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
(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
(b) "Design-build" means a procurement process in which both the
design and construction of a project are procured from a single
(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
(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
(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
(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
(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
(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
(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
(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
(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
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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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).