San Bernardino Municipal Code Ch. 12.21 Design-Build

The purpose of this chapter is to provide definitions and guidelines for the award, use and evaluation of design-build contracts.

(Ord. MC-1423, passed 7-5-2016)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

BEST VALUE. A value determined by evaluation of objective criteria that may include, but not be limited to, price, features, functions, life-cycle costs, experience and past performance. A BEST VALUE determination may involve the selection of the lowest cost proposal meeting the interests of the city and meeting the objectives of the project, selection of the best proposal for a stipulated sum established by the city or a tradeoff between price and other specified factors.

CITY. The City of San Bernardino.

CONSTRUCTION SUBCONTRACT. Each subcontract awarded by the design-build entity to a subcontractor that will perform work or labor or render service to the design-build entity in or about the construction of the work or improvement, or a subcontractor licensed by the State of California that, under subcontract to the design-build entity, specially fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications produced by the design-build team.

DESIGN-BUILD. A project delivery process in which both the design and construction of a project are procured from a single entity.

DESIGN-BUILD ENTITY. A corporation, limited liability company, partnership, joint venture or other legal entity that is able to provide appropriately licensed contracting, architectural and engineering services as needed pursuant to a design-build contract.

DESIGN-BUILD TEAM. The design-build entity itself and the individuals and other entities identified by the design-build entity as members of its team. Members shall include the general contractor and, if utilized in the design of the project, all electrical, mechanical and plumbing contractors.

PROCUREMENT AGENT. The City Manager, the General Manager of the City Municipal Water Department or the designee of either the City Manager or General Manager.

PUBLIC WORKS PROJECT. Any city project requiring design and construction services.

(Ord. MC-1423, passed 7-5-2016)

Pursuant to the City Charter, and notwithstanding any provision to the contrary in the California Public Contracts Code or in any other ordinance or procedure of the city, the use of design-build procurement is authorized for any public works project, including, but not limited to, any public works project undertaken by the City Municipal Water Department, no matter the amount. The city, with approval of the Mayor and City Council, or for public works projects undertaken by City Municipal Water Department, the approval of the Board of Water Commissioners may award a public works project contract to the low bid or the best value. Any code, ordinance or procedure in conflict with the foregoing authorization is specifically superseded.

(Ord. MC-1423, passed 7-5-2016)

(A) The procurement agent shall prepare a set of documents setting forth the scope and estimated price of the public works project. The documents may include, but need not be limited to, the size, type and desired design character of the public works project; performance specifications covering the quality of materials, equipment, workmanship, preliminary plans or building layouts; or any other information deemed necessary to describe adequately the city’s needs. The performance specifications and any plans shall be prepared by a design professional who is duly licensed and registered in the state.

(B) (1) The procurement agent shall prepare and issue a request for qualifications in order to pre-qualify or short-list the design-build entities whose proposals shall be evaluated for final selection.

(2) The request for qualifications shall include, but need not be limited to, the following elements:

(a) Identification of the basic scope and needs of the public works project or contract, the expected cost range, the methodology that will be used by the city to evaluate proposals, the procedure for final selection of the design-build entity and any other information deemed necessary by the city to inform interested parties of the contracting opportunity;

(b) Significant factors that the city reasonably expects to consider in evaluating qualifications, including technical design and construction expertise, acceptable safety record and all other non-price-related factors;

(c) 1. A standard template request for statements of qualifications prepared by the city. In preparing the standard template, the city may consult with the construction industry, the building trades and surety industry and other cities using design-build procurement.

2. The template shall require the following information:

a. If the design-build entity is a privately held corporation, limited liability company, partnership or joint venture, a listing of all of the shareholders, partners or members known at the time of statement of qualification submission who will perform work on the public works project;

b. Evidence that the members of the design-build team 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 the design and construction of the public works project, and a financial statement that ensures that the design-build entity has the capacity to complete the public works project;

c. The licenses, registration and credentials required to design and construct the public works 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; and

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 the Cal. Labor Code, § 3201.5.

(d) 1. The information required under this section shall be certified under penalty of perjury by the design-build entity and its general partners or joint venture members.

2. Information required under this section that is not otherwise a public record under the California Public Records Act (Cal. Gov’t Code, Title 1, Division 10, Part 2, Chapter 1, commencing with § 7921.000) shall not be open to public inspection.

(C) (1) Based on the documents prepared as described in division (A) above, the procurement agent shall prepare a request for proposals that invites pre-qualified or short-listed entities to submit competitive sealed proposals in the manner prescribed by the city.

(2) The request for proposals shall include, but need not be limited to, the following elements:

(a) Identification of the basic scope and needs of the public works project or contract, the estimated cost of the public works project, the methodology that will be used by the city to evaluate proposals, whether the contract will be awarded on the basis of low bid or best value and any other information deemed necessary by the city to inform interested parties of the contracting opportunity;

(b) Significant factors that the city reasonably expects to consider in evaluating proposals, including, but not limited to, cost or price and all non-price-related factors;

(c) The relative importance or the weight assigned to each of the factors identified in the request for proposals; and

(d) Where a best value selection method is used, the city may reserve the right to request proposal revisions and hold discussions and negotiations with responsive proposers, in which case the city shall so specify in the request for proposals and shall publish separately or incorporate into the request for proposals applicable procedures to be observed by the city to ensure that any discussions or negotiations are conducted in good faith.

(D) For those public works projects utilizing low bid as the final selection method, the competitive bidding process shall result in lump-sum bids by the pre-qualified or short-listed design-build entities, and awards shall be made by the Mayor and City Council or, for public works projects undertaken by the City Municipal Water Department, the Board of Water Commissioners, to the design-build entity that is the lowest responsible bidder.

(E) For those public works projects utilizing best value as a selection method, the design-build competition shall progress as follows.

(1) Competitive proposals shall be evaluated by using only the criteria and selection procedures specifically identified in the request for proposals. The following minimum factors, however, shall be weighted as deemed appropriate by the procurement agent:

(a) Price, unless a stipulated sum is specified;

(b) Technical design and construction expertise; and

(c) Life-cycle costs over 15 or more years.

(2) Pursuant to division (C) above, the city may hold discussions or negotiations with responsive proposers using the process articulated in the city’s request for proposals.

(3) When the evaluation is complete, the responsive proposers shall be ranked based on a determination of value provided; provided that no more than three proposers are required to be ranked.

(4) The award of the contract shall be made to the responsible design-build entity whose proposal is determined by the Mayor and City Council, or for public works projects undertaken by the City Municipal Water Department, the Board of Water Commissioners, to have offered the best value to the public.

(5) Notwithstanding any other provision of this code, upon issuance of a contract award, the city 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.

(6) The statement regarding the city’s contract award, described in division (E)(5) above, and the contract file shall provide sufficient information to satisfy an external audit.

(Ord. MC-1423, passed 7-5-2016)

Editor’s note:

Financial information submitted for bids is discloseable, except that some corporate financial information may be protected under Cal. Gov’t Code, §§ 7927.500, 7928.705, 7927.705, 7927.605 and 7922.000 (formerly Cal. Gov’t Code, §§ 6254(a), (h) and (k); 6254.15; and 6255).

(A) The design-build entity shall provide payment and performance bonds for the public works project in the form and in the amount required by the city, and issued by a state admitted surety. The amount of the payment bond shall not be less than the amount of the performance bond.

(B) The design-build contract shall require errors and omissions insurance coverage for the design elements of the public works project.

(C) The procurement agent shall develop a standard form of payment and performance bond for its design-build public works projects.

(Ord. MC-1423, passed 7-5-2016)

(A) The procurement agent, in each design-build request for proposals, may identify specific types of subcontractors that must be included in the design-build entity statement of qualifications and proposal.

(B) Following award of the design-build contract, the design-build entity shall proceed as follows in awarding construction subcontracts with a value exceeding 0.5% of the contract price allocable to construction work:

(1) Provide public notice of availability of work to be subcontracted in accordance with the publication requirements applicable to the competitive bidding process of the city, including a fixed date and time on which qualifications statements, bids or proposals will be due;

(2) Establish reasonable qualification criteria and standards; and

(3) Award the subcontract either on a best value basis or to the lowest responsible bidder. The process may include pre-qualification or short-listing. The foregoing process does not apply to construction subcontractors listed in the original proposal.

(Ord. MC-1423, passed 7-5-2016)

Nothing in this chapter affects, expands, alters or limits any rights or remedies otherwise available at law, including, but not limited to, the ability of the Mayor and City Council, or for public works projects undertaken by the City Municipal Water Department, the Board of Water Commissioners, to reject all bids pursuant to the authority granted by the City Charter.

(Ord. MC-1423, passed 7-5-2016)