efforts, there shall be no cost threshold and the transit operator may award the contract to the lowest responsible bidder or by using the best value method.
  (g) Except as provided in this section, nothing in this act shall be construed to affect the application of any other law.
Criteria used in the evaluation of proposals may include, but need not be limited to, the proposed design approach, life-cycle costs, project features, and project functions.
  (a) Competitive proposals shall be evaluated by using only the criteria and source selection procedures specifically identified in the RFP. Once the evaluation is complete, all responsive bidders shall be ranked from most advantageous to least advantageous to the awarding agency.
  (b) Any architectural or engineering firm or individual retained by the governing body to assist in the development criteria or preparation of the solicitation shall not be eligible to participate in the competition with any design-build entity.
  (c) The award of the contract shall be made to the responsible bidder whose proposals are determined, in writing, to be the best value to the awarding body.
  (d) Proposals shall be evaluated and scored solely on the basis of the factors and source selection procedures identified in the RFPs. However, the following minimum factors shall collectively represent at least 50 percent of the total weight or consideration given to all criteria factors: price, technical expertise, life cycle costs over 15 years or more, skilled labor force availability, and acceptable safety record.
  (e) The contracting agency shall issue a written decision supporting its contract award and stating in detail the basis of the award. The decision and the contract file shall be sufficient to satisfy an external audit.
  (f) Notwithstanding any provision of the Public Contract Code, upon issuance of a contract award, the contracting agency shall publicly announce its award, identifying the contractor to whom the award is made, the winning contractor's price proposal, and its overall combined rating on the RFP evaluation factors. The notice of award shall also include the agency's ranking of all other offerors and their respective price proposals and a summary of the agency's rationale for the contract award.
  (g) For the purposes of this section, "skilled labor force availability" shall be determined by the existence of an agreement with a registered apprenticeship program, approved by the California Apprenticeship Council, which has graduated apprentices in each of the preceding five years. This graduation requirement shall not apply to programs providing apprenticeship training for any craft that has not been deemed by the Department of Labor and the Department of Industrial Relations to be an apprenticeable craft in the five years prior to enactment of this act.
  (h) For the purposes of this section, a bidder's "safety record" shall be deemed "acceptable" if his or her experience modification rate for the most recent three-year period is an average of 1.0 or less and his or her 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.
If the governing body of a transit operator elects to award a transit capital project through the design-build selection process pursuant to this article, all of the following apply:
  (a) The retention proceeds withheld by the transit operator from the design-build entity listed at the time of bid shall not exceed 5 percent.
  (b) The transit operator shall not withhold retention from payments to the design-build entity for actual costs incurred and billed for design services, construction management services, or where applicable, for completed operations and maintenance services.
  (c) In a contract between the design-build entity and a subcontractor, and in a contract between a subcontractor and any subcontractor thereunder, the percentage of the retention proceeds withheld may not exceed the percentage specified in the contract between the transit operator and the design-build entity. If the design-build entity provides written notice to any subcontractor who is not a member of the design-build entity, prior to or at the time that the bid is requested, that a bond may be required and the subcontractor subsequently is unable or refuses to furnish a bond to the design-build entity, then the design-build entity may withhold retention proceeds in excess of the percentage specified in the contract between the transit operator and the design-build entity from any payment made by the design-build entity to the subcontractor.
  (d) In accordance with the provisions of applicable state law, the design-build entity may be permitted to substitute securities in lieu of the withholding from progress payments specified in subdivision (b). Substitutions shall be made in accordance with Section 22300 of the Public Contract Code.
  (e) Upon request, the transit operator shall provide a list of parties who have requested a bid package.
(a) Any design-build entity that is selected to design and build a project pursuant to this article shall possess or obtain sufficient bonding and errors and omissions insurance coverage sufficient to cover all design and architectural services provided in the contract consistent with this article. Nothing in this article prohibits a general or engineering contractor from being designated the lead entity on a design-build entity for the purposes of purchasing necessary bonding to cover the activities of the design-build entity.
  (b) Any payment or performance bond written for the purposes of this article shall be written using a bond form developed by the Department of General Services pursuant to subdivision (i) of Section 14661 of the Government Code. The purpose of this subdivision is to promote uniformity of bond forms to be used on transit operator design-build projects throughout the state.
  (c) All subcontracts that were not listed by the design-build entity in accordance with Section 20209.6 shall be awarded by the design-build entity. The design-build entity shall do both of the following:
  (1) Provide public notice of the availability of work to be subcontracted in accordance with the publication requirements applicable to the competitive bidding process of the public entity.
  (2) Provide a fixed date and time on which the subcontracted work will be awarded.
  (d) Subcontractors bidding on contracts pursuant to this article shall be afforded the protections contained in Chapter 4 (commencing with Section 4100) of Part 1 of Division 2 of the Public Contract Code.
(a) The minimum performance criteria and design standards established pursuant to this article by a transit operator for quality, durability, longevity, life-cycle costs, and other criteria deemed appropriate by the transit operator shall be adhered to by the design-build entity. Any deviations from those standards may only be allowed by written consent of the transit operator. The transit operator may retain the services of a design professional through the course of the project in order to ensure compliance with this article.
  (b) The total price of the project shall be subject to the conditions established in subdivision (f) of Section 20209.7.
Each transit operator that elects to proceed under this article and use the design-build method on a public works project shall prepare and deliver to the Legislative Analyst's Office within 120 days of the design-build project being put into operation or by December 1, 2015, whichever occurs first, a report containing a description of each public works project financed with public funds, procured through the design-build process, and completed on or before November 1, 2015. However, if a project has been commenced, but not completed on or before November 1, 2015, the transit operator shall complete a report no later than 120 days after completion of the project. The report shall include, but not be limited to, all of the following information:
  (a) The type of facility.
  (b) The gross square footage of the facility.
  (c) The company or contractor who was awarded the project.
  (d) The estimated and actual length of time to complete the project.
  (e) The findings established pursuant to Section 20133.
  (f) Any Labor Code violations discovered during the course of construction or following completion of the project, as well as any fines or penalties assessed.
  (g) The estimated and actual project cost.
  (h) A description of any written protests concerning any aspect of the solicitation, bid, proposal, or award of the design-build project, including the resolution of the protest.
  (i) An assessment of the prequalification process and criteria.
  (j) An assessment of the impact of retaining 5 percent retention on the project.
  (k) A description of the labor force compliance program and an assessment of the project impact, where required.
  (l) A description of the method used to award the contract. If best value was the method, the factors used to evaluate the bid shall be described, including the weighting of each factor and an assessment of the effectiveness of the methodology.
  (m) An assessment of the project impact of "skilled labor force availability."
  (n) An assessment of the design-build dollar limits on transit projects. This shall include projects where the transit operator wanted to use design-build and was precluded by the dollar limitation. It shall also include projects where the best value method of awarding contracts was not used, due to dollar limitations.
  (o) An assessment of the most appropriate uses for the design-build approach.
  (p) Any transit operator that elects not to use the authority granted may also submit a report to the entities named in accordance with the schedule in this section. This report may include an analysis of why the authority granted was not used by the operator.
(a) Unless expressly set forth in this article, nothing in this article is intended to affect, expand, alter, or limit any rights or remedies otherwise available at law.
  (b) This article applies only to transit projects. "Transit projects" for the purposes of this article does not include state highway construction or local street and road projects.
(a) This article shall remain in effect only until January 1, 2017, and as of that date is repealed.
  (b) This article shall only apply to transit operators that begin a project solicitation before January 1, 2015. A transit operator that begins a project solicitation on or after January 1, 2015, is subject to Chapter 4 (commencing with Section 22160).