San Diego Municipal Code Div. 34 Alternative Procurement of Design-Build Contracts

for Qualifying Complex Public Facilities (“Alternative Procurement of Design-Build Contracts for Qualifying Complex Public Facilities” added 10-18-1999 by O-18696 N.S.)

Division 33 of Chapter 2, Article 2 of the San Diego Municipal Code establishes general guidelines for the award, use and evaluation of Design-Build contracts. The purpose of this Division is to provide alternative definitions and guidelines for the award, use, evaluation, administration and performance of Design-Build contracts in connection with certain complex public facilities. Nothing in Division 34 is intended to limit the City’s ability to enter into Design-Build contracts in accordance with Division 33 of Chapter 2, Article 2 of the San Diego Municipal Code. (“Purpose and Intent” added 10-18-1999 by O-18696 N.S.)

All defined terms in this Division appear in italics. For purposes of this Division, the following definitions apply:

“Design-Build” means a public works contract procurement method for a contract
pursuant to which the party providing construction services for the project (a) also
will provide certain design services in connection with the project or (b) will be
engaged prior to completion of the final design for the project and will be obligated to
provide advice and input regarding the final design for the project.

“Design-Build Entity” means a person, partnership, corporation, or other legal entity
(other than a Procurement Consultant) that is able to provide appropriately licensed
contracting, architectural, and engineering services as needed for the design and
construction of a Qualifying Complex Public Facility.

“Design-Build Entity Member” includes any person who provides licensed
contracting, architectural, or engineering services.

“Procurement Agreement” means an agreement with a Procurement Consultant
pertaining to the services to be provided by the Procurement Consultant in
connection with a Qualifying Design-Build Contract.

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“Procurement Consultant” means a person, partnership, corporation, or other legal
entity that the Council has determined has the capability to provide negotiation,
administration, or other professional services in connection with the negotiation,
letting, administration, and performance of a Qualifying Design-Build Contract.

“Qualifying Design-Build Contract” means a Design-Build public works contract
with a Design-Build Entity for a Qualifying Complex Public Facility that requires the
Design-Build Entity to perform detailed design and construction of all or any portion
of the Qualifying Complex Public Facility on a fixed price or guaranteed maximum
price basis.

“Qualifying Complex Public Facility” means a facility (including without limitation
libraries, educational facilities, administration facilities, parking facilities and
facilities for the public exhibition of music, visual art, spectator sports, flora or fauna)
to be owned in whole or in part by the City and for which:

(a) the Council has determined that:

(1) due to anticipated unique operational, aesthetic or other attributes of the facility, use of the Design-Build alternative procurement method will enhance the design or construction of the facility; and

(2) effective procurement or performance of a Design-Build contract for
the facility will be facilitated by the assistance of a Procurement
Consultant; and

(b) the Council has established the following fundamental standards for the
completion of the facility:

(1) a general program and design concept for the facility;

(2) a general timeline for completion of the facility; and

(3) a maximum amount of City funds to be applied to the design and
construction of the facility.
(“Definitions” added 10-18-1999 by O-18696 N.S.)

(a) In order to facilitate the negotiation, letting and administration of Qualifying Design-Build Contracts, the City Manager, with the approval of the Council, may enter into Procurement Agreements with Procurement Consultants.

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Procurement Agreements are Consultant agreements as otherwise set forth in
the Charter or Municipal Code. Each Procurement Agreement shall obligate
the Procurement Consultant to:

(1) administer the negotiation, letting, and performance of the Qualifying
Design-Build Contracts pursuant to the procedures and terms
established in the Procurement Agreement, which procedures shall be
consistent with the requirements of Division 34;

(2) determine the scope of the design and construction services to be
provided by the Design-Build Entity; and

(3) perform the services described in Section 22.3403(a)(1) and (2) in a
manner which shall cause the Qualifying Complex Public Facility to
be completed:

(A) such that the general program and design concepts for the
facility established by the Council are incorporated into the
Qualifying Complex Public Facility, provided that the City
may permit the Procurement Consultant, in administering the
design and construction of the Qualifying Complex Public
Facility, to revise the general program and design concepts so
long as the revisions do not materially detract from the
anticipated experience to be obtained in the use of the facility;
and

(B) such that the total expenditure of City funds is less than or
equal to the maximum amount established by the Council for
design and construction of the facility.

(4) endeavor in good faith to cause the completion of the facility within
the general timeline for completion of the facility established by the
Council, as the general timeline may be extended due to events of
force majeure or other circumstances not reasonably within the control
of the Procurement Consultant.

(b) The Procurement Agreement may include other provisions consistent with
Division 34, including provisions to the effect that:

(1) the Procurement Consultant may be authorized to administer the Qualifying Design-Build Contract;

(2) the Procurement Consultant may be authorized to undertake any of the

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activities described in Sections 22.3404, 22.3405, 22.3406, 22.3409 or
22.3410 on behalf of the City, including, without limitation,
administrating the preparation of the request for proposal, the
prequalification of Design-Build Entities, the selection of the Design-
Build Entity, the competitive negotiation of the Qualifying Design-
Build Contract, and the letting of the Qualifying Design-Build
Contract, all on behalf of the City as the City’s authorized agent for
such purpose;

(3) the Procurement Consultant, without additional approval from the
City, may be permitted to enter into agreements related to the design
and construction of the Qualifying Complex Public Facility so long as
the Procurement Consultant enters into the agreements in its own
name and without liability to the City;

(4) the Procurement Consultant, without additional approval from the
City, may be authorized to enter into other agreements for the
provision of other goods and services ancillary to the Qualifying
Complex Public Facility or the Qualifying Design-Build Contract so
long as the Procurement Consultant enters into the agreements in its
own name and without liability to the City; and

(5) the City may pay directly or reimburse the Procurement Consultant
for the costs incurred with respect to agreements described in Section
22.3403(b)(3) or (4) in addition to other provisions for the
compensation of the Procurement Consultant. No payment or
reimbursement shall be required or authorized if such payment or
reimbursement would cause the total expenditure by the City to exceed
the maximum amount approved by the Council for the design and
construction of the Qualifying Complex Public Facility.

(c) The agreements referenced in Section 22.3403(b)(3) and (4) may include, for
example and without limitation, agreements with contractors, consultants or
experts for the design, inspection and testing of portions of the Qualifying
Complex Public Facility and agreements for the procurement of fixtures,
furnishings and equipment to be provided to the Qualifying Complex Public
Facility.
(“Procurement Agreements” added 10-18-1999 by O-18696 N.S.)

For purposes of Division 34 only, prior to procuring a Qualifying Design-Build

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Contract, the City shall prepare a request for proposals setting forth the scope of the project that may include, but is not limited to, the size, type, and desired design character of the buildings and site, performance specifications and drawings, specifications or other criteria. The performance specifications may 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 designated by the City. (“Procurement of Qualifying Design-Build Contracts” added 10-18-1999 by O-18696 N.S.)

The City may establish a competitive prequalification and selection process for Design-Build Entities that specifies the prequalification criteria, if any, as well as recommends the manner in which the winning entity will be selected. At the City’s option, the manner in which the winning entity will be selected may include a process pursuant to which the City may select, based on proposals submitted in response to a Request for Proposals, one or more Design-Build Entities with which to negotiate the definitive Qualifying Design-Build Contract. Nothing in this Division precludes a Design-Build contract from being awarded to a Sole Source, if, in advance of the contract, the City Manager certifies in writing the Sole Source status of the provider. (“Competitive Prequalification and Selection Process” added 10-18-1999 by O-18696 N.S.)

Prequalification may be limited to consideration by the City of all or any of the following criteria supplied by a Design-Build Entity:

(a) Possession of all required licenses, registrations, and credentials in good
standing that are required for the Design-Build Entity to undertake the portion
of the design and construction of the Qualifying Complex Public Facility that
is to be performed by the Design-Build Entity.

(b) Submission of documentation establishing that the Design-Build Entity
members have completed, or demonstrated the capability to complete,
projects 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 Qualifying Complex Public
Facility.

(c) Submission of a proposed project management plan establishing that the
Design-Build Entity has the experience, competence, and capacity needed to

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effectively complete the Qualifying Complex Public Facility.

(d) Submission of 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
work required under the Qualifying Design-Build Agreement.

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

(f) Provision of a declaration providing detail for the past five years concerning
all of the following:

(1) Civil or criminal violations of the Occupational Safety and Health Act
against any Design-Build Entity Member.

(2) Civil or criminal violations of the Contractors’ State License Law
against any member of the Design-Build Entity Member.

(3) Any conviction of any member of the Design-Build Entity of
submitting a false or fraudulent claim to a public agency.

(4) Civil or criminal violations 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 against any member of the Design- Build Entity. For purposes of Section 22.3406(f)(4), only violations by a Design-Build Entity Member as an employer shall be deemed applicable, unless it is shown that the Design-Build Entity Member, in his or her capacity as an employer, had knowledge of a subcontractor’s violations or failed to comply with the conditions set forth in Section 1775(b) of the State Labor Code.

(5) Civil or criminal violations of federal or state law against any
Design-Build Entity Member governing equal opportunity
employment, contracting or subcontracting.

(g) Provision of a declaration that the Design-Build Entity will comply with all
other provisions of law applicable to the project. The declaration shall state

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that reasonable diligence has been used in its preparation and that it is true and

complete to the best of the signer’s knowledge.

(“Prequalification Criteria” added 10-18-1999 by O-18696 N.S.)

The Design-Build Entity shall provide documentation of its subcontractor and employment outreach program to all subcontractors in the required disciplines of the project. (“Documentation of Outreach Programs” added 10-18-1999 by O-18696 N.S.)

It is unlawful to submit any declaration under this Division containing any material matter that is false. (“False Declaration Unlawful” added 10-18-1999 by O-18696 N.S.)

The City shall select one of the following methods as the process to be used for the selection of the winning entity:

(a) A Design-Build competition based on drawings, specifications, or other
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 approach to complete (or to
provide advice regarding the completion of) the design of the facility
(based upon the drawings, specifications and other criteria set forth by
the City in the request for proposals), initial and/or lifecycle costs,
project features, financing, quality, capacity, schedule, the impact
upon operational and functional performance of the facility of the
proponent’s proposed approach to complete the design of the facility,
and any of the prequalification criteria. However, any criteria and
methods used to evaluate proposals shall be limited to those contained
in the request for Design-Build proposals.

(2) Any architectural firms, engineering firms, specialty consultants, or
individuals retained by the City to assist in the development of criteria
or preparation of the request for proposals shall not be eligible to
participate in the competition with any Design-Build Entity.

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(3) Award shall be made to the Design-Build Entity whose proposal is
judged as providing best value meeting the interests of the City and
meeting the objectives of the project.

(b) 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. Drawings and specifications detailing
the requirements of the project may accompany the request for proposals.

(1) The City shall establish fundamental standards related to 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) Any architectural firms, engineering firms, specialty consultants, or individuals retained by the City to assist in the preparation of the preliminary design or request for proposals shall not eligible to participate in the competition with any Design-Build Entity.

(3) Award shall be made to the Design-Build Entity on the basis of the
technical criteria and methodology, including price, whose proposal is
judged as providing best value in meeting the interests of the City and
meeting the objectives of the project.

(c) A Design-Build competition based on program requirements and a detailed
scope of work, including any design drawings and specifications set forth by
the City in the request for proposals.

(1) Any architectural firms, engineering firms, specialty consultants, or
individuals retained by the City to assist in the preparation of the
design or request for proposals shall not be eligible to participate in the
competition with any Design-Build Entity.

(2) Award shall be made on the basis of the lowest responsible and
reliable bid.

(d) A “Sole Source” award as otherwise allowed by law.
(“Selection Method” added 10-18-1999 by O-18696 N.S.)

The City recognizes that the Design-Build Entity is charged with performing both

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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.

(a) It is the intent of the City to establish a clear process for the selection and
award of subcontracts entered into pursuant to this Division in a manner that
retains protection for subcontractors while enabling Design-Build projects to
be administered in an efficient fashion.

(b) All of the following requirements shall apply to subcontractors, licensed by
the state, that are employed on Design-Build projects undertaken pursuant to
this Division.

(1) The Design-Build Entity in each Design-Build proposal shall specify
the construction trades or types of subcontractors that may be named
as members of the Design-Build Entity at the time of award. In
selecting the trades that may be identified as members of the Design-
Build Entity, the Design-Build Entity shall identify the trades deemed
essential in the design considerations of the project. All
subcontractors that are listed at the time of award shall be afforded the
protection of all applicable laws.

(2) All subcontracts that were not listed by the Design-Build Entity at the
time of award in accordance with Section 22.3409(b)(1) shall be
performed and awarded by the Design-Build Entity, in accordance
with a bidding process set forth in the Qualifying Design-Build
Contract.
(“Work Listing” added 10-18-1999 by O-18696 N.S.)

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Article 2: Administrative Code