Santa Ana Municipal Code Art. VIII Public Works Construction Rules and Regulations

(a) These rules and regulations for the contracting of public works construction services are to comply with section 421 of the city charter to:

(1) Establish efficient procedures for construction of public works;

(2) Distinguish between traditional public works construction and other more innovative modes of project management and project delivery which still comply with the city's charter; and

(3) Establish procedures to allow for the efficient and fair construction of public works without favor or prejudice.

(b) The city council finds that the city's charter, including but not limited to sections 200 and 421, conflict with existing state law set forth in the California Public Contract Code. Said charter provisions, this article and the administrative procedures adopted by the executive director of public works pursuant to section 33-204, are intended, and shall be interpreted, to constitute a complete statement of the city's public works construction rules and regulations. The city council declares there exists a fundamental conflict between the city's charter, ordinances, administrative rules and regulations, on the one hand, and the California Public Contract Code provisions regulating public works construction, on the other hand, both generally and specifically. This conflict infringes on the city's constitutional authority to govern its municipal affairs. The city council intends to and does hereby exempt public works construction from being subject to any provision of the California Public Contract Code, except to the extent that any such provisions may be expressly incorporated in applicable administrative procedures.

(Ord. No. NS-2502, § 4, 7-1-02)

Editor's note— Ord. No. NS-2963, § 4, adopted March 19, 2019, repealed § 33-201. Former § 33-201 pertained to city manager's authority and derived from Ord. No. NS-2502, adopted July 1, 2002. Similar provisions can be found in § 2-748.

For purposes of this article, the following definitions shall apply:

Construction manager shall mean an agent of the city who provides the city with professional services in the fields of technology, scheduling, ability to construct, and/or management of the fiscal aspects of a public works project. A construction manager shall be responsible for some or all of the following:

(1) Overseeing a public works project through completion of construction;

(2) Assumption of financial responsibility;

(3) Hiring of an architect/designer, if necessary, through a qualification process consistent with procedures established pursuant to section 2-803; and/or

(4) Contracting for actual construction work by award of a contract to the lowest and best bidder in conformance with section 421 of the city's charter.

Design-build-bid shall mean a procurement process in which both the design and construction manager professional services for a public works project are procured from a single entity, while the actual construction work is awarded by the entity to the lowest and best bidder in conformance with section 421 of the city's charter.

Professional services shall have the same meaning as in section 2-802 of this code.

Public works shall have the same meaning as in California Labor Code sections 1720, 1720.2, 1720.3, and 1771 and as may be amended from time to time.

Public works construction shall have the same meaning as in section 421 of the city's charter.

Public works project shall mean the totality of a project, including both professional services and public works construction, which ultimately results in the erection or improvement of public buildings, streets, drains, sewers, parks or playgrounds.

Purchasing manager shall have the same meaning as in section 2-802 of this code.

(Ord. No. NS-2502, § 4, 7-1-02; Ord. No. NS-2875, § 1, 12-16-14)

The following procedure shall apply to every contract for which final plans and specifications are available in conformance with procurement rules defined in Article VII and Article VII.II of Chapter 2 of the Santa Ana Municipal Code:

(a) Notice inviting bids. Notice inviting bids shall include a general description of the public works construction, the place to obtain the plans and specifications, and the date, time, and place for opening bids. The notice shall be published in a newspaper of general circulation in the city for at least two (2) days, the first of which shall be at least ten (10) days before the date set for opening bids. The city shall make a good faith effort to send a notice inviting bids to all businesses engaged in providing labor and materials for such construction located within the boundaries of the city.

(b) The bid. Included with the plans and specifications for a work of public works construction shall be the following documents: Instructions to bidder, proposal, bond samples and the contract. The bidder shall execute the proposal and contract, and submit them sealed with at least a ten (10) per cent bid bond, cashier's check or certified check.

(c) Award of contract. Upon opening the bids at the date, time and place stated in the notice, the aggregate bid of each bidder shall be publicly declared. Following the determination of the lowest and best bidder, the proposal and agreement from this bidder shall be sent to the city attorney for approval as to form. The documents shall then be presented to the city council for approval and authorization for execution. If two (2) or more bids received are the same and the lowest, the council may accept the one it chooses.

(d) Notification of award. A notification letter, a request for bonds, when necessary, and a copy of the fully executed contract shall be delivered to the successful bidder.

(e) Performance bonds. To secure faithful performance of the contract, the city manager is authorized to require security in the form of cash, cashier's check, certified check or corporate faithful performance bonds, in the following percentages of the aggregate amount bid: One hundred (100) per cent bond for faithful performance, and fifty (50) per cent contractor's payment bond.

(f) Rejection of bids. The right to reject all bids is expressly reserved to the city council. After rejecting such bids, or if no bids are received, the city council may determine and declare that, in its opinion based on estimates submitted by the city manager, the public works construction may be performed better or more economically by the city with its own employees, and after the adoption of a motion to this effect by the affirmative votes of at least two-thirds (⅔) of the members of the city council, the council may proceed to have said work done in the manner stated without further observance of the provision of this article.

(Ord. No. NS-2502, § 4, 7-1-02; Ord. No. NS-3041, § 7, 6-6-23)

The city council may choose to undertake a public works project utilizing alternative project delivery methods which may include but not be limited to the construction manager, or design-build-bid or any other project delivery method which is appropriate to the type of public works project and conforms to applicable federal, state and charter requirements. The executive director of public works is authorized and directed to promulgate and maintain administrative procedures for the management of all public works projects including alternative delivery methods. Such procedures shall conform to any applicable regulations issued pursuant to subsection 2-803(e) which relate to the award of contracts for professional services.

(Ord. No. NS-2502, § 4, 7-1-02)

(a) In the event that any person who has contracted with the city for the provision of labor and materials for public works construction violates any covenant or condition of said contract, then, in addition to any other right or remedy to which the city may be entitled, such person may be disqualified from bidding on city contracts for public works construction for a period of up to one year, in accordance with the provisions of this section.

(b) No person shall be disqualified under this section without having first been given notice of the charges and an opportunity to be heard on the issues. Unless an alternative hearing procedure is directed by the city council, the notice of charges and time and place of hearing shall be given to the person by the director of public works, based upon a preliminary determination that a violation calling for disqualification has occurred, and the said director, or his/her authorized representative, shall conduct such hearing and determine whether and for how long such person shall be disqualified. Any determination of disqualification may be appealed to the city council pursuant to chapter 3 of this Code. In determining whether a person should be disqualified and, if so, the duration of the disqualifications, the hearing officer and the city council shall consider the following:

(1) Whether any violation of the contract did in fact occur.

(2) Whether the violation caused any significant detriment to the city or to the public interest in terms of additional expense, delay in completion of the work, or noncompliance with public policy obligations.

(3) Whether the acts or omissions that constituted or resulted in the violation were marked by willful or reckless disregard for the duty to comply with the contract.

(c) No person disqualified under this section, and no person who lists any person disqualified as a subcontractor on any bid, shall be considered the best bidder on any contract for public works construction to be awarded by the city within the period of the disqualification.

(Ord. No. NS-2502, § 4, 7-1-02)

Except on locally funded public works projects of twenty-five thousand dollars ($25,000.00) or less when the project is for construction work, or fifteen thousand dollars ($15,000.00) or less when the project is for alteration, demolition, repair or maintenance work, all contractors performing work on a City public works project shall be subject to California prevailing wage law, codified at California Labor Code Section 1782, et seq., as it may be amended from time to time. The only limitation on this requirement shall be in the event federal funding requirements supersede state prevailing wage laws.

(Ord. No. NS-2875, § 2, 12-16-14)