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AB-1365 Public contracts: clean concrete.(2021-2022)

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Date Published: 03/25/2021 09:00 PM
AB1365:v98#DOCUMENT

Amended  IN  Assembly  March 25, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1365


Introduced by Assembly Member Bonta

February 19, 2021


An act to add Section 3503.1 to the Public Contract Code, relating to public contracts.


LEGISLATIVE COUNSEL'S DIGEST


AB 1365, as amended, Bonta. Public contracts: clean concrete.
The State Contract Act governs the bidding and award of public works contracts by specific state departments and requires an awarding department, before entering into any contract for a project, to prepare full, complete, and accurate plans and specifications and estimates of cost. The Buy Clean California Act, requires, among other things, the Department of General Services (department) to establish a maximum acceptable global warming potential for each category of eligible materials, as specified. That law requires an awarding authority, as defined, to require a successful bidder to submit a current Environmental Product Declaration developed in accordance with specified standards, for that type of product.
This bill would require the department, on or before January 1, 2024, to establish and publish a maximum acceptable global warming potential for concrete, as specified. The bill would, beginning January 1, 2022, require an awarding authority to require a winning bidder for an eligible project to submit an Environmental Product Declaration developed in accordance with specified standards prior to installation of any concrete products.
This bill would, beginning January 1, 2023, require an awarding authority letting contracts involving the purchase of 50 cubic yards or more of concrete to apply a performance discount rate, as specified, for the purpose of assessing and selecting bids. The performance discount rate would apply an artificial price discount, not to exceed 5%, to bids with a global warming potential within specified parameters.
Existing law, the Buy Clean California Act, requires, among other things, the Department of General Services to establish and publish in the State Contracting Manual or a department management memorandum, or make available on the department’s internet website, a maximum acceptable global warming potential for each category of eligible materials, as defined, in accordance with certain requirements.

This bill would state the intent of the Legislature to enact future legislation to incorporate concrete into the state’s buy clean framework and take other specified actions.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

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

3503.1.
 (a) For purposes of this section all of the following definitions apply:
(1) “Concrete” means structural concrete products, specifically ready-mix, shotcrete, precast, and concrete masonry units.
(2) “Environmental Product Declaration” means a supply chain specific Type III environmental product declaration as defined by the International Organization for Standardization (ISO) standard 14025 or similarly robust life-cycle assessment methods that have uniform standards in data collection consistent with the ISO standard 14025, industry acceptance, and integrity.
(A) Environmental Product Declarations shall follow nationally or internationally recognized rules for producing Environmental Product Declarations for the subject material, follow standards established for life-cycle analysis material reporting of global warming potentials, and conform to the ISO standards 14025, 14040, 14044, and 21930.
(B) Beginning January 1, 2026, Environmental Product Declarations must report actual data quality assessments including variability in facility, product, and upstream data for key processes.
(3) “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.
(4) “Supply chain specific” means an Environmental Product Declaration that includes supply chain specific data for production processes that contribute to 80 percent or more of a product’s cradle-to-gate global warming potential, as defined in ISO standard 21930, and reports the overall percentage of supply chain specific data included.
(b) Beginning January 1, 2022, to the extent practicable, an awarding authority shall require that specifications for a bid or proposal for a project contract only include performance-based specifications for concrete used as a structural material.
(c) (1)  Beginning January 1, 2022, an awarding authority shall require the successful bidder for a contract for an eligible project to submit current Environmental Product Declarations for concrete products before they are installed in the project.
(2) The department shall publish a publicly accessible database with projects anonymized for successful bidders to report the data contained in Environmental Product Declarations submitted pursuant to this subdivision. The department may contract with a qualified third party to create and maintain the database.
(d) Beginning January 1, 2023, when letting contracts for the purchase of 50 cubic yards or more of concrete for use in an eligible project, an awarding authority shall, for the purposes of bid assessment and selection, apply a performance discount rate. The performance discount rate shall provide an artificial price discount not exceeding 5 percent to offered bids with a global warming potential below the 20th percentile of the range of global warming potential data collected from Environmental Product Declarations submitted from the previous year pursuant to subdivision (c). Global warming potential values for concrete products shall be submitted in the form of Environmental Product Declarations that meet the requirements of paragraphs (2) and (4) of subdivision (a).
(1) For bids that include multiple concrete mixes, the global warming potential of all mixes shall be proportionally weighted into a single global warming potential score to serve as the basis for assessment and selection.
(2) Contractors for eligible projects that subcontract services from concrete providers shall require subcontract bids to adhere to the same rules and standards.
(3) The department shall issue guidelines to assist awarding authorities and contracting personnel in implementing this subdivision.
(e) (1) On or before January 1, 2024, the department shall establish, and publish in the State Contracting Manual or a department management memorandum, or make available on the department’s internet website, the maximum acceptable global warming potential for concrete at the industry average of supply chain specific global warming potential emissions. The department shall determine the industry average for concrete by consulting the Environmental Product Declarations submitted pursuant to subdivision (c).
(2) On or before January 1, 2027, and every three years thereafter, the department shall review the maximum acceptable global warming potential for concrete established pursuant to paragraph (1) and adjust that number downward to reflect industry improvements if the department determines that the industry average has changed. At that time, the department shall update the State Contracting Manual, department management memorandum, or information available on the department’s internet website, to reflect that adjustment.

SECTION 1.

(a)The Legislature finds and declares all of the following:

(1)Climate change is an urgent threat to the health and well-being of California's residents and economy.

(2)California is a leader on climate change action and has put in place numerous leading policies to reduce greenhouse gas emissions from the power sector, vehicles and fuels, buildings, and other sectors. In many cases, these policies have helped to catalyze transformative market conditions on a global scale.

(3)One of those leading policies, the Buy Clean California Act, can serve as a similarly transformative policy for materials used in our built environment, including through public procurement.

(4)Concrete is the most widely used building material in the world and responsible for over 7 percent of global greenhouse gas emissions, primarily from its cement content.

(5)Concrete is not currently included in California’s buy clean framework, but offers promising potential as a low carbon, and potentially even negative-carbon, building material.

(6)California state agencies are the largest consumers of concrete in the state, and operate under multiple executive orders and statutory frameworks directing them to reduce carbon emissions associated with state facilities and operations.

(b)Thus, it is the intent of the Legislature to enact future legislation to incorporate concrete into the state’s buy clean framework and to do all of the following:

(1)Develop additional policies that standardize, strengthen and simplify emissions accounting through environmental product declarations.

(2)Incorporate performance-based outcomes into product specifications.

(3)Support continual innovation in the sector and emissions reductions through procurement and incentives.

(4)Direct state agencies to evaluate other actions that support the production and use of low-carbon concrete.