Fresno Municipal Code Art. 5 Design-Build Contracts

The purpose of this article is to provide definitions and guidelines for the award, use and evaluation of design-build contracts. Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning and application of words and phrases used in this chapter. The definition of each word and phrase shall constitute, to the extent applicable, the definition of each word which is derivative from it, or from which it is a derivative, as the case may be.

(a) "Design-build" shall mean a procurement method for a public work of improvement contract in which both the design and the construction of a public work of improvement are procured from a single entity.

(b) "Design-Build Entity" shall mean a partnership, corporation, or other legal entity that is able to provide appropriately licensed contracting, architectural and engineering services as needed.

(c) "Design-Build Entity Member" shall mean any person who provides licensed contracting, architectural or engineering services on behalf of the Design-Build Entity.

(Added Ord. 2003-11, § 11, 4-4-03; Am. Ord. 2007-96, § 3, eff. 1-19-08).

The City Manager shall select one of the methods expressly set forth herein as the process to be recommended for the selection of the Design-Build Entity by the Council. No design build process or Design-Build Entity selection shall be initiated without Council approval.

(a) Performance Specifications Method. A design-build competition based on performance specifications and criteria set forth by the city in the request for proposals.

(1) Criteria used in this form of evaluation of proposals may include, but not be limited to, items such as proposed design approach, initial and/or life-cycle costs, project features, financing, quality, capacity, schedule, and operational and functional performance of the facility. However, any criteria and methods used to evaluate proposals shall be limited to those contained in the request for design-build proposals.

(2) Subject to the right to reject any and all proposals, award by Council shall be on the basis of the criteria specified, including initial and/or life-cycle costs, and made to the Design-Build Entity whose proposal is judged as providing the best value in meeting the interest of the city and the objectives of the design-build project.

(b) Program and Preliminary Design Method. A design-build competition based on program requirements, performance specifications, and a preliminary design or combination thereof set forth by the city in the request for proposals. Limited drawings and specifications detailing the requirements of the design-build project may accompany the request for proposals.

(1) The City Manager shall establish technical criteria and methodology, including price, to evaluate proposals and shall describe the criteria and methodology of evaluation and selection in the request for design-build proposals.

(2) Subject to the right to reject any and all proposals, award by Council shall be on the basis of the technical criteria and methodology, including price, and made to the Design-Build Entity whose proposal is judged as providing the best value in meeting the interest of the city and the objectives of the design-build project.

(c) Bid Invitation Method. A design-build competition based on program requirements and a detailed scope of work, including any preliminary design drawings and specifications set forth by the city in the bid invitation. Subject to the right to reject any and all bids, award by Council shall be made to the lowest responsive and responsible bidder.

(d) Qualifications Method. A design-build competition based on qualifications to meet program and performance requirements as set forth by the city in the request for qualifications. Limited drawings and specifications detailing the requirements of the design-build project may accompany the request for qualifications.

(1) The City Manager shall establish technical criteria and methodology to evaluate proposals and shall describe the criteria and methodology of evaluation and selection in the request for design-build proposals.

(2) Subject to the right to reject any and all proposals. award by Council shall be on the basis of technical criteria and methodology and may include, but not limited to a guaranteed maximum price for the design-build project and made to the Design-Build Entity whose proposal is judged as providing the best value in meeting the interests of the city and objectives of the design-build project.

(3) The City Manager shall have the discretion to determine whether a design-build contract is one or two phases, and may include additional terms, as set forth in the request for proposals.

(e) A Design-build competition based on a Design-build procurement process included or referenced in the statute or regulation of the design-build project funding source. Such funding sources shall include, but are not limited to the Federal Transit Administration, the Federal Aviation Administration, and the Federal Highway Administration.

(Added Ord. 2003-11, § 11, 4-4-03; Am. Ord. 2007-96, § 3, eff. 1-19-08; Am. Ord. 2019-015, § 1, eff. 7-28-19).

The provisions of this article shall not apply to any of the following:

(a) Work done by the city with its own personnel and/or equipment.

(b) Any public work of improvement obtained from or through any governmental agency.

(c) When Council determines that the work to be done can only be provided by one source, and the purchase is authorized by resolution of the Council containing a declaration of the facts constituting the sole source.

(d) When the purchase is deemed by Council to be of urgent necessity for the preservation of life, health or property, and such purchase is authorized by resolution passed by at least five affirmative votes of the Council and containing a declaration of the facts constituting the urgency.

(Added Ord. 2003-11, § 11, 4-4-03; Am. Ord. 2007-96, § 3, eff. 1-19-08).

For purposes of this article only, prior to procuring a design-build contract, the city shall prepare the appropriate request for proposals or bid invitation setting forth the scope of the project that may include, but is not limited to, the size, type, and desired design character of the facilities and site, and performance specifications. The performance specifications shall describe the quality of construction materials, assemblies, and other information deemed necessary to adequately describe the city's needs. The performance specifications shall be prepared by a design professional.

(Added Ord. 2003-11, § 11, 4-4-03; Am. Ord. 2007-96, § 3, eff. 1-19-08).

The City Manager may establish a competitive pre-qualification and selection process for Design-Build Entities that specifies the pre-qualification criteria, as well as recommends the manner in which the winning Design-Build Entity will be selected. The pre-qualification criteria for the purchase of the public work of improvement shall include whether the Design-Build Entity or any Design-Build Entity Member is a local business. For purposes of this article, "local business" shall mean a business with a fixed primary or branch office within a twenty-five mile radius of Fresno City Hall, located at 2600 Fresno Street in the City of Fresno, and which fixed primary or branch office was established prior to the city requesting proposals or inviting bids for the respective purchase.

(Added Ord. 2003-11, § 11, 4-4-03; Am. Ord. 2007-96, § 3, eff. 1-19-08).

All declarations submitted pursuant to this section shall be signed under penalty of perjury and state that reasonable diligence has been used in its preparation and that it is true and complete to the best of the signer's knowledge. Pre-qualification may be limited to consideration of all or any of the following documentation or evidence submitted by a Design-Build Entity at the request of the city:

(a) Proof of possession of all required licenses, registration and credentials in good standing that are required to design and construct the project.

(b) Documentation establishing that the Design-Build Entity Members have completed, or demonstrated the capability to complete, a project of similar size, scope, building type or complexity, and that proposed key personnel have sufficient experience and training to competently manage and complete the design and construction of the project.

(c) A proposed project management plan establishing that the Design-Build Entity has the experience, competence and capacity needed to effectively complete the project.

(d) Evidence establishing that the Design-Build Entity has the capacity to obtain all required payment and performance bonding, liability insurance, and errors and omissions insurance, as well as a financial statement assuring the city that the Design-Build Entity has the capacity to complete the project.

(e) A declaration wherein the applying Design-Build Entity Members declare that they have not had a surety company finish work on any project within the past five years.

(f) A declaration stating that the Design-Build Entity will comply with all laws and regulations applicable to the project.

(g) A declaration stating that if awarded the contract, the Design-Build Entity and its Design-Build Members are in compliance with all laws and regulations regarding conflicts of interest.

(h) A declaration for each Design-Build Entity and Design-Build Entity Member stating that each is or is not a local business.

(i) A declaration providing all relevant information for the past five years concerning all of the following:

(1) Any civil, criminal or administrative liability imposed, or action filed, against the Design-Build Entity or any Design-Build Entity Member for violation of the Occupational Safety and Health Act.

(2) Any civil, criminal or administrative liability imposed, or action filed, against the Design-Build Entity or any Design-Build Entity Member for violation of the Contractors' State License Law.

(3) Any civil, criminal or administrative liability imposed, or action filed, against the Design-Build Entity or any Design-Build Entity Member for submitting a false or fraudulent claim to a governmental agency.

(4) Any civil, criminal or administrative liability imposed, or action filed, against the Design-Build Entity or any Design-Build Entity Member for violation of federal or state law governing the payment of wages, benefits or personal income tax withholding, or of Federal Insurance Contributions Act (FICA) withholding requirements, state disability insurance withholding or unemployment insurance payment requirements. For purposes of this subdivision, only violations by a Design-Build Entity/Design-Build Entity Member as an employer shall be deemed applicable, unless it is shown that the Design-Build Entity/Design-Build Entity Member, in its capacity as an employer, has knowledge of a subcontractor's violations or failed to comply with the conditions set forth in Section 1775(b) of the Labor Code, as amended.

(5) Any civil, criminal or administrative liability imposed, or action filed, against the Design-Build Entity or any Design-Build Entity Member for violation of any federal or state law governing equal opportunity employment, contracting or subcontracting.

(Added Ord. 2003-11, § 11, 4-4-03; Am. Ord. 2007-96, § 3, eff. 1-19-08).

If the City Manager determines that pre-qualification of prospective bidders/proposers is required for a particular project pursuant to Section 4-505, the City Manager shall determine which bidders/proposers are qualified to bid/propose on that project based upon the process established pursuant to such section. If the City Manager determines any bidder/proposer is not qualified to bid/propose on a project pursuant to the established pre-qualification process for the project, the Purchasing Manager on behalf of the City Manager shall provide written notice to the bidder/proposer which includes the bases for the determination, an identification of any supporting evidence therefor, and an opportunity for the bidder/proposer to appeal the determination. Any person aggrieved by a determination made by the City Manager pursuant to this section may appeal the determination only by complying with the requirements set forth in accordance with a resolution adopted by Council establishing procedures and requirements for appealing pre-qualification determinations hereunder. Unless otherwise provided by such resolution, the appeal shall be heard by the Administrative Hearing Officer pursuant to, and in accordance with the procedures set forth in, Chapter 1, Article 4 of this Code.

(Added Ord. 2003-11, § 11, 4-4-03; Am. Ord. 2007-96, § 3, eff. 1-19-08).

The city recognizes that the Design-Build Entity is charged with performing both design and construction. Because a design-build contract may be awarded prior to the completion of the design, it is often impracticable for the Design-Build Entity to list all subcontractors at the time of the award. It is the intent of the city to establish a clear process for the selection and award of subcontracts entered into pursuant to this article in a manner that affords protection for subcontractors while enabling design-build projects to be administered in an efficient fashion. All of the requirements expressly set forth herein shall apply to subcontractors, licensed by the state, that are employed on design-build projects undertaken pursuant to this article.

(a) The Design-Build Entity in each design-build proposal shall specify the construction trades or types of subcontractors that may be named as Design-Build Entity Members of the Design-Build Entity at the time of award. In selecting the trades that may be identified as Design-Build Entity Members of the Design-Build Entity, the Design-Build Entity shall identify the trades deemed essential in the design considerations of the design-build project.

(b) Subcontracts not listed at time of award shall be performed or awarded by the Design-Build Entity in accordance with a bidding process set forth in the respective request for proposals or bid invitation. The Design-Build Entity shall furnish to the city documentation to verify that all subcontracts not listed at the time of award were subsequently awarded in accordance with the respective request for proposals or bid invitation. All subcontractors that are listed at the time of award, or subsequently in accordance with the respective request for proposals or bid invitation, shall be afforded the protection of Section 4107 of the Public Contract Code, as amended.

(Added Ord. 2003-11, § 11, 4-4-03; Am. Ord. 2007-96, § 3, eff. 1-19-08).