20919-20919.15
PUBLIC CONTRACT CODE
SECTION 20919-20919.15
20919. The Legislature finds and declares all of the following: (a) It is the intent of the Legislature, in enacting this article, to demonstrate an alternative and optional procedure for bidding of public works projects that is applicable only to the Los Angeles Unified School District. (b) The Los Angeles Unified School District should be able to utilize cost-effective options for the delivery of public works projects, in accordance with the national trend, which include authorizations in California, to allow public entities to utilize job order contracts as a project delivery method. (c) The benefits of a job order contract project delivery system include accelerated completion of the projects, cost savings, and reduction of construction contracting complexity for the unified school district. (d) The job order contracting approach should be used for the purposes of reducing project cost and expediting project completion. (e) The Legislature is uncertain of the benefits and advantages of job order contracting for California school districts and therefore looks forward to the reports required by Section 20919.12 in order to fully and competently assess any further exemptions to the school contracting process. (f) The availability of job order contracting as a project delivery method will not preclude the use of traditional methods of project delivery if a traditional method results in higher cost savings. (g) It is the intent of the Legislature that job order contracts be competitively bid and awarded to the responsible qualified bidder providing the lowest responsive bid. It is further the intent of the Legislature that nothing in the job order contract process or its implementation be used to disenfranchise any bidder or class of bidders that otherwise would meet the requirements of this article. 20919.1. As used in this chapter: (a) "Adjustment factor" means the job order contractor's competitively bid adjustment to the unified school district's prices as published in the catalog of construction tasks. (b) "Catalog of construction tasks" means a book containing specific construction tasks and the unit prices to install or demolish that construction. The listed tasks shall be based on generally accepted industry standards and information, where available, for various items of work to be performed by the job order contractor. The prices shall include the cost of materials, labor, and equipment for performing the items of work. The prices shall not include overhead and profit. All unit prices shall be developed using local prevailing wages. (c) "Indefinite quantity" means one or more of the construction tasks listed in the catalog of construction tasks. (d) "Job order" means a firm, fixed priced, lump-sum order issued by the unified school district to a job order contractor for a definite project scope of work as compiled from the catalog of construction tasks to be performed pursuant to a job order contract. No single job order may exceed one million dollars ($1,000,000) in value. (e) "Job order contract" means a competitively bid contract between the unified school district and a licensed, bonded, and general liability insured contractor in which the contractor agrees to a fixed period, fixed unit price, and indefinite quantity contract that provides for the use of job orders for public works or maintenance projects. (f) "Job order contract technical specifications" means a book, published by the unified school district, detailing the technical specifications with regard to quality of materials and workmanship to be used by the job order contractor in accomplishing the tasks listed in the catalog of construction tasks. (g) "Job order contractor" means a licensed, bonded, and general liability insured contractor awarded a job order contract. (h) "Offer to perform work" means the job order contractor's proposal for a specific job order. (i) "Plans and specifications" means the catalog of construction tasks and the job order contract technical specifications. The scope of work to be performed with a job order contract is potentially, but not necessarily, all the tasks published in the catalog of construction tasks. (j) "Project" means the specific requirements and work to be accomplished by the job order contractor in connection with an individual job order. (k) "Project scope of work" means the document and related drawings, specifications, and writings referenced therein which together set forth the specific requirements and work to be accomplished by the job order contractor in connection with an individual job order. (l) "Proposal" means the job order contractor prepared document quoting those construction tasks listed in the catalog of construction tasks that the job order contractor requires to complete the project scope of work, together with the appropriate quantities of each task. The pricing of each task shall be accomplished by multiplying the construction task unit price by the proposed quantity and the contractor's competitively bid adjustment factor. The proposal shall also contain a schedule for the completion of a specific project scope of work as requested by the unified school district. The proposal may also contain approved drawings, work schedule, permits, or other documentation as the unified school district may require for a specific job order. (m) "Public works project" has the same meaning as "public project," as defined in Section 22002. (n) "Subcontractor" means any person, firm, or corporation, other than the employees of the job order contractor, who is bonded and general liability insured and who contracts to furnish labor, or labor and materials, at the worksite or in connection with a job order, whether directly or indirectly on behalf of the job order contractor. (o) "Unified school district" means the Los Angeles Unified School District. 20919.2. Nothing in this article or in this code shall prohibit the unified school district from utilizing job order contracting, as an alternative to any contracting procedures that the unified school district is otherwise authorized or required by law to use. 20919.3. (a) (1) For contracts awarded prior to the effective date of either the regulations adopted by the Department of Industrial Relations pursuant to subdivision (b) of Section 1771.55 of the Labor Code or the fees established by the department pursuant to paragraph (2), the unified school district shall establish and enforce for job order contracts a labor compliance program containing the requirements outlined in Section 1771.5 of the Labor Code, or it shall contract with a third party to operate a labor compliance program containing the requirements outlined in that provision. This requirement does not apply to any project where the unified school district or the job order contractor has entered into any collective bargaining agreement or agreements that bind all of the contractors performing work on the projects. (2) For contracts awarded on or after the effective date of both the regulations adopted by the Department of Industrial Relations pursuant to subdivision (b) of Section 1771.55 of the Labor Code and the fees established by the department pursuant to this paragraph, the unified school district shall pay a fee to the department, in an amount that the department shall establish, and as it may from time to time amend, sufficient to support the department's costs in ensuring compliance with and enforcing prevailing wage requirements on the project, and labor compliance enforcement as set forth in subdivision (b) of Section 1771.55 of the Labor Code. All fees collected pursuant to this subdivision shall be deposited in the State Public Works Enforcement Fund created by Section 1771.3 of the Labor Code, and shall be used only for enforcement of prevailing wage requirements on those projects. (3) The Department of Industrial Relations may waive the fee set forth in paragraph (2) if the unified school district has previously been granted approval by the director to initiate and operate a labor compliance program on its projects and requests to continue to operate that labor compliance program on its projects in lieu of labor compliance by the department pursuant to subdivision (b) of Section 1771.55 of the Labor Code. The fee shall not be waived for the unified school district if it contracts with a third party to initiate and enforce labor compliance programs on its projects. (b) The unified school district shall prepare an execution plan for all modernization projects that may be eligible for job order contracting pursuant to this article. The unified school district shall select from that plan a sufficient number of projects to be initiated as job order contracts during each calendar year and shall determine for each selected project that job order contracting will reduce the total cost of that project. Job order contracting shall not be used if the unified school district finds that it will increase the total cost of the project. (c) No later than June 30, 2005, the unified school district shall submit an interim report on all job order contract projects completed by December 31, 2004, to the Office of Public School Construction in the Department of General Services and the Senate and the Assembly Committees on Business and Professions and the Senate and Assembly Committees on Education. The interim report shall be prepared by an independent third party and the unified school district shall pay for the cost of the report. The report shall include the information specified in subdivisions (a) through (h) of Section 20919.12. 20919.4. Bidding for job order contracts shall progress as follows: (a) (1) The unified school district shall prepare a set of documents for each job order contract. The documents shall include a catalog of construction tasks and preestablished unit prices, job order contract technical specifications, and any other information deemed necessary to describe adequately the unified school district's needs. (2) Any architect, engineer, or consultant retained by the unified school district to assist in the development of the job order contract documents shall not be eligible to participate in the preparation of a bid with any job order contractor. (b) Based on the documents prepared under subdivision (a), the unified school district shall prepare a request for bid that invites prequalified job order contractors to submit competitive sealed bids in the manner prescribed by the unified school district. (1) The prequalified job order contractors shall, as determined by the unified school district, bid one or more adjustment factors to the unit prices listed in the catalog of construction tasks based on the job order contract technical specifications. Awards shall be made to the lowest responsible prequalified bidder. (2) The unified school district may award multiple job order contracts. Each job order contract shall be awarded to the lowest responsive and responsible prequalified bidder. (3) The request for bids may encourage the participation of local construction firms and the use of local subcontractors. (c) (1) The unified school district shall establish a procedure to prequalify job order contractors using a standard questionnaire prepared by the Department of Industrial Relations under Section 20101. This questionnaire shall require information including, but not limited to, all of the following: (A) If the job order contractor is a partnership, limited partnership, or other association, a listing of all of the partners or association members known at the time of bid submission who will participate in the job order contract. (B) Evidence that the members of the job order contractor have the capacity to complete projects of similar size, scope, or complexity, and that proposed key personnel have sufficient experience and training to competently manage the construction of the project, as well as a financial statement that assures the unified school district that the job order contractor has the capacity to complete the project. (C) The licenses, registration, and credentials required to perform construction, including, but not limited to, information on the revocation or suspension of any license, credential, or registration. (D) Evidence that establishes that the job order contractor has the capacity to obtain all required payment and performance bonding and liability insurance. (E) Information concerning workers' compensation experience history, worker safety programs, and apprenticeship programs. (i) An acceptable safety record. A contractor'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/illness rate and average lost work rate for the most recent three-year period do not exceed the applicable statistical standards for its business category or if the contractor is a party to an alternative dispute resolution system as provided for in Section 3201.5 of the Labor Code. (ii) Skilled labor force availability as determined by the existence of an agreement with a registered apprenticeship program, approved by the California Apprenticeship Council, that has graduated apprentices in each of the preceding five years. This graduation training for any craft that was first deemed by the Department of Labor and the Department of Industrial Relations to be an apprenticeable craft within the five years prior to the effective date of this article. (F) A full disclosure regarding all of the following that are applicable: (i) Any serious or willful violation of 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 job order contractor. (ii) Any debarment, disqualification, or removal from a federal, state, or local government public works project. (iii) Any instance where the job order contractor, or its owners, officers, or managing employees submitted a bid on a public works project and were found to be nonresponsive, or were found by an awarding body not to be a responsible bidder. (iv) Any instance where the job order contractor, or its owners, officers, or managing employees defaulted on a construction contract. (v) 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 regarding the payment of wages, benefits, apprenticeship requirements, or personal income tax withholding, or of Federal Insurance Contribution Act (FICA) withholding requirements settled against any member of the job order contractor. (vi) Any bankruptcy or receivership of any member of the job order contractor, including, but not limited to, information concerning any work completed by a surety. (vii) Any settled adverse claims, disputes, or lawsuits between the owner of a public works project and any member of the job order contractor during the five years preceding submission of a bid under this article, 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. (G) In the case of a partnership or any 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 fully liable for the performance under the job order contract. (2) The information required under 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 under 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. 20919.5. (a) The maximum total dollar amount that may be awarded under a single job order contract shall not exceed five million dollars ($5,000,000) in the first term of the job order contract and, if extended or renewed, ten million dollars ($10,000,000) over the maximum two terms of the job order contract adjusted annually to reflect the percentage change in the California Consumer Price Index. (b) Job order contracts may be executed for an initial contract term of no more than 12 months, with the option of extending or renewing the job order contract for two 12-month periods. The term of the job order contract shall be for the contract term or whenever the maximum value of the contract is achieved, whichever is less. All extensions or renewals shall be priced as provided in the request for bids. The extension or renewal shall be mutually agreed to by the unified school district and the job order contractor. (c) The unified school district may issue job orders to the job order contractor that has been awarded the job order contract. The job order shall be based on a project scope of work prepared by the unified school district as well as a proposal from the job order contractor who is awarded the job order contract. No single job order may exceed one million dollars ($1,000,000). (d) It is unlawful to split or separate into smaller job orders any project for the purpose of evading the cost limitation provisions of this chapter. (e) All work performed under the job order contract shall be covered by a project stabilization agreement. 20919.6. (a) All work bid under the job order contract shall comply with Chapter 4 (commencing with Section 4100) of Part 1 of Division 2 and is subject to all of the penalties and provisions set forth in that chapter. (b) For purposes of Article 60.3, if the primary job order contractor chooses to use subcontractors, the primary job order contractor is required to verify that the subcontractors possess the appropriate licenses and credentials required to perform construction. (c) Notwithstanding subdivision (a), the primary job order contractor may use subcontractors that are not listed at the time of bid of the job order contract if the work to be performed under that job order contract is less than ten thousand dollars ($10,000). (d) If the primary job order contractor chooses to use a subcontractor that is not listed at the time of bid to perform work on a job order contract that is less than ten thousand dollars ($10,000), both of the following apply: (1) The unified school district shall provide public notice of the availability of work to be subcontracted by trade. The public notice shall include the scope of work; the project location; the name, address, and the telephone number of the primary job order contractor; and the closing date, time, and location for sealed bids to be submitted. (2) The primary job order contractor shall take sealed bids from the subcontractors solicited for the proposal. These bids shall be publicly opened at a prescribed time and place by the primary job order contractor. After the bids are opened, they shall be forwarded to the unified school district which shall maintain them as public records. (e) If the unified school district determines that there has been bid shopping by the primary job order contractor, the unified school district shall terminate the job order contract. If the unified school district determines that a job order contractor has violated Chapter 4 (commencing with Section 4100) of Part 1 of Division 2, the unified school district may declare the contractor ineligible to bid on job order contracts for a period of time to be determined by the unified school district. 20919.7. (a) A job order contract shall set forth in the general conditions of the job order contract the party or parties responsible for seeing that the provisions of Article 2 (commencing with Section 1770) of Chapter 1 of Part 7 of Division 2 of the Labor Code are complied with. (b) For purposes of job order contracting, prevailing wages when required to be paid shall apply to all work ordered under the job order contract regardless of thresholds set forth in Section 1771.5 of the Labor Code. (c) The job order contractor shall pay the prevailing wage in effect at the time the job order is issued by the unified school district and all increases as published by the Department of Industrial Relations for the term of the job order contract, including all overtime, holiday, and shift provisions published by the Department of Industrial Relations. (d) The unified school district shall designate one individual within its labor compliance office to act as a monitor to inspect job sites for labor compliance violations at the request of the designated labor representative. 20919.8. A willful violation of Section 20919.6 occurs when the job order contractor or subcontractor knew or reasonably should have known of his or her obligations under the public works law and deliberately fails or refuses to comply with its provisions. The unified school district using job order contracting shall publish and distribute to the Labor Commission a list of all job order contractors or subcontractors who violate this provision and the unified school district shall not award a job order contract or any future job orders under an existing job order contract to any contractor or subcontractor who violates this provision during the effective period of debarment of the contractor or subcontractor. 20919.9. For purposes of employment of apprentices on job order contracts, when the individual job order involves more than thirty thousand dollars ($30,000) or 20 working days, all general contractors or subcontractors shall comply with the following: (a) Prior to commencing work on an individual job order, every contractor shall submit job order award information to an applicable apprenticeship program that can supply apprentices to the site of the job order. The information submitted shall include an estimate of the journeyman hours to be performed under the contract, the number of apprenticeships proposed to be employed, and the approximate dates the apprentices would be employed. A copy of this information shall also be submitted to the awarding agency if requested by the awarding agency. (b) The ratio of work performed by apprentices to journeymen employed in a particular craft or trade on the job order may be no higher than the ratio stipulated in the apprenticeship standard under which the apprenticeship program operates where the job order contractor agrees to be bound by those standards but, except as otherwise provided in Section 1777.5 of the Labor Code, in no case shall the ratio be less than one hour of apprenticeship work for every five hours of journeyman work. (c) Every apprentice employed under the job order contract shall be paid the prevailing rate of per diem wages for apprentices in the trade to which he or she is registered and shall be employed only at the work of the craft or trade to which he or she is registered. (d) Every apprentice employed under the job order contract shall be hired from the local joint labor management apprenticeship committee that has jurisdiction in the geographic area of the project. 20919.10. A job order contractor or subcontractor that knowingly violates the provisions involving employment of apprentices shall forfeit as a civil penalty an amount not exceeding one hundred dollars ($100) for each full calendar day of noncompliance. The amount of this penalty shall be based on consideration of whether the violation was a good faith mistake due to inadvertence. A contractor or subcontractor that knowingly commits a second or subsequent violation of the provisions involving employment of apprentices within a three-year period where the noncompliance results in apprenticeship training not being provided as required, shall forfeit as a civil penalty a sum of not more than three hundred dollars ($300) for each full calendar day of noncompliance and shall not be awarded any further job orders under the job order contract and shall be precluded for a period of one year from bidding on any future job order contracts. 20919.11. In order to prevent fraud, waste, and abuse, the unified school district adopting job order contracting shall do all of the following: (a) Prepare for each individual job order developed under a job order contract an independent unified school district estimate. The estimate will be prepared prior to the receipt of the contractor's offer to perform work and will be compared to the contractor's proposed price to determine the reasonableness of that price before issuance of any job order. The basis for any adjustments to the unified school district estimate is to be documented. In the event that the contractor's proposal for a given job order is found to be unreasonable, not cost effective, or undesirable, the unified school district is under no obligation to issue the job order to the job order contractor, and may instead utilize any other available procurement procedures. (b) The unified school district may not issue a job order until the job order has been reviewed and approved by at least two levels of management. (c) Once a job order has been issued, all documents pertaining to preparation and approval of the job order, including the independent unified school district estimate, shall be available for public review. 20919.12. If the unified school district adopts the job order contracting process, the unified school district shall submit to the Office of Public School Construction in the Department of General Services, the Senate and Assembly Committees on Business and Professions, the Senate and Assembly Committees on Education, and the Joint Legislative Budget Committee before December 1, 2011, a report containing a description of each job order contract procured, and the work under each contract completed on or before November 1, 2011. The report shall be prepared by an independent third party and the unified school district shall pay for the cost of the report. The report shall include, but not be limited to, all of the following information: (a) A listing of all projects completed under each job order contract. (b) The job order contractor that was awarded each contract. (c) The estimated and actual project costs. (d) The estimated procurement time savings. (e) A description of any written protests concerning any aspect of the solicitation, bid, proposal, or award of the job order contract, including, but not limited to, the resolution of the protests. (f) An assessment of the prequalification process and criteria. (g) A description of the labor force compliance program required under Section 20919.4, and an assessment of the impact on a project where compliance with that program is required. (h) Recommendations regarding the most appropriate uses for the job order contract process. 20919.13. If, after 30 days from receipt of the invoice, a contract has not been paid, the contractor shall contact the designated unified school district employee to resolve payment. If the contact with the unified school district's designee does not provide full payment within three business days, the contractor may request a special convening of the payment resolution committee. (a) The payment resolution committee shall be composed of a representative of the contractor, a representative from labor, a representative designated by the director of facilities within the unified school district, and a representative designated by the director of facilities support services within the unified school district. (b) After convening, the committee shall make its recommendation of payment within three business days. 20919.14. It is the intent of the Legislature that a moratorium be placed on the enactment of any additional legislation authorizing school districts to use job order contracting until the Legislature has received the reports required by Section 20919.12. 20919.15. This article shall remain in effect only until December 1, 2012, and as of that date is repealed, unless a later enacted statute, that is enacted before December 1, 2012, deletes or extends that date.