Today's Law As Amended

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AB-271 Santa Clara Valley Water District: contracts: best value procurement.(2021-2022)

As Amends the Law Today
As Amends the Law on Nov 18, 2021

 The Legislature finds and declares all of the following:
(a) The Leroy Anderson Dam and Reservoir, owned by the Santa Clara Valley Water District and located in the County of Santa Clara, is the largest reservoir in the county with a capacity of 89,278 acre-feet, is a critical part of the region’s water supply system, and provides incidental flood protection, as well as environmental and recreational benefits.
(b) A breach of the Leroy Anderson Dam at full capacity could have catastrophic consequences, including inundation of a land area extending more than 30 miles northwest to San Francisco Bay, including the Cities of Milpitas, San Jose, Santa Clara, and Sunnyvale, and more than 40 miles southeast to Monterey Bay, including the Cities of Gilroy, Morgan Hill, and Watsonville. This area includes a significant part of the region known as Silicon Valley and is home to thousands of job-creating businesses that drive the regional, state, and national economies.
(c) The dam has been determined by the Santa Clara Valley Water District, the Department of Water Resources Division of Safety of Dams, and the Federal Energy Regulatory Commission to be at risk of an uncontrolled release of water due to a seismic event. On February 20, 2020, the Federal Energy Regulatory Commission directed the Santa Clara Valley Water District to maintain the reservoir at a level that is equivalent to 35 percent of the reservoir’s capacity, begin draining the reservoir to deadpool by October 1, 2020, and expedite reconstruction and improvement of the dam outlet structure to begin as soon as feasible to allow the deadpool to be maintained. The Santa Clara Valley Water District is in the process of complying with the federal order and began the draining of the reservoir on October 1, 2020, and is moving expeditiously to construct a new dam outlet structure.
(d) Built in 1950 to the seismic and dam safety standards of the day, the dam would not withstand the largest likely earthquake, known as the maximum credible earthquake, on the nearby Calaveras and Coyote Creek faults. A 2008 seismic stability evaluation identified potential embankment instability as a result of seismic shaking and liquefaction. In 2012, and again in 2020, voters in the County of Santa Clara approved parcel taxes to pay for the initiation of the Anderson Dam Seismic Retrofit Project and pay for a portion of the overall project costs. By 2016, findings from the geotechnical and geologic investigations performed during the project’s design phase led to the conclusion that a more extensive dam retrofit than had originally been envisioned would have to be performed, causing a necessary delay and redesign of the project.
(e) In February 2017, an atmospheric river event, which conveyed a series of wet storms to the region, resulted in flows over the dam’s spillway that, together with heavy flows from surrounding waterways, eventually exceeded the capacity of Coyote Creek. The creek flooded homes and businesses in economically diverse neighborhoods in San Jose, including disadvantaged communities and communities of color, requiring the evacuation of 14,000 people. The dam’s outlet, used to draw down the reservoir in an emergency, is too small by modern standards, and in advance of the 2017 storms, the outlet had been releasing as much water as possible for more than a month.
(f) The Santa Clara Valley Water District’s Anderson Dam Seismic Retrofit Project will remove and replace the dam. It will be constructed to modern seismic and dam safety standards, including increased capacities for the dam’s spillway and outlet to allow a rapid, controlled drawdown in an emergency and to enhance incidental flood protection.
(g) The Anderson Dam Seismic Retrofit Project is complex and must be evaluated under both state and federal environmental laws. The independent Board of Consultants, convened pursuant to the Federal Energy Regulatory Commission process, has recommended the “best value” method for awarding the construction contracts for the Anderson Dam Seismic Retrofit Project due to its complex design, delivery, and installation.
(h) Authorizing the Anderson Dam Seismic Retrofit Project for the “best value” method of contract award, similar to other major surface storage projects, is in keeping with construction industry practices and is prudent for a project of this scale and importance.

SEC. 2.

 Section 21163 is added to the Public Contract Code, to read:

 (a) As used in this section:
(1) (A) “Anderson Dam project” or “project” means any activity or work of construction to retrofit, repair, replace, or improve the safety of the Leroy Anderson Dam and Reservoir, owned by the Santa Clara Valley Water District and located in the County of Santa Clara, including any upstream or downstream construction, improvements, changes in operational activities, and flood protection measures that may be required to implement that activity or work.
(B) The “Anderson Dam project” or “project” includes any avoidance, minimization, or mitigation measures, including the Coyote Creek-related Phase 1 measures of the Fish and Aquatic Habitat Collaborative Effort, as described in the settlement agreement, determined to be appropriate by the district, in consultation with state and federal agencies identified as “responsible agencies” or “trustee agencies” pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code.
(2) “Best value” means a procurement process whereby the selected bidder may be selected on the basis of objective criteria for evaluating the qualifications of bidders with the resulting selection representing the best combination of price and qualifications.
(3) “Best value contract” means a competitively bid contract entered into pursuant to this section.
(4) “Best value contractor” means a properly licensed person, firm, or corporation that submits a bid for, or is awarded, a best value contract.
(5) “District” means the Santa Clara Valley Water District.
(6) “Project labor agreement” has the same meaning as in paragraph (1) of subdivision (b) of Section 2500.
(7) “Settlement agreement” means the agreement entitled “Settlement Agreement Regarding Water Rights of the Santa Clara Valley Water District on Coyote, Guadalupe, and Stevens Creeks” initialed on May 27, 2003, by the district, the United States Department of the Interior, United States Fish and Wildlife Service, the United States Department of Commerce, National Marine Fisheries Service, the California Department of Fish and Game, the Guadalupe-Coyote Resource Conservation District, Trout Unlimited, the Pacific Coast Federation of Fishermen’s Associations, and California Trout, Incorporated.
(b) Upon the approval of the board, the district may award contracts on a best value basis for any work for the Anderson Dam project.
(c) If the board elects to award a contract on a best value basis pursuant to the authorization in subdivision (b), the district shall comply with all of the following:
(1) The district shall prepare a set of documents setting forth the scope and estimated price of the project. The documents may include, but need not be limited to, the size, type, and desired design character of the project, performance specifications covering the quality of materials, equipment, workmanship, preliminary plans or layouts, or any other information deemed necessary to adequately describe the district’s needs. The performance specifications and any plans shall be prepared by a design professional who is duly licensed and registered in California.
(2) The district shall prepare and issue a request for qualifications in order to prequalify or short-list the entities, including subcontractors and suppliers, whose bids shall be evaluated for final selection. The request for qualifications shall include, but need not be limited to, all of the following elements:
(A) Identification of the basic scope and needs of the project or contract, the expected cost range, the methodology that will be used by the district to evaluate bids, the procedure for final selection of the bidder, and any other information deemed necessary by the district to inform interested parties of the contracting opportunity.
(B) Significant factors that the district reasonably expects to consider in evaluating qualifications, including technical design-related expertise, construction expertise, acceptable safety records, and all other non-price-related factors.
(C) A standard template request for statements of qualifications prepared by the district. In preparing the standard template, the district may consult with the construction industry, the building trades and surety industry, and other local agencies with experience awarding a contract on a best value basis. The template shall require all of the following information:
(i) If the bidder is a privately held corporation, limited liability company, partnership, or joint venture, composed of privately held entities, 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 project.
(ii) Evidence that the members of the contracting 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 project, and a financial statement that ensures that the bidder has the capacity to complete the project.
(iii) The licenses, registration, and credentials required for the project, including, but not limited to, information on the revocation or suspension of any license, credential, or registration.
(iv) Evidence that establishes that the bidder has the capacity to obtain all required payment and performance bonding, liability insurance, and errors and omissions insurance.
(v) Information concerning workers’ compensation experience history and a worker safety program.
(vi) An acceptable safety record. “Safety record” means the prior history concerning the safe performance of construction contracts. The criteria used to evaluate a bidder’s safety record shall include, at a minimum, its experience modification rate for the most recent three-year period, and its average total recordable injury or illness rate and average lost work rate for the most recent three-year period.
(vii) The information required under this subparagraph shall be certified under penalty of perjury by the bidder and its general partners or joint venture members.
(3) Bids shall be evaluated by using only the criteria and selection procedures specifically identified in the procurement process documents, including the request for qualifications, as specified in paragraphs (1) and (2), and the price.
(d) (1) An Anderson Dam project contractor shall not be prequalified, shortlisted, or awarded a contract, regardless of whether the best value process is used, unless the contractor provides an enforceable commitment to the district that the contractor and its subcontractors at every tier will use a skilled and trained workforce to perform all work on the project or contract that falls within an apprenticeable occupation in the building and construction trades, in accordance with Chapter 2.9 (commencing with Section 2600) of Part 1.
(2) Paragraph (1) shall not apply if either of the following requirements are met:
(A) The district has entered into a project labor agreement that will bind all contractors and subcontractors performing work on the project or contract to use a skilled and trained workforce, and the contractor agrees to be bound by that project labor agreement.
(B) The contractor has entered into a project labor agreement that will bind the contractor and all its subcontractors at every tier performing the project or contract to use a skilled and trained workforce.
SEC. 3.
  The Legislature finds and declares that a special statute is necessary and that a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the findings set forth in Section 1 of this act.
SEC. 4.
  No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.