California Assembly Bill AB635 Amended / Bill

 BILL NUMBER: AB 635AMENDED BILL TEXT AMENDED IN SENATE AUGUST 5, 2010 AMENDED IN ASSEMBLY APRIL 2, 2009 INTRODUCED BY Assembly Member  V. Manuel Perez   De La Torre   (   Coauthors:   Assembly Members   Arambula,   Tom Berryhill,   Block,   Caballero,   Bonnie Lowenthal,   and V. Manuel Perez   )  FEBRUARY 25, 2009  An act to add Chapter 2.5 (commencing with Section 13065) to Part 1 of Division 12 of the Health and Safety Code, relating to firefighting.   An act to add Article 1 (commencing with Section 3000) to Chapter 3 of Part 1 of Division 2 of the Public Contract Code, relating to public contracts, and declaring the urgency thereof, to take effect immediately.  LEGISLATIVE COUNSEL'S DIGEST AB 635, as amended,  V. Manuel Perez   De La Torre  .  Fire protection: air purifying devices.   Public contracts: roof projects.   Existing law prohibits a state agency, political subdivision, municipal corporation, or district from drafting specifications for bids, in connection with the construction, alteration, or repair of public works, calling for a designated material, product, thing, or service by specific brand or trade name unless the specification is followed by the words "or equal" so that bidders may furnish any equal material, product, thing, or service.   This bill would require a school district, community college district, state university, or state agency to require decisions, as to whether proposed substitute items in connection with a project to replace or repair a roof are equal pursuant to the above provisions, to be made by an independent architect, engineer, or roofing consultant, as provided. The bill would set forth requirements for the bidding specifications for these roofing projects. The bill would require an architect, engineer, roofing consultant, and other specified persons or entities to sign a certification related to financial relationships. The bill would require a school district, community college district, state university, or state agency to publish on its Internet Web site certain information pertaining to roofing projects. This bill would also authorize the State Allocation Board, the Office of Public School Construction, and the Department of General Services to provide educational programs, information, or online material to school and state government administrators in relation to these matters. By imposing duties on school districts, the bill would create a state-mandated local program.   The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.   This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.   This bill would declare that it is to take effect immediately as an urgency statute.   Existing law establishes the State Board of Fire Services in the Office of the State Fire Marshal. Existing law requires the board to recommend the establishment of minimum standards with respect to specified elements of fire protection, including fire equipment.   This bill would provide that a state or local agency shall not prohibit a firefighter from using an air purifying device during a wild land fire.  Vote:  majority   2/3  . Appropriation: no. Fiscal committee:  no   yes  . State-mandated local program:  no   yes  . THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Article 1 (commencing with Section 3000) is a   dded to Chapter 3 of Part 1 of Division 2 of the   Public Contract Code   , to read:   Article 1. Roofing Projects 3000. For purposes of this article, the following terms have the following meanings: (a) "Architect" means an architect who has a current license issued by the state. (b) "District or governmental body" means a school district, community college district, state university, or state agency. (c) "Engineer" means an engineer who has a current license issued by the state. (d) "Public facility" means a public school, community college, or state university, or any facility owned or operated by the state. (e) "Roofing consultant" means a consultant who is registered by RCI (formerly Roof Consultants Institute). (f) "Roof project" means a project for the replacement or repair of a roof of a public facility. (g) "Substitute" or "substitution" means a material, product, thing, or service proposed by a bidder to be an adequate substitute material, product, thing, or service that is equal to an item designated in specifications, pursuant to subdivision (b) of Section 3400 and subdivision (a) of Section 10129. 3002. (a) For purposes of subdivision (b) of Section 3400 and subdivision (a) of Section 10129, for any roof project, a material, product, thing, or service shall be considered equal if it meets all of the following requirements: (1) The item is at least equal in quality, durability, design, and appearance but not necessarily of an identical color. (2) The item will perform the intended function at least equally well. (3) The item conforms substantially, even with deviations, to the detailed requirements contained in the specifications. (b) A substitute may be unequal if the resulting roof system would be substantially different than other equal or better systems in terms of performance and durability, but not merely different by virtue of the inclusion of proprietary products or a proprietary warranty. 3004. (a) Specifications for any roof project shall be designed to promote competition. These specifications shall (1) name a minimum of three separate manufacturers that share no financial, partnership, or subsidiary relationships, or interests, or shared product lines, or (2) require performance standards that at least three manufacturers have indicated, in writing, in advance of the bidding period, the ability to comply with. (b) Specifications requiring proprietary products or a proprietary warranty may not be included in specifications for a roof project if these items would cost more than 10 percent more than for similar projects utilizing open competitive bidding without a requirement for proprietary products or a proprietary warranty. 3006. (a) For purposes of this section, "necessary" means essential for determining performance and durability characteristics. (b) If a substitution is offered in a bid for a roof project, the district or governmental body shall require decisions on whether the proposed substitution is "equal" pursuant to subdivision (b) of Section 3400 or subdivision (a) of Section 10129 to be made by an independent architect, engineer, or roofing consultant based on industry standards for performance characteristics and any necessary generic testing standards for the industry. 3008. A district or governmental body shall ensure and verify in writing that an architect, engineer, or roofing consultant develops the plans and specifications for a roof project to ensure that the project is designed to conform to state codes and structural integrity and conformity with Section 3004 is maintained. 3010. (a) (1) The architect, engineer, or roofing consultant who develops the specifications for a roof project shall disclose any financial relationships to the district or governmental body by completing and signing the certification set forth in subdivision (b), prior to the opening of any bids or the award of any project. The awarding authority shall review, approve, and acknowledge the disclosure. (2) The materials manufacturer, contractor, or vendor shall disclose any financial relationship to the district or governmental body by completing the same disclosure. (3) The architect, engineer, or roofing consultant shall not disclose a financial relationship in which the architect, engineer, or roofing consultant is a stockholder of a corporation the stock of which is listed for sale to the general public on a national securities exchange and registered with the United States Securities and Exchange Commission, if he or she holds less than 10 percent of the outstanding stock entitled to vote at the annual meeting of the corporation. (4) An architect, contractor, engineer, materials manufacturer, roofing consultant, or vendor who knowingly provides false information and fails to disclose a financial relationship pursuant to this section shall be liable to the district or governmental body for any costs to the district or governmental body that are reasonably attributable to excess or unnecessary costs, when compared to competing bids, incurred by the district or governmental body as a result of the undisclosed financial relationship. (b) I, ______________ Name, Employer , certify that I have not offered, given, or agreed to give, received, accepted, or agreed to accept, any gift, contribution, or any financial incentive whatsoever to or from any person in connection with the roof project contract. As used in this certification, "person" means any natural person, business, partnership, corporation, union, committee, club, or other organization, entity, or group of individuals. Furthermore, I, ______________ Name, Employer , certify that I do not have, and throughout the duration of the contract, I will not have, any financial relationship in connection with the performance of this contract with any materials manufacturer, distributor, or vendor that is not disclosed below. I, ____________________ Name, Employer , have the following financial relationships with a materials manufacturer, distributor, or vendor, or other person in connection with the following roof project contract: ______________________________________________________Name and Address of Building, Contract date and number I certify that to the best of my knowledge, the contents of this disclosure are true, or are believed to be true. _________ Signature ____ Date __________ Print Name Reviewed for financial conflicts and approved prior to the opening of bids or the award: Name__________________ Title and Employer Date ______ (c) Any person who knowingly provides false information in the disclosure set forth in subdivision (b) shall be subject to a civil penalty in an amount up to $1000 dollars, in addition to any other available remedies. An action for a civil penalty under this provision may be brought by any public prosecutor in the name of the people of the State of California. 3012. (a) To report bid rigging involving local government agencies and employees, including, but not limited to, county, city, and school district employees and officials, an interested person may contact the Antitrust Law Section of the Office of the Attorney General, 300 S. Spring St., Ste. 1702, Los Angeles, CA 90013, (800) 952-5225, or fill out the online complaint form on the Internet Web site of the Office of the Attorney General (Consumer Complaint Against a Business/Company) at ag.ca.gov/contact/complaint_form.php?cmplt=CL. (b) To file a complaint or request an investigation regarding improper bidding involving state funding, an interested person may contact the Bureau of State Audits Whistleblower Hotline for any state agency or institution, at 800-952-5665, or by mail at 555 Capitol Mall, Suite 300, Sacramento, CA 95814. 3014. A district or governmental body shall publish on its Internet Web site the specifications for a roof project from the day those specifications are issued until six months after the bid is accepted and awarded. The information presented online shall include the district or governmental body's written responses to bids, the contract amounts, the date of the contract, the type of project, bidding phase, the bidders, their bid amounts, and the winning bidder' s accepted bid at award. The district or governmental body shall also publish on its Internet Web site any subsequent change orders so the total project cost may be ascertained in an easily accessible manner. When the district or governmental body removes this information from its Internet Web site, it shall retain the information for a period of three years. 3016. The State Allocation Board, Office of Public School Construction, and the Department of General Services may provide educational programs, information, or online material to school and state government administrators on California bidding statutes to ensure that the administrators are adequately informed regarding the legal requirements to maintain a fair and transparent bidding process.   SEC. 2.   If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.   SEC. 3.   This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:   In order to control expenditures for the repair or replacement of roofs on public schools, colleges, and universities, and facilities owned or operated by the state, it is necessary that this act take effect immediately.   SECTION 1.   Chapter 2.5 (commencing with Section 13065) is added to Part 1 of Division 12 of the Health and Safety Code, to read: CHAPTER 2.5. FIREFIGHTING EQUIPMENT 13065. A state or local agency, including a city, county, city and county, or district, shall not prohibit a firefighter from using an air purifying device during a wild land fire.