2007 California Education Code Chapter 3.5. Design-build Contracts

CA Codes (edc:81700-81708)

81700.  (a) It is the intent of the Legislature to enable community
college districts to utilize safe and cost-effective options for
building and modernizing community college facilities. The
Legislature has recognized the merits of the design-build procurement
process in the past by authorizing its use for projects undertaken
by the University of California, specified local government projects,
including school districts, and state office buildings.
   (b) The Legislature also finds and declares that community college
districts utilizing a design-build contract require a clear
understanding of the roles and responsibilities of each participant
in the design-build process. The benefits of a design-build contract
project delivery system include an accelerated completion of the
projects, cost containment, reduction of construction complexity, and
reduced exposure to risk for the community college district. The
Legislature also finds that the cost-effective benefits to the
community college districts are achieved by shifting the liability
and risk for cost containment and project completion to the
design-build entity.
   (c) It is the intent of the Legislature to provide an optional,
alternative procedure for bidding and building community college
construction projects.
   (d) In addition, it is the intent of the Legislature that the full
scope of design, construction, and equipment awarded to a
design-build entity under this chapter shall be authorized in a
single funding phase.  The funding phase may be authorized
concurrently with, or separately from, the phase that authorizes the
creation of the performance criteria and concept drawings.
   (e) It is the intent of the Legislature that design-build
procurement as authorized by this chapter shall not be construed to
extend, limit, or change in any manner the legal responsibility of
public agencies and contractors to comply with existing laws.




81701.  As used in this chapter, the following terms have the
following meanings:
   (a) "Best value" means a value determined by objective criteria
and may include, but need not be limited to, price, features,
functions, life-cycle costs, and other criteria deemed appropriate by
the community college 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 corporation, limited
partnership, partnership, or other association that is able to
provide appropriately licensed contracting, architectural, and
engineering services as needed pursuant to a design-build contract.



81702.  (a) Upon a determination by a community college district
governing board that it is in the best interest of the community
college district, the governing board may enter into a design-build
contract for both the design and construction of a community college
facility if that expenditure exceeds two million five hundred
thousand dollars (,500,000) if, after evaluation of the traditional
design, bid, and build process of community college facility
construction and of the design-build process in a public meeting, the
governing board makes written findings that use of the design-build
process on the specific project under consideration will accomplish
one of the following objectives: reduce comparable project costs,
expedite the project's completion, or provide features not achievable
through the traditional design-bid-build method. The governing board
shall also review the guidelines developed pursuant to Section 81706
and shall adopt a resolution approving the use of a design-build
contract pursuant to this chapter prior to entering into a
design-build contract.
   (b) No state funds appropriated for a design-build capital outlay
project may be expended until the Department of Finance and the State
Public Works Board have approved performance criteria, or
performance criteria and concept drawings, for the project to be
financed from the appropriation for capital outlay.



81703.  Design-build projects shall progress as follows:
   (a) (1) The community college district governing board shall
prepare a request for proposal setting forth the scope of the project
that may include, but is not limited to, the size, type and desired
design character of the buildings 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 community
college district's needs.  The performance specifications and any
plans shall be prepared by a design professional duly licensed or
registered in this state to perform the services required by the
Field Act, as defined in Section 17281.
   (2) Each request for proposal shall do all of the following:
   (A) Identify the basic scope and needs of the project or contract,
the expected cost range, and other information deemed necessary by
the community college district to inform interested parties of the
contracting opportunity.
   (B) Invite interested parties to submit competitive sealed
proposals in the manner prescribed by the community college district.

   (C) Include a section identifying and describing the following:
   (i) All significant factors and subfactors that the community
college district reasonably expects to consider in evaluating
proposals, including cost or price and all nonprice related factors
and subfactors.
   (ii) The methodology and rating or weighting scheme that will be
used by the community college district governing board in evaluating
competitive proposals and specifically whether proposals will be
rated according to numeric or qualitative values.
   (iii) The relative importance or weight assigned to each of the
factors identified in the request for proposal.
   (iv) As an alternative to clause (iii), the governing board of a
community college district 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.
   (v) If the community college district governing board wishes to
reserve the right to hold discussions or negotiations with responsive
bidders, it shall so specify in the request for proposal and shall
publish separately or incorporate into the request for proposal
applicable rules and procedures to be observed by the community
college district to ensure that any discussions or negotiations are
conducted in a fair and impartial manner.
   (3) Notwithstanding Section 4-315 of Title 24 of the California
Code of Regulations, an architect or structural engineer who is party
to a design-build entity may perform the services set forth in
Section 81138.
   (b) The community college district shall establish a procedure to
prequalify design-build entities using a standard questionnaire
developed by the Director of the Department of Industrial Relations
pursuant to subdivision (b) of Section 17250.25.
   (c) The community college district shall establish a procedure for
final selection of the design-build entity.  Selection shall be
based on either of the following criteria:
   (1) A competitive bidding process resulting in lump-sum bids by
the prequalified design-build entities.  Award shall be made on the
basis of the lowest responsible bid.
   (2) Notwithstanding any other provision of this code or of Section
20650 of the Public Contract Code, a community college district may
use a design-build competition based upon performance and other
criteria set forth by the governing board in the solicitation of
proposals.  Criteria used in this evaluation of proposals may
include, but need not be limited to, the proposed design approach,
life cycle costs, project features, and project functions.  However,
competitive proposals shall be evaluated by using the criteria and
source selection procedures specifically identified in the request
for proposal.  Once the evaluation is complete, all responsive
bidders shall be ranked from the most advantageous to least
advantageous to the community college district.  A community college
district that limits the number of responsible bidders participating
in the design-build competition, at any time after a request for a
proposal has been issued, shall use the source selection procedures
and minimum factors set forth in subparagraph (C).
   (A) Any architectural firm, engineering firm, construction
manager, contractor, subcontractor, consultant, or individual
retained by the governing body of the community college district
directly or indirectly prior to the award of the project to assist in
the planning of the project, including, but not necessarily limited
to, the development criteria or preparation of the request for
proposal, shall not be eligible to participate in the competition
with the design-build entity or to perform work on the project as a
subcontractor.
   (B) The award of the contract shall be made to the responsible
bidder whose proposal is determined, in writing by the community
college district, to be the best value to the community college
district.
   (C) Proposals shall be evaluated and scored solely on the basis of
the factors and source selection procedures identified in the
request for proposal.  However, the following minimum factors shall
each represent at least 10 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.
   (D) The community college district governing board shall issue a
written decision supporting its contract award and stating in detail
the basis of the award.  The decision and the contract file must be
sufficient to satisfy an external audit.
   (E) Notwithstanding any provision of the Public Contract Code,
upon issuance of a contract award, the community college district
governing board shall publicly announce its awards identifying the
contractor to whom the award is made, the winning contractor's price
proposal and its overall combined rating on the request for proposal
evaluation factors.  The notice of award shall also include the
agency's ranking in relation to all other responsive bidders and
their respective price proposals and a summary of the community
college district's rationale for the contract award.
   (F) For the purposes of this chapter, "skilled labor force
availability" means that an agreement exists with a registered
apprenticeship program, approved by the California Apprenticeship
Council, which has graduated apprentices in each of the immediately
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 apprenticable craft in the five years
prior to enactment of the act adding this section.
   (G) For the purposes of this chapter, 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 or 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.
   (H) For the purposes of this chapter, when a community college
district determines a design-build entity's "experience," the
district shall give credit only to design-build experience and to
California school design and construction experience.




81704.  (a) Any design-build entity that is selected to design and
build a project pursuant to this chapter shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omission insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This chapter does not prohibit 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 chapter shall use 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 community college district
design-build projects throughout the state.
   (c) (1) All subcontracts that were not listed by the design-build
entity in accordance with Section 81703 shall be awarded by the
design-build entity in accordance with the design-build process set
forth by the community college district in the design-build package.

   (2) The design-build entity shall do all of the following:
   (A) Provide public notice of the availability of work to be
subcontracted.
   (B) Provide a fixed date and time on which the subcontracted work
will be awarded.
   (3) Subcontractors bidding on contracts pursuant to this
subdivision shall be afforded the protections contained in Chapter 4
(commencing with Section 4100) of Part 1 of Division 2 of the Public
Contract Code.
   (4) (A) If the community college district elects to award a
project pursuant to this section, retention proceeds withheld by the
community college district from the design-build entity shall not
exceed 5 percent if a performance and payment bond, issued by an
admitted surety insurer, is required in the solicitation of bids.
   (B) 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 community college district 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 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 community college district and the
design-build entity from any payment made by the design-build entity
to the subcontractor.
   (5) 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. Substitutions shall
be made in accordance with Section 22300 of the Public Contract Code.

   (d) The community college district 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 a labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code. This requirement shall
not apply to projects where the community college district or the
design-build entity has entered into a collective bargaining
agreement that binds all of the contractors performing work on the
project.



81705.  (a) The minimum performance criteria and design standards
established pursuant to this chapter by a community college district
for quality, durability, longevity, and life cycle costs, and other
criteria deemed appropriate by the community college district shall
be adhered to by the design-build entity.  Any deviations from those
standards may only be allowed by written consent of the community
college district.  The governing board may, and is strongly
encouraged to, retain the services of an architect or structural
engineer throughout the course of the project in order to ensure
compliance with this chapter.  Any architect or structural engineer
retained pursuant to this subdivision shall be duly licensed and
registered in California.
   (b) The community college district governing board shall be the
employer of the inspector.  The project inspector shall be fully
independent from any member of the design-build entity and may not
have any affiliation with any member of the design-build entity or
any of the project subcontractors.  The total price of the project
shall be determined either upon receipt of the lump-sum bids as set
forth in paragraph (1) of subdivision (c) of Section 81703, or by
completion of the process pursuant to paragraph (2) of subdivision
(c) of Section 81703.
   (c) The project inspector shall act under the direction of either
the Director of General Services or a competent, qualified agent of
the community college district.
   (d) Each contract with a design-build entity shall provide that no
construction or alteration of any community college facility
pursuant to this section shall commence prior to the receipt of the
written approval of the plans, as to the safety of design and
construction, from the Department of General Services.  Compliance
with this provision shall be deemed to be in compliance with Section
81133.
   (e) The design-build entity shall be liable for building the
facility to specifications set forth in the design-build contract in
the absence of contractual language to the contrary.



81706.  The Board of Governors of the California Community Colleges,
in consultation with the Secretary for Education, the Department of
General Services, the Energy Resources, Conservation and Development
Commission, Seismic Safety Commission, community college district
representatives, and industry representatives, develop guidelines for
design-build projects.  The guidelines shall be developed  no later
than June 30, 2003.



81707.  Each community college district governing board that adopts
the design-build process for a project pursuant to this chapter shall
submit to the Legislative Analyst a report on the project at the
completion of the project.  Completion shall have the same meaning as
defined in subdivision (c) of Section 7107 of the Public Contract
Code.  This report shall be submitted within 60 days after completion
of the project.  The Legislative Analyst shall submit an interim
report to the Legislature by January 1, 2005, and a final report to
the Legislature by January 1, 2007.  The reports shall include, but
not be limited to, all of the following information as to each
project:
   (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 estimated and actual project cost.
   (f) A description of the relative merits of a project procured
pursuant to this chapter and similar projects procured pursuant to
other provisions of this code.
   (g) A description of any written protest concerning any aspect of
the solicitation, bid, proposal, or award of the design-build
project, including the resolution of the protest.
   (h) Other pertinent information that may be instructive in
evaluating whether the design-build method of procurement should be
continued, expanded, or prohibited.
   (i) The findings established pursuant to Section 81702 and a
postcompletion evaluation as to whether the findings were achieved.
   (j) Any Labor Code violations discovered during the course of
construction or following completion of the project, as well as any
fines or penalties assessed.



81708.  A community college district shall not commence any
additional design-build projects if 60 days has elapsed after
completion of a design-build project without having filed the report
to the Legislative Analyst's Office required pursuant to Section
81707.