California Assembly Bill AB1171 Amended / Bill

 BILL NUMBER: AB 1171AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 14, 2015 INTRODUCED BY Assembly Member Linder FEBRUARY 27, 2015 An act to add Chapter 6.7 (commencing with Section 6970) to Part 1 of Division 2 of the Public Contract Code, relating to public contracts. LEGISLATIVE COUNSEL'S DIGEST AB 1171, as amended, Linder. Construction Manager/General Contractor method: regional transportation agencies: projects on expressways. Existing law generally sets forth the requirements for the solicitation and evaluation of bids and the awarding of contracts by local agencies for public works contracts. Existing law authorizes the Department of Transportation, the Santa Clara County Valley Transportation Authority, and the San Diego Association of Governments to use the Construction Manager/General Contractor project delivery method for transit projects within their respective jurisdictions, subject to certain conditions and requirements. This bill would authorize regional transportation agencies, as defined, to use the Construction Manager/General Contractor project delivery method, as specified, to design and construct certain projects on expressways that are not on the state highway system if the projects are developed in accordance with an expenditure plan approved by voters as of January 1, 2014.  This bill would require, for any project interfacing with a state highway system, the regional transportation agency and the Department of Transportation to enter into a cooperative agreement, as specified.  The bill would require specified information provided to a regional transportation agency to be verified under oath. By expanding the scope of  an   the  existing  crime,   crime of perjury,  the bill would impose 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 no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Chapter 6.7 (commencing with Section 6970) is added to Part 1 of Division 2 of the Public Contract Code, to read: CHAPTER 6.7. CONSTRUCTION MANAGER/GENERAL CONTRACTOR METHOD: REGIONAL PROJECTS ON EXPRESSWAYS 6970. (a) This chapter provides for an alternative procurement procedure for certain transportation projects performed by a regional transportation agency. (b) The Construction Manager/General Contractor method allows the regional transportation agency to engage a construction manager during the design process to provide input on the design. During the design phase, the construction manager provides advice including, but not limited to, scheduling, pricing, and phasing to assist the agency to design a more constructible project. (c) The Legislature finds and declares that utilizing a Construction Manager/General Contractor method requires a clear understanding of the roles and responsibilities of each participant in the process. The Legislature also finds and declares that cost-effective benefits are achieved by shifting the liability and risk for cost containment and project schedule to the construction manager and by permitting the coherent phasing of projects into discrete contract increments. 6971. For purposes of this chapter, the following definitions apply: (a) "Construction manager" means a partnership, corporation, or other legal entity that is able to provide appropriately licensed contracting and engineering services as needed pursuant to a Construction Manager/General Contractor method contract. (b) "Construction Manager/General Contractor method" means a project delivery method in which a construction manager is procured to provide preconstruction services during the design phase of the project and construction services during the construction phase of the project. The contract for construction services may be entered into at the same time as the contract for preconstruction services, or at a later time. The execution of the design and the construction of the project may be in sequential phases or concurrent phases.  (c) "Interfacing with the state highway system" has the same definition as that term is defined in Section 6820.   (c)   (d)  "Preconstruction services" means advice during the design phase, including, but not limited to, scheduling, pricing, and phasing to assist the regional transportation agency to design a more constructible project.  (d)   (e)  "Project" means the construction of  a highway, bridge, or tunnel.   an expressway that is not on the state highway system, including work performed within the state highway right  -of-way   or airspace or upon property and airspace acquired for construction of a state highway.   (e)   (f)  "Regional transportation agency" means an entity as designated pursuant to paragraph (4) of subdivision (i) of Section 6820. 6972. (a) A regional transportation agency may utilize the Construction Manager/General Contractor method of procurement to design and construct projects  on expressways that are not on the state highway system  if the projects are developed in accordance with an expenditure plan approved by voters as of January 1, 2014. (b) The entity responsible for the maintenance of the local streets and roads within the jurisdiction of the expressway shall be responsible for the maintenance of the expressway.  (c) For any project interfacing with the state highway system, both of the following shall apply:   (1) The authorization in subdivision (a) shall not include the authority to perform construction inspection services, which shall be performed by the Department of Transportation consistent with Section 91.2 of the Streets and Highways Code.   (2) The regional transportation authority and the Department of Transportation shall enter into a cooperative agreement reflecting the roles and responsibilities assigned by law. The cooperative agreement shall also include an issue resolution process with a primary objective to ensure the project stays on schedule and issues between parties are resolved in a timely manner.   6973. Construction Manager/General Contractor method projects authorized pursuant to Section 6972 shall be governed by the same process, procedures, and requirements as set forth in Section 6703, subdivision (a) of Section 6704, and Sections 6705 to 6708, inclusive, except that any reference to "department" shall mean the regional transportation agency.   6973. (a) Construction Manager/General Contractor method projects shall progress as set forth in subdivision (a) of Section 6703, except that any references to "department" shall mean the regional transportation agency. (b) For each request for qualifications (RFQ), the regional transportation agency shall generate a final list of qualified persons or firms that participated in the RFQ prior to entering into negotiations on the contract or contracts to which the RFQ applies. (c) (1) For each contract included in the RFQ, the regional transportation agency shall enter into separate negotiations for the contract with the highest qualified person or firm on the final list for that contract. However, if the RFQ is for multiple contracts and specifies that all of the multiple contracts will be awarded to a single construction manager, there may be a single negotiation for all of the multiple contracts. The negotiations shall include consideration of compensation and other contract terms that the regional transportation agency determines to be fair and reasonable to the department. In making this decision, the regional transportation agency shall take into account the estimated value, the scope, the complexity, and the nature of the professional services or construction services to be rendered. If the regional transportation agency is not able to negotiate a satisfactory contract with the highest qualified person or firm on the final list, regarding compensation and on other contract terms the regional transportation agency determines to be fair and reasonable, the regional transportation agency shall formally terminate negotiations with that person or firm. The regional transportation agency may undertake negotiations with the next most qualified person or firm on the final list in sequence until an agreement is reached or a determination is made to reject all persons or firms on the final list. (2) If a contract for construction services is entered into pursuant to this chapter and includes preconstruction services by the construction manager, the regional transportation agency shall enter into a written contract with the construction manager for preconstruction services under which contract the regional transportation agency shall pay the construction manager a fee for preconstruction services in an amount agreed upon by the regional transportation agency and the construction manager. The preconstruction services contract may include fees for services to be performed during the contract period provided, however, the regional transportation agency shall not request or obtain a fixed price or a guaranteed maximum price for the construction contract from the construction manager or enter into a construction contract with the construction manager until after the regional transportation agency has entered into a services contract. A preconstruction services contract shall provide for the subsequent negotiation for construction of all or any discreet phase or phases of the project. (3) A contract for construction services shall be awarded after the plans have been sufficiently developed and either a fixed price or a guaranteed maximum price has been successfully negotiated. In the event that a fixed price or a guaranteed maximum price is not negotiated, the regional transportation agency shall not award the contract for construction services. (4) The regional transportation agency is not required to award the construction services contract. (5) Construction shall not commence on any phase, package, or element until the regional transportation agency and construction manager agree in writing on either a fixed price that the regional transportation agency will pay for the construction to be commenced or a guaranteed maximum price for the construction to be commenced and construction schedule for the project. The construction manager shall perform not less than 30 percent of the work covered by the fixed price or guaranteed maximum price agreement reached. Work that is not performed directly by the construction manager shall be bid to subcontractors pursuant to Section 6705, except that any references to "department" shall mean the regional transportation agency.   6974. Contracts awarded pursuant to this chapter shall be valid until the project is completed.  SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.