Section 21568.5 - Procurement process for Construction Manager/General Contractor method projectsThe procurement process for Construction Manager/General Contractor method projects shall proceed as follows:
(a)(1) The district shall establish a procedure for the evaluation and selection of a construction manager through a request for qualifications (RFQ). The RFQ shall include, but not be limited to, the following: (A) If the construction manager is a partnership, limited partnership, or other association, a list of all the partners, general partners, or association members known at the time of the statement of qualifications submission who will participate in the Construction Manager/General Contractor method contract.(B) Evidence that the members of the construction manager have completed, or demonstrated the experience, competency, capability, and capacity to complete, projects of similar size, scope, or complexity, and that proposed key personnel have sufficient experience and training to competently manage and complete construction of the project, as well as a financial statement that assures the district that the construction manager has the capacity to complete the project, construction expertise, and an acceptable safety record.(C) The licenses, registration, and credentials required to construct the project, including information on the revocation or suspension of any license, registration, or credential.(D) Evidence that establishes the construction manager has the capacity to obtain all required payment and performance bonding, liability insurance, and errors and omissions insurance.(E) Any prior serious or willful violation of the California Occupational Safety and Health Act of 1973 (Part 1 (commencing with Section 6300) of the Labor Code), or the federal Occupational Safety and Health Act of 1970 (Public Law 91-596), settled against any member of the construction manager, and information concerning workers' compensation experience history and worker safety program.(F) Information concerning any debarment, disqualification, or removal from a federal, state, or local government public works project. Any instance in which a construction manager, 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.(G) Any instance in which the construction manager, or its owners, officers, or managing employees, defaulted on a construction contract.(H) 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 including the payment of wages, benefits, apprenticeship requirements, or personal income tax withholding, or of the Federal Insurance Contributions Act (26 U.S.C. Sec. 3101 et seq.) withholding requirements settled against any member of the construction manager.(I) Information concerning the bankruptcy or receivership of any member of the construction manager, including information concerning any work completed by a surety.(J) Information concerning all settled adverse claims, disputes, or lawsuits between the owner of a public works project and any member of the construction manager during the five years preceding submission of a bid pursuant to this section, 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.(K) In the case of partnership or other 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 contract.(L) For the purpose of this paragraph, a construction manager's safety record shall be deemed acceptable if their experience modification rate for the most recent three-year period is an average of 1.00 or less, and their average total recordable injury/illness rate and average lost work rate for the most recent three-year period does not exceed the applicable statistical requirements for its business category.(2) The information required pursuant to this subdivision shall be verified under oath by the construction manager and its members in the manner in which civil pleadings in civil actions are verified. Information that is not a public record pursuant to the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) shall not be open to public inspection.(b) For each RFQ, the district shall generate a final list of qualified persons or firms that participated in the RFQ prior to entering into negotiations on the contract for which the RFQ applies.(c)(1) For each contract included in the RFQ, the district shall enter into 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 the multiple contracts. The negotiations shall include consideration of compensation and other contract terms that the district determines to be fair and reasonable to the district. In making this decision, the district 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 district 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 district determines to be fair and reasonable, the district shall formally terminate negotiations with that person or firm. The district 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 section and includes preconstruction services by the construction manager, the district shall enter into a written contract with the construction manager for preconstruction services under which contract the district shall pay the construction manager a fee for preconstruction services in an amount agreed upon by the district and the construction manager. The preconstruction services contract may include fees for services to be performed during the contract period, provided, however, that the district 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 district has entered into a preconstruction services contract. A preconstruction services contract shall provide for the subsequent negotiation for construction of all or any discrete 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 district shall not award the contract for construction services.(4) The district is not required to award the construction services contract.(5) Construction shall not commence on any phase, package, or element until the district and a construction manager agree in writing on either a fixed price that the district will pay for the construction to be commenced or a guaranteed maximum price for the construction to be commenced and a construction schedule for the project.(d) All subcontractors bidding on contracts pursuant to this article shall be afforded the protections contained in Chapter 4 (commencing with Section 4100) of Part 1. The construction manager shall do all of the following: (1) Provide public notice of the availability of work to be subcontracted in accordance with the publication requirements applicable to the competitive bidding process of the district.(2) Provide a fixed date and time on which the subcontracted work will be awarded in accordance with the procedure established pursuant to this article.(3) Comply with any subcontracting procedures adopted by the district that were included in the district's RFQ. If the district has adopted procedures to prequalify public works contractors, the construction manager may use the procedures to prequalify subcontractors.(e)(1) The district shall submit to the relevant committees of the Legislature, on or before January 1, 2027, a report that describes each Construction Manager/General Contractor project approved under this article.(2) The report shall provide relevant data on each project that includes, but is not limited to, all of the following:(A) The cost of the project.(B) The state of completion for the project.(C) The estimated time of completion for the project.(D) A comprehensive assessment of the effectiveness of the Construction Manager/General Contractor project delivery method relative to project cost and time savings.(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 21568.4.Ca. Pub. Cont. Code § 21568.5
Added by Stats 2022 ch 275 (AB 1845),s 2, eff. 1/1/2023.