Alternative Procedures in Public Contract Bidding

The Public Contract Code, in Division 2, Part 3, Chapter 2, Article 3 deals with the bidding of public contracts and alternative procedures that can be used. Section 22030 states that Article 3 applies only to a public agency whose governing board has by resolution elected to become subject to the uniform construction cost accounting procedures and which has notified the Controller of that election.

Section 22031 does not prohibit a board of supervisors or a county road commissioner from utilizing, as an alternative to the procedures set forth in this article, the procedures set forth in Article 25 (commencing with Section 20390) of Chapter 1 for specified maintenance and emergency work, or new road construction and road reconstruction. Any county board of supervisors or county road commissioner must publicly declare its intention to use this authority prior to commencing work. The public declaration may be on a project-by-project basis, via a list of anticipated projects for the fiscal year, or via a list that may be included in the county’s annual budget.

Section 22032 specifies that public projects of $60,000 or less may be performed by the employees of a public agency by force account, by negotiated contract, or by purchase order. Public projects of $200,000 or less may be let to contract by informal procedures as set forth in this article. And, public projects of more than $200,000 must be let to contract by formal bidding procedure, with specified exceptions.

Section 22033 makes it unlawful to split or separate into smaller work orders or projects any project for the purpose of evading the provisions of this article requiring work to be done by contract after competitive bidding.

Section 22034 requires each public agency that elects to become subject to the uniform construction accounting procedures to enact an informal bidding ordinance to govern the selection of contractors to perform public projects. In addition, the ordinance is required to include four specified provisions.

Section 22035 provides that, in cases of emergency when repair or replacements are necessary, the governing body may proceed at once to replace or repair any public facility without adopting plans, specifications, strain sheets, or working details, or giving notice for bids to let contracts.

Section 22035.5 requires, in counties that are under court order to relieve justice facility overcrowding, specified procedures and restrictions apply to all contracts issued.

Section 22036 requires the commission to determine, on a county-by-county basis, the appropriate construction trade journals which receive mailed, faxed, or emailed notice of all informal and formal construction contracts being bid for work within the specified county.

Section 22037 requires a notice inviting formal bids to state the time and place for the receiving and opening of sealed bids and distinctly describe the project. The notice is required to be published at least 14 calendar days before the date of opening the bids in a newspaper of general circulation, printed and published in the jurisdiction of the public agency.

Section 22038 authorizes the public agency to reject any bids presented, if the agency, prior to rejecting all bids and declaring that the project can be more economically performed by employees of the agency, furnishes a written notice to an apparent low bidder. The notice has to inform the bidder of the agency’s intention to reject the bid and be mailed at least two business days prior to the hearing at which the agency intends to reject the bid.

In addition, if after the first invitation of bids all bids are rejected, after reevaluating its cost estimates of the project, the public agency has two specified options for proceedings.

Section 22039 requires the governing body of the participating public agency or its designated representative to adopt plans, specifications, and working details for all public projects exceeding the amount specified in law.

Section 22040 allows a person to examine the plans, specifications, or working details, adopted by the public agency for any project.

Section 22041 specifies that this article does not apply to the construction of any public building used for facilities of juvenile forestry camps or juvenile homes, ranches, or camps, if a major portion of the construction work is to be performed by wards of the juvenile court assigned to those camps, ranches, or homes.

Section 22042 requires the commission to review the accounting procedures of any participating public agency where an interested party presents evidence that the work undertaken by the public agency falls within any of the three specified categories.

Section 22042.5 requires the commission to review practices of any participating public agency where an interested party presents evidence that the public agency is not in compliance with specifies laws.

Section 22043 requires a request for commission review to be in writing, sent by certified or registered mail received by the commission postmarked no later than eight business days from the date the public agency has rejected all bids. The commission is required to commence its review immediately and conclude within the specified number of days from the receipt of the request for commission review.

Section 22044 requires the commission to prepare written findings, which must be presented to the public agency within 30 calendar days of formal commission review. If the commission finds that the provisions of this chapter were not complied with by the public agency, the specified steps must be implemented by that agency. In addition, the public agency is required to notify the commission in writing, within 90 days of receipt of written notice of the findings, of the public agency’s best efforts to comply.

Section 22044.5 provides that, if the commission makes a finding on three separate occasions within a 10-year period that the work undertaken by a public agency falls within any of the categories described in law, then the commission is required to notify the public agency of that finding in writing by certified mail and the public agency cannot use the bidding procedures provided by this article for five years from the date of the commission’s findings.