Today's Law As Amended


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SB-778 Buy Clean California Act: Environmental Product Declarations: concrete.(2021-2022)



As Amends the Law Today


SECTION 1.

 Section 3501 of the Public Contract Code is amended to read:

3501.
 For purposes of this section: Unless otherwise provided, the following definitions govern the construction of this article: 
(a) “Awarding authority” means any of the following:
(1) A state agency for a contract for a public works project that is subject to the State Contract Act (Chapter 1 (commencing with Section 10100) of Part 2).
(2) The Regents of the University of California for a contract for a public works project that is subject to Chapter 2.1 (commencing with Section 10500) of Part 2.
(3) The Trustees of the California State University for a contract for a public works project that is subject to the California State University Contract Law (Chapter 2.5 (commencing with Section 10700) of Part 2).
(b) “Department” means the Department of General Services.
(c) “Eligible materials” means any of the following:
(1) Carbon steel rebar.
(2) Flat glass.
(3) Mineral wool board insulation.
(4) Structural steel.
(d) “Eligible project” means a project that the awarding authority determines will require eligible materials.
(e) “Greenhouse gas emissions” has the same meaning as defined  means emissions of a “greenhouse gas” as set forth  in subdivision (g) of Section 38505 of the Health and Safety Code.

SEC. 2.

 Section 3503.1 is added to the Public Contract Code, to read:

3503.1.
 (a) For purposes of this section, the following definitions apply:
(1) “Breakthrough technology” means a technology, method, or product that has the potential to significantly reduce the GWP of concrete once fully commercialized and implemented, but is not yet widely adopted in the market.
(2) “Breakthrough technology discount” means a discount that is applied to one or more bids for an eligible project that incorporates a qualified breakthrough technology.
(3) “CO2e” has the same meaning as “carbon dioxide equivalent” set forth in subdivision (c) of Section 38505 of the Health and Safety Code.
(4) “Concrete” means a structural concrete product, including ready-mix, shotcrete, precast, and concrete masonry units.
(5) “Delivery emissions” means the product of all of the following:
(A) The distance in miles travelled by all concrete mixer trucks or other delivery vehicles used to transport the concrete from a production facility to a job site, including return travel.
(B) The volume of fuel used per mile travelled by all concrete mixer trucks or other delivery vehicles used to transport the concrete.
(C) The CO2e per volume of fuel used by all concrete mixer trucks or other delivery vehicles used to transport concrete, based on the carbon intensity of the fuel used as specified by the Low Carbon Fuel Standard regulations (Subarticle 7 (commencing with Section 95480) of Title 17 of the California Code of Regulations).
(6) “Eligible project” means either of the following:
(A) A project for which bids are requested by an awarding authority before January 1, 2025, that requires 500 cubic yards or more or 1,000 metric tons or more of concrete.
(B) A project for which bids are requested by an awarding authority on or after January 1, 2025, that requires 50 cubic yards or more or 100 metric tons or more of concrete.
(7) (A) “Environmental Product Declaration” means a Type III environmental product declaration, as defined by the International Organization for Standardization (ISO) standard 14025 or a similarly robust life-cycle assessment method that has uniform standards in data collection consistent with ISO standard 14025, industry acceptance, and integrity.
(B) An Environmental Product Declaration shall follow nationally or internationally recognized rules for producing Environmental Product Declarations for the subject material, shall follow standards established for life-cycle analysis material reporting of global warming potentials, and shall conform to ISO standards 14025, 14040, 14044, and 21930.
(C) An Environmental Product Declaration shall make use of supply chain-specific data for input materials whenever this data is available.
(D) For precast concrete products that include materials other than concrete, an Environmental Product Declaration shall only be required for the concrete used in making the precast product.
(E) The State Air Resources Board, in an open public process, may establish additional requirements, if feasible and based on widely available data, for an Environmental Product Declaration required by and submitted pursuant to this section to ensure transparency and a fair comparison of the total concrete production CO2e among bidders. These additional requirements may include, but are not limited to, limiting the use of default values or industry averages and requiring actual data quality assessments, including variability in facility, product, and upstream data for key processes.
(8) “Global warming potential” or “GWP” means the CO2e of concrete as reported in an Environmental Product Declaration.
(9) “Low-embodied carbon discount” means a discount that is applied to one or more bids for an eligible project and that is based on the GWP and delivery emissions of each bid relative to all qualified bids.
(10) “Performance-based specifications” means a contract provision that requires that a structural material achieve specified performance outcomes from the use of the structural material, including, but not limited to, outcomes related to the strength, durability, permeability, or other attributes related to the function of the building material for applied uses, as opposed to requiring that a structural material be produced using a specified manufacturing process, design features, technologies, or proportions of constituent materials.
(11) “Performance class” means a classification applied to a concrete product based on performance criteria, including, but not limited to, its compressive strength and the type of structural concrete product, in order to group together concrete products with similar performance attributes.
(12) “Project region” means the Department of Transportation district in which an eligible project is located.
(13) “Total concrete CO2e” means the sum of the total concrete production CO2e and delivery emissions.
(14) “Total concrete production CO2e” means the CO2e for all concrete products included in a bid. The total concrete production CO2e shall be calculated as the sum of the GWP for each concrete product multiplied by the anticipated amount of that concrete product that will be delivered for the project.
(b) Beginning January 1, 2022, to the extent practicable, an awarding authority shall use only performance-based specifications to describe the requirements for concrete to be used as a structural material when requesting a bid or proposal for a project contract.
(c) Beginning July 1, 2022, an awarding authority shall require a successful bidder for a contract for an eligible project to submit a current Environmental Product Declaration for each concrete product before the product is installed in the project. Until July 1, 2023, an awarding authority may allow a successful bidder up to 90 days after product installation to submit a current Environmental Product Declaration.
(d) On or before January 1, 2023, the department, in consultation with the Department of Transportation, shall establish performance classes for concrete products with similar performance attributes.
(e) (1) Beginning January 1, 2023, when letting contracts that include concrete for use in an eligible project, an awarding authority shall require all bids to include the GWP for each concrete product that will be delivered, the total concrete production CO2e for all concrete products included in the bid, and an estimate of the delivery emissions from transporting the concrete.
(2) Beginning January 1, 2024, a bid that includes a concrete product with a GWP higher than the maximum acceptable GWP for the concrete product’s performance class and project region established pursuant to subdivision (f) shall be disqualified.
(3) (A) For purposes of bid assessment and selection, an awarding authority shall apply a low-embodied carbon discount of up to 5 percent of a bid’s concrete price to a bid with low total concrete CO2e in comparison to other qualified bids for an eligible project.
(B) The department, in consultation with the State Air Resources Board, shall establish rules and guidelines that include both of the following:
(i) A method for determining the total concrete CO2e expected from the concrete for each bid.
(ii) Rules for how specific discounts shall be determined and applied to a bid based on the total concrete CO2e of each bid relative to other qualified bids and relative to the average total concrete CO2e among all qualified bids. The rules developed by the department pursuant to this clause shall include all of the following requirements:
(I) A bid’s total concrete CO2e shall be below the average total concrete CO2e of all qualified bids to receive any discount.
(II) A bid’s total concrete CO2e shall be at least 10 percent below the average total concrete CO2e of all qualified bids to receive the maximum percentage discount.
(III) The bid with the lowest total concrete CO2e shall receive the largest percentage discount among all bids, while proportionally smaller percentage discounts may be applied to some or all of the other bids with total concrete CO2e below the average total concrete CO2e of all qualified bids.
(4) (A) An awarding authority shall additionally apply a breakthrough technology discount of up to 3 percent of a bid’s concrete price to a bid that uses a qualified breakthrough technology.
(B) The department shall establish rules and guidelines pursuant to which specific discounts shall be determined and applied to a bid based on how significant the use of one or more qualified breakthrough technologies is in the concrete to be delivered.
(C) On or before January 1, 2023, the State Air Resources Board shall establish criteria for qualifying a technology, method, or product as a breakthrough technology and shall maintain an annually updated directory of qualified breakthrough technologies on its internet website.
(5) (A) (i) A successful bidder shall comply with this subdivision by demonstrating that the GWP in the Environmental Product Declarations submitted for each concrete product pursuant to subdivision (c) results in a total concrete production CO2e that is less than or equal to the total concrete production CO2e of its bid and by providing any other documentation that the department may require to verify consistency with the delivery emissions provided in the bid.
(ii) For the purpose of determining compliance with this subdivision, the total concrete production CO2e shall be calculated using the same anticipated concrete product volumes that were used at the time of bidding so that changes in actual project volumes do not impact compliance verification.
(B) (i) Failure to comply with subparagraph (A) shall result in a payment deduction. The deduction shall consider the difference between the total concrete CO2e of the bid and the actual total concrete CO2e, including material differences in the GWP of the installed products and delivery emissions.
(ii) An awarding authority may consider whether the bidder was unable to comply with subparagraph (A) due to a disruption in the supply chain for one or more constituent materials that the bidder could neither reasonably foresee nor remedy in a timely fashion.
(6) The department shall issue guidelines to assist awarding authorities and contracting personnel in implementing this subdivision.
(f) (1) (A) On or before January 1, 2024, the State Air Resources Board shall establish, and the department shall publish in the State Contracting Manual, in a department management memorandum, or on the department’s internet website, the maximum acceptable GWP for concrete at the industry average of GWP for concrete within each project region and performance class.
(B) The State Air Resources Board shall determine the industry average GWP for concrete within each project region and performance class by consulting the Environmental Product Declarations submitted pursuant to subdivision (c), the GWP values in competitive bids submitted pursuant to subdivision (e), and other relevant data.
(2) To ensure that the averages used to establish the maximum acceptable GWP values for concrete products reflect the range of reasonably cost-competitive products available in the region, the State Air Resources Board may exclude from its analysis of average GWP values outlier bids submitted pursuant to subdivision (e). For purposes of this paragraph, an “outlier bid” means either of the following:
(A) A bid that includes a concrete price that is at least 20 percent higher than the concrete price in the successful bid.
(B) A bid that the State Air Resources Board otherwise deems uncompetitive.
(3) At least once every three years, the State Air Resources Board shall update the maximum acceptable GWP for concrete within each project region and performance class by following the process established in paragraph (1) and considering data obtained since the prior update. The department shall update the State Contracting Manual, department management memorandum, or department internet website to reflect the adjustments made by the State Air Resources Board.
(g) (1) Beginning January 1, 2024, if a contract for an eligible project is awarded without specifying during the bidding process the amount or GWP for each concrete product that will be delivered pursuant to subdivision (e), the successful bidder shall still comply with the maximum acceptable GWP established pursuant to subdivision (f) for each concrete product that is used in the project.
(2) A successful bidder shall demonstrate compliance with this subdivision by submitting, pursuant to subdivision (c), for each concrete product an Environmental Product Declaration that includes GWP values that are less than or equal to the maximum acceptable GWP established for each concrete product’s project region and performance class pursuant to subdivision (f).
(3) (A) Failure to comply with this subdivision shall result in a payment deduction. The deduction shall consider the total excess CO2e in the installed concrete, which shall be calculated as the difference between the GWP of the concrete installed and the maximum acceptable GWP for each concrete product’s project region and performance class, multiplied by the total amount of each concrete product installed.
(B) An awarding authority may consider whether the bidder was unable to comply with this subdivision due to a disruption in the supply chain for one or more constituent materials that the successful bidder could neither reasonably foresee nor remedy in a timely fashion.
(h) The department shall maintain a publicly accessible database with projects anonymized to report the GWP data contained in all bids and Environmental Product Declarations submitted pursuant to subdivisions (c) and (e). The department may contract with a qualified third party to create and maintain the database.
(i) This section does not apply to an eligible project if the awarding authority determines, upon written justification published on its internet website, that requiring concrete to meet the requirements of this section would be technically infeasible, would significantly delay project completion, or would result in only one producer being able to provide the concrete needed by the eligible project.
(j) This section does not apply if the awarding authority determines that an emergency exists, as defined in Section 1102, or that any of the circumstances described in subdivisions (a) to (d), inclusive, of Section 10122 exist.