21568.4. The procurement process for progressive design-build projects shall proceed as follows:
(a) The district shall prepare and issue a request for qualifications in order to select a design-build entity to execute the project. The request for qualifications shall include, but need not be limited to, the following elements:
(1) Documentation of the size, type, and desired design character of the project and any other information deemed necessary to describe adequately the district’s needs, including the expected cost range, the methodology that will be used by the district to evaluate the design-build entity’s qualifications, the procedure for final selection of the design-build entity, and any other information deemed necessary by the district to inform interested parties of the contracting opportunity.
(2) Significant factors that the district reasonably expects to consider in evaluating qualifications, including technical design and construction expertise, and all other non-price-related factors. The district may require that a preliminary cost estimate, including the basis for the estimate, be included in the design-build entities’ responses and may consider those costs in evaluation of the statements of qualifications.
(3) The relative importance or the weight assigned to each of the factors identified in the request for qualifications.
(4) A request for statements of qualifications with a template for the statement that is prepared by the district. The district shall require all of the following information in the statement and indicate, in the template, that the following information is required:
(A) If the design-build entity is a privately held corporation, limited liability company, partnership, or joint venture, a listing of all of the entity’s shareholders, partners, or members known at the time of the statement of qualification submission who will perform work on the project.
(B) Evidence that the members of the design-build team have completed, or have demonstrated the experience, competency, capability, and capacity to complete projects of similar size, scope, or complexity, and that proposed personnel have sufficient experience and training to competently manage and complete the design and construction of the project, and a financial statement that ensures that the design-build entity has the capacity to complete the project.
(C) The licenses, registration, and credentials required to design and construct the project, including, but not limited to, 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.
(E) Information concerning workers’ compensation experience history and a worker safety program.
(F) If the proposed design-build entity is a corporation, limited liability company, partnership, joint venture, or other legal entity, a copy of the organizational documents or agreement committing to form the organization.
(G) An acceptable safety record. A proposer’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 proposer is a party to an alternative dispute resolution system as provided for in Section 3201.5 of the Labor Code.
(5) The information required under this subdivision shall be certified under penalty of perjury by the design-build entity and its general partners or joint venture members.
(b) At the close of the solicitation period, the district shall review the submissions. The district may evaluate submissions based solely upon the information provided in each design-build entity’s statement of qualifications. The district may also interview some or all of the design-build entities to further evaluate their qualifications for the project.
(c) Notwithstanding any other provision of this code, upon issuance of a contract award, the district shall publicly announce its award, identifying the design-build entity to which the award is made, along with a statement regarding the basis of the award. The statement regarding the district’s contract award and the contract file shall provide sufficient information to satisfy an external audit.
(d) After selecting a design-build entity based on qualifications, the district may enter into a contract and direct the design-build entity to begin design and preconstruction activities sufficient to establish a guaranteed maximum price for the project.
(e) (1) Upon agreement of the guaranteed maximum price for the project, the district, at its sole and absolute discretion, may amend its contract with the design-build entity to contract for the remaining design, preconstruction, and construction activities sufficient to complete and close out the project, and will amend the contract to be consistent with the guaranteed maximum price. In the event that there are unforeseen site conditions or changes initiated at the request of the district, the guaranteed maximum price shall be modified if necessary.
(2) If the costs for completing all remaining design, preconstruction, and construction activities sufficient to complete and close out the project exceed the guaranteed maximum price, the costs exceeding the guaranteed maximum price shall be the responsibility of the design-build entity. If the costs for these activities are less than the guaranteed maximum price, the design-build entity shall not be entitled to the difference between the costs and the guaranteed maximum price, unless there is a prior written agreement concerning sharing of these proceeds. For purposes of this section, cost shall include the design-build entity’s direct costs, general conditions, overhead, and fee.
(f) If the district and the design-build entity do not reach agreement on a guaranteed maximum price, or the district otherwise elects not to amend the design-build entity’s contract to complete the remaining work, the district may solicit proposals to complete the project from other firms that submitted statements of qualifications or requests for proposals. The district may also, upon written determination that it is in the best interest of the district to do so, formally solicit proposals from other design-build entities.
(g) (1) The district, in each design-build request for qualifications, may identify specific types of subcontractors that shall be included in the design-build entity’s statement of qualifications. All construction subcontractors that are identified in the statement of qualifications shall be afforded the protections of Chapter 4 (commencing with Section 4100) of Part 1.
(2) Following award of the design-build contract, except for those construction subcontractors listed in the statement of qualifications, the design-build entity shall proceed as listed in this subdivision in awarding construction subcontracts with a value exceeding one-half of 1 percent of the contract price allocable to construction work.
(A) Provide public notice of availability of work to be subcontracted in accordance with the publication requirements applicable to the competitive bidding process of the district, including a fixed date and time on which qualifications statements, bids, or proposals will be due.
(B) Establish reasonable qualification criteria and standards.
(C) Award the subcontract either on a best value basis or to the lowest responsible bidder. The process may include prequalification or short-listing.
(3) Subcontractors awarded construction subcontracts under this subdivision shall be afforded all the protections of Chapter 4 (commencing with Section 4100) of Part 1.
(4) A construction subcontractor licensed pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code that provides design services used on a project authorized by this section shall not be subject to any liability arising from their design if the construction subcontract for that design is not performed by that subcontractor.
(5) If the district and the design-build entity do not reach agreement on a guaranteed maximum price, or the district otherwise elects not to amend the design-build entity’s contract to complete the remaining work, and the district elects to contract with a new design-build entity to complete the remaining work, the design professionals responsible for performing design services on behalf of the design-build entity shall have sole liability for their design errors and omissions.
(h) (1) The district shall submit to the relevant committees of the Legislature, on or before January 1, 2027, a report containing a description of each public works project procured by the district through the progressive design-build process described in this article that is completed after January 1, 2023, and before December 1, 2026.
(2) The report shall include, but is not limited to, all of the following information:
(A) A description of the project and the design-build entity that was awarded the contract for the project.
(B) The initial estimated, actual final project costs, and guaranteed maximum price.
(C) An assessment of the selection process and criteria required by this article.
(D) An assessment of the effects of the progressive design-build process described in this article on cost and schedule for the project.
(E) The number of specialty subcontractors listed by construction trade type, on each project, that provided construction services, but did not meet the target price for their scope of work.
(F) Whether or not any portion of a design prepared by the specialty subcontractor that did not perform the construction work for that design was used by the district.
(G) In instances where the district determined that the guaranteed maximum price of any subcontract exceeded the anticipated target price for that portion of the project, which subcontracts were impacted and on what basis the district determined what the anticipated target price was.
(H) The number of specialty subcontractors listed by construction trade type, on each project, that meet the definition of a small business under subparagraphs (A) and (B) of paragraph (1) of subdivision (d) of Section 14837 of the Government Code.
(I) The number of specialty subcontractors listed by construction trade type, on each project, that meet the definition of a microbusiness under paragraph (2) of subdivision (d) of Section 14837 of the Government Code.
(3) The report shall be submitted in compliance with Section 9795 of the Government Code and may be combined with the report required pursuant to Section 21568.5.
(Added by Stats. 2022, Ch. 275, Sec. 2. (AB 1845) Effective January 1, 2023.)
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