Awarding of Public Contracts

Public Contract Code Division 2, Part 1, Chapter 6 addresses the awarding of contracts. Section 6100 requires a state agency, prior to awarding a contract for work to be performed by a contractor, to verify with the Contractors State License Board that the person seeking the contract is licensed in a classification appropriate to the work to be undertaken. Verification as required by this section need only be made once every two years with respect to the same contractor.

Section 6101 provides that a state agency is prohibited from awarding a public works or purchase contract to a bidder or contractor, nor can a bidder or contractor be eligible to bid for or receive a public works or purchase contract, who has, in the preceding five years, been convicted of violating a state or federal law respecting the employment of undocumented immigrants. The term “immigrant” is defined.

Section 6102 states that a contract that was entered into because of an act that would constitute a violation of a state or federal crime relating to bribery of a public official is voidable.

Section 6106 requires any state agency or department to this section in negotiating fees and executing a contract for professional consulting services of a private architectural, engineering, land surveying, environmental, or construction project management firm. Upon the completion of negotiations, the state and the private firm must proceed to execute a contract so that the contract may be completed by the state within 45 days.

Section 6106.5 defines the terms “state agency” and “contractor.” State agencies are required to include a provision in solicitations and in contracts, if the estimated amount to be retained exceeds $10,000, and the retention continues for a period of 60 days beyond the completion of phased services, to permit, upon written request and the expense of the contractor, the payment of retentions earned directly to a state- or federally chartered bank in this state, as the escrow agent. The contractor may direct the investment of the amount.

In addition, an escrow agreement used pursuant to this section is unenforceable unless it is substantially similar to the form set forth in this section. The names of the persons who are authorized to give written notice or to receive written notice on behalf of the owner and on behalf of the contractor in connection with these provisions are specified in a form contained in this section.

Section 6107 defines the term “California company.” When awarding contracts for construction, a state agency is required to grant a California company a reciprocal preference as against a nonresident contractor from any state that gives or requires a preference to be given contractors from that state on its public entity construction contracts.

If the contractor submitting the lowest responsive bid is not a California company and has its principal place of business in any state that gives or requires the giving of a preference on its public entity construction contracts to contractors from that state, and if a California company has also submitted a responsive bid, and, with the benefit of the reciprocal preference, the California company’s bid is equal to or less than the original lowest responsive bid, the public entity is required to award the contract to the California company at its submitted bid price.

Section 6108 requires every contract entered into by any state agency for the procurement or laundering of apparel, garments, or corresponding accessories, or the procurement of equipment, materials, or supplies, other than procurement related to a public works contract, to require that a contractor certify that no apparel, garments, corresponding accessories, equipment, materials, or supplies furnished to the state pursuant to the contract have been laundered or produced in whole or in part by sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor, or exploitation of children in sweatshop labor, or with the benefit of sweatshop labor, forced labor, convict labor, indentured labor under penal sanction, abusive forms of child labor, or exploitation of children in sweatshop labor. The contractor must agree to comply with this provision of the contract.

This section defines the terms “forced labor,” “abusive forms of child labor,” “exploitation of children in sweatshop labor,” “sweatshop labor,” “apparel, garments, or corresponding accessories,” “state agency” Contractors are required to ensure that their subcontractors comply in writing with the Sweatfree Code of Conduct. And, no state agency may enter into a contract with any contractor unless the contractor meets the twelve specified requirements.

Section 6109 prohibits a public entity from permitting a contractor or subcontractor who is ineligible to bid or work on, or be awarded, a public works project or perform work as a subcontractor on, a public works project. Every public works project must contain a provision prohibiting a contractor from performing work on a public works project with a subcontractor who is ineligible to perform work on the public works project. And, any contract on a public works project entered into between a contractor and a debarred subcontractor is void as a matter of law.

Section 6610 requires a notice inviting formal bids for projects by a public agency that include a requirement for any type of mandatory prebid conference, site visit, or meeting to include the time, date, and location of the mandatory prebid site visit, conference or meeting, and when and where project documents, including final plans and specifications are available. There are several exceptions provided.

Section 6611 allows the Department of General Services to use a negotiation process if the department finds that one or more of the four specified conditions exist. And, when it is in the best interests of the state, the department may negotiate amendments to the terms and conditions, including scope of work, of existing contracts for goods, services, information technology, and telecommunications, whether or not the original contract was the result of competition, on behalf of itself or another state agency.

An unsuccessful bidder does not have a right to protest the results of the negotiating process undertaken pursuant to this section. As a remedy, an unsuccessful bidder may file a petition for a writ of mandate. The Department of Technology may utilize the negotiation process for the purpose of procuring information technology and telecommunications goods and services on behalf of state departments and information technology projects.