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CHAPTER 6: PUBLIC WORKS CONTRACTING POLICIES AND PROCEDURES
Article Page I. GENERAL PROVISIONS.... 849 II. CONSTRUCTION CONTRACTING.... 873 III. PROFESSIONAL SERVICES CONTRACTING.... 903 IV. EXEMPTIONS FROM AND ALTERNATIVES TO COMPETITIVE BIDDING.... 917 V. VIOLATIONS OF ADMINISTRATIVE CODE CHAPTER 6; FALSE CLAIMS; PROCEDURES FOR DEBARMENT; MONETARY PENALTIES.... 939 ARTICLE I:
GENERAL PROVISIONSSec. 6.0. Scope of Chapter.
Sec. 6.1. Definitions.
Sec. 6.2. Departments or Commissions Empowered to Contract for Public Works or Related Professional Services.
Sec. 6.3. Contracting Powers and Procedure.
Sec. 6.4. Preference for Local Manufacturers and Industry; Recycled Content Materials.
Sec. 6.5. Compliance with Nondiscrimination Provisions.
Sec. 6.6. Federally-funded or State-funded Contracts.
Sec. 6.7. Void Contract.
Sec. 6.8. Severability.
Sec. 6.9. Subcontractor and Subconsultant Limitation of Rights.
SEC. 6.0. SCOPE OF CHAPTER.
Chapter 6 shall govern public work or improvement contracting policies and procedures, including the procurement of professional design, consulting and construction management services for public work projects.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99)
SEC. 6.1. DEFINITIONS.
(A) Advertisement For Bid. An Advertisement For Bid is a set of documents which includes without limitation the published advertisement for bids on a construction contract; the forms to be submitted with a bid, as required by the contracting department and the Human Rights Commission; the construction contract general and special conditions; and the plans and specifications for the public work or improvement.
(B) Award. For contracts in excess of the Threshold Amount as defined below, a contract is awarded by the City and County of San Francisco when the following events have occurred:
(1) For departments under the Mayor, (a) the Mayor or the Mayor's designee has approved the contract for award and (b) the department head has then issued an order of award;
(2) For departments with boards or commissions, (a) the department head has recommended to the board or commission concerned a contract for award and (b) such board or commission has then adopted a resolution awarding the contract.
For contracts less than or equal to the Threshold Amount as defined below, a contract is awarded when the department head either signs the contract or issues an order of award, whichever occurs first. Pursuant to Charter Section 3.105, all contract awards are subject to certification by the Controller as to the availability of funds.
(C) Bid. A sealed document submitted in response to an Advertisement For Bids. No bid shall be deemed accepted by the City and County of San Francisco until such time as the contract is awarded in accordance with this Chapter.
(D) Bidder. One who submits a bid in response to an Advertisement For Bids.
(E) Construction Manager. Any individual, firm, partnership, corporation, association, joint venture or other legal entity permitted by law to furnish construction management services to the City and County.
(F) Contract. For the purposes of this Chapter, a contract is an agreement in writing between the City and County of San Francisco and any party to perform professional design services, consultant services, construction management services or construction services relative to a public work or improvement. No contract shall be deemed awarded effective or binding on the City and County of San Francisco until such time as the requirements for award are met, as provided in this Chapter.
(G) Contractor. A party who contracts directly with the City and County of San Francisco to perform professional design services, consultant services, construction management services or construction services relevant to a public work or improvement. A contractor performing construction services may also be referred to as a "general contractor" or a "prime contractor."
(H) Prevailing Wage or Prevailing Rate of Wage. The prevailing wage, as used in this Chapter, is the highest general prevailing rate of wage plus "per diem wages" and wages paid for overtime and holiday work paid in private employment in the City and County of San Francisco for the various crafts and kinds of labor employed in the performance of any public work or improvement under this Chapter. "Per diem wages" are defined pursuant to Labor Code section 1773.1, as amended from time to time.
(I) Public Work or Improvement. A public work or public work or improvement, as used in this Chapter, is any erection, construction, renovation, alteration, improvement, demolition, excavation, installation, or repair of any public building, structure, infrastructure, bridge, road, street, park, dam, tunnel, utility or similar public facility performed by or for the City and County of San Francisco, the cost of which is to be paid wholly or partially out of moneys deposited in the treasury of the City and County.
(J) Responsible. A responsible bidder or contractor is one who (1) meets the qualifying criteria required for a particular project, including without limitation the expertise, experience, record of prior timely performance, license, resources, bonding and insurance capability necessary to perform the work under the contract and (2) at all times deals in good faith with the City and County and shall submit bids, estimates, invoices claims, requests for equitable adjustments, requests for change orders, requests for contract modifications or requests of any kind seeking compensation on a City contract only upon a good faith honest evaluation of the underlying circumstances and a good faith, honest calculation of the amount sought.
(K) Responsive. A responsive bid is one that complies with the requirements of the subject Advertisement For Bids without condition or qualification.
(L) Threshold Amount. The Threshold Amount, for the purposes of this Chapter, is $100,000. On January 1, 2005, and every five years thereafter, the Controller shall recalculate the Threshold Amount to reflect any proportional increase in the Urban Regional Consumer Price Index from January 1, 2000, rounded to the nearest $1,000.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 324-00, File No. 001919, App. 12/28/2000; Ord. 208-02, File No. 021221, App. 10/18/02)
SEC. 6.2. DEPARTMENTS OR COMMISSIONS EMPOWERED TO CONTRACT FOR PUBLIC WORKS OR RELATED PROFESSIONAL SERVICES.
Except as otherwise provided, the departments or commissions empowered on behalf of the City and County of San Francisco to contract for public works or improvements or professional services related to a public work or improvement are the Department of Public Works the Municipal Transportation Agency, and the Airport, Port, Public Utilities, Recreation and Park and Commissions. All other departments or commissions must procure construction or related professional services through the Department of Public Works.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 118-00, File No. 000478, App. 6/2/2000; Ord. 58-05, File No. 041571, App. 4/1/2005)
SEC. 6.3. CONTRACTING POWERS AND PROCEDURE.
(A) Public Work or Professional Service Contracts Less Than or Equal to the Threshold Amount. The department head may award any construction contract or professional services contract of less than or equal to the Threshold Amount. For such contracts, approval of the Mayor, commission or board concerned is not required.
(B) Public Work or Professional Service Contracts in Excess of the Threshold Amount.
(1) Departments under the Mayor. For departments under the Mayor, the Mayor or the Mayor's designee shall approve for award all public work and professional service contracts in excess of the Threshold Amount and the department head may then issue an order of award.
(2) Departments under Boards or Commissions. The department head shall recommend to the board or commission concerned the award of all public work and professional service contracts in excess of the Threshold Amount and such board or commission may then adopt a resolution awarding the contract.
(C) Certification Required. In accordance with Section 3.105 of the San Francisco Charter, all contract awards are subject to certification by the Controller as to the availability of funds.
(D) Execution of Contracts. Following all necessary approvals, orders or resolutions and execution by the contractor, the department head shall execute in duplicate all contracts, modifications and change orders.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99)
SEC. 6.4. PREFERENCE FOR LOCAL MANUFACTURERS AND INDUSTRY; RECYCLED CONTENT MATERIALS.
(a) Local preference. Whenever any preference in favor of local manufacturers or industry is provided by State law or ordinance or resolution of the Board of Supervisors, the same shall apply to contracts under this Chapter.
(b) Recycled Content Materials.
(1) Requirement. The department head or officer calling for bids shall specify recycled content materials, rather than virgin materials, to the maximum extent feasible in the Advertisement for Bids and plans for all contracts for public works or improvements.
(2) Definitions. For the limited purpose of this subsection, the following terms shall have the following meanings: (A) "feasible" means that recycled content materials meet the requirements of the California Building Code or other adopted standards or regulations for each of the materials and its intended use, are permitted to be used in the manner specified in the bid specifications under Federal, State and local law, are available within the project's time line, and are comparable in price to virgin materials, and (B) "recycled content materials" means a building component utilized in place of raw or virgin material that is either reclaimed for reuse from a prior structure or assembly, or a building material or component manufactured in part from waste materials and/or by-products recovered or diverted from solid waste, excluding those materials and by-products generated from, and commonly reused within, an original manufacturing process.
(3) Department of the Environment, Reports. Contract Awarding Authorities shall (a) consult with the Department of the Environment regarding available recycled content products that meet the needs of the department; and (b) include information on recycled content material used on public works contracts in the annual reporting to the Department of the Environment specified in the Environment Code.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; Ord. 53-07, File No. 070083, App. 3/23/2007)
SEC. 6.5. COMPLIANCE WITH NONDISCRIMINATION PROVISIONS.
(A) Application of Administrative Code Chapters 12B, 12C and 12D.A. Notwithstanding any other provision of this Administrative Code, all contracts awarded under this Chapter shall be awarded in accordance with the applicable requirements and procedures established in this Chapter and Chapters 12B, 12C and 12D.A.
Any contract for the construction, reconstruction or repair of public buildings, streets, utilities or other public work or improvement estimated to cost in excess of $10,000,000 shall be awarded in accordance with the provisions of this Chapter, except that the bid discount provisions of Chapter 12D.A shall not be applicable.
(B) Review by the Human Rights Commission. The Human Rights Commission (the "HRC") shall review all contracts under this Chapter to determine compliance with Chapter 12B, 12C and Chapter 12D.A of the San Francisco Administrative Code. Such review shall occur as soon as practicable, but prior to award of any such contract. Noncompliance shall be resolved in accordance with Administrative Code section 12D.A.16.
The HRC Director may waive the review of any contract subject to this Chapter. The HRC Director shall transmit a memorandum to the Human Rights Commission as soon as possible reporting such waiver. The Director's memorandum regarding the review waiver shall be a public document. The Commission may disapprove the Director's decision to waive review. The HRC's decision to disapprove must be made within 30 days of receipt of the Director's memorandum but in no event subsequent to the award of any contract. Failure to complete the review of any contract within 60 days of the date bids are received by the City shall constitute a waiver under this subsection.
Any duties required of the HRC under this section may be delegated by the Human Rights Commission to the HRC Director.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99)
SEC. 6.6. FEDERALLY-FUNDED OR STATE-FUNDED CONTRACTS.
(A) Time for Award. For all contracts that are fully or partially funded by Federal or State grants, loans or other governmental source, the department concerned shall not be required to award such contracts until 120 days from the date bids are received. Such time may only be extended prior to award of the contract and only upon (a) written agreement of the apparent responsible bidder with the lowest responsive bid; (b) approval by the Mayor or the Mayor's Designee or by resolution of the board or commission concerned; and (c) any necessary approvals of the Federal, State or other governmental funding agency.
(B) Contract Terms. In all contracts for the construction of any public work or improvement which involves the use of any funds furnished, given or loaned by the government of the United States or the State of California, all laws, rules and regulations of the government of the United States or the State of California or of any of its departments relative to the performance of such work and the conditions under which the work is to be performed, shall prevail over the requirements of this Chapter when such laws, rules or regulations are in conflict.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99)
SEC. 6.7. VOID CONTRACT.
Any public works or related professional services contract or subcontract that is not awarded in accordance with the requirements or which does not comply with the provisions of this Chapter shall be null and void; and no recovery shall be had thereon. Any officer, board or commission who shall sign, execute or approve such a contract shall be deemed guilty of misfeasance in office.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 324-00, File No. 001919, App. 12/28/2000)
SEC. 6.8. SEVERABILITY.
If any provision of this Chapter or any application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or application of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are declared to be severable.
(Added by Ord. 7-02, File No. 011675, App. 1/25/2002)
SEC. 6.9. SUBCONTRACTOR AND SUBCONSULTANT LIMITATION OF RIGHTS.
Except as otherwise expressly provided by law or contract, no subcontractor, subconsultant, or other person or business entity shall be a third-party beneficiary to any contract awarded in accordance with this Chapter, or to any modification or any resolution of any claim arising out of any such contract.
(Added by Ord. 58-05, File No. 041571, App. 4/1/2005)
[Sections 6.10 through 6.19 Reserved]
ARTICLE II:
CONSTRUCTION CONTRACTINGSec. 6.20. Public Work Contracts Generally.
Sec. 6.21. Requirements for Bids and Quotes.
Sec. 6.22. Public Work Construction Contract Terms and Working Conditions.
Sec. 6.23. Public Works to be Performed by the City; Bids by City Departments; Procedure Upon Rejection or Failure of Bids.
Sec. 6.24. Office of Labor Standards Enforcement; Prevailing Wage Requirements.
Sec. 6.25. Clean Construction.
SEC. 6.20. PUBLIC WORK CONTRACTS GENERALLY.
(A) Public Works In Excess of the Threshold Amount. Except as otherwise provided by the Charter or the Administrative Code, any public work or improvement estimated to cost more than the Threshold Amount shall be performed under contract awarded to the responsible bidder submitting the lowest responsive bid. To split or divide any public work or improvement into two or more contracts for the purpose of evading this section shall constitute official misconduct.
(B) Public Works Less Than or Equal to the Threshold Amount. Any public work or improvement estimated to cost less than or equal to the Threshold Amount may be performed (a) under contract or (b) by City and County employees. If the work is to be performed under contract, the department shall obtain not fewer than three quotes and shall award the contract to the responsible bidder offering the lowest quotation. If the department is unable to obtain three quotes, the award may be based on the quote or quotes received. The department administering the contract shall maintain records as to whom the request for quotations was directed and the quotations received. It is the policy of the Board of Supervisors for contracting departments to make every effort to eradicate prejudice and favoritism in the award of City contracts. In order to effectuate this policy, the department heads authorized to enter into construction contracts and their staff members shall collaborate with the HRC Director and HRC staff members periodically to create a list of responsible contractors qualified to perform various types of public work for projects estimated to be less than the Threshold Amount, making every effort to include qualified responsible MBE and WBE contractors on that list. The HRC shall be responsible for outreach efforts to make sure that MBE and WBE contractors are aware of the opportunity to be considered for the list. The contract awarding departments or commissions shall be responsible for evaluating and determining whether contractors are responsible and qualified to perform the various scopes of work. The department heads authorized to execute construction contracts shall report quarterly to the Board of Supervisors regarding MBE/WBE inclusion on the list of responsible and qualified contractors for public work contracts estimated to be less than or equal to the Threshold Amount, a description of the scope of work and price for each contract awarded under this section, the name of the contractor awarded the contract and whether the contract was awarded to an MBE or WBE contractor. Such reports shall be referred to a Board committee for public hearing.
(C) Estimates Required. For public works or improvements in excess of the Threshold Amount, no department head shall recommend a construction contract for or issue an order of award without preparing detailed program requirements and detailed estimates for the work to be performed. There shall be a separate accounting for each work or improvement, which accounting shall include all direct, indirect and supervisory elements of costs chargeable to such work or improvement. All such accounts shall be reported to the Controller and to either the Mayor or the Mayor's Designee or to the board or commission concerned, as appropriate.
(D) Comparison of Bids on Basis of Time of Completion. The department head concerned is authorized to compare bids on the basis of time of completion and any contract awarded in consideration, in whole or in part, of the relative time estimate of bidders for completion of the work, shall be subject to the provisions of this Chapter.
(E) Time for Award. Except when a contract is funded by Federal or State grants or funds, all public work contracts shall be awarded within ninety (90) days of the date the City and County receives the bids. Such time may only be extended prior to award of the contract and only upon written agreement of the apparent responsible bidder with the lowest responsive bid and approval by the department head.
(F) Prequalification. Department heads authorized to execute public work contracts may require that prospective bidders be prequalified to bid either on a specific project or on an identified group of projects. The procedure for prequalification is as follows:
(1) The department head shall issue a prequalification statement. The prequalification statement may, at the discretion of the department head, be issued in conformance with Public Contract Code section 20101 and/or the California Department of Industrial Relations Model Pre-Qualification Questionnaire. The department head may, at his/her own discretion, apply the Model guidelines for scorable questions and scoring as the basis for any prequalification. The department head may also, at his/her own discretion, issue the Model with additional questions or may use an alternative questionnaire. The department head responsible for the public work may include in any questionnaire a request for special qualifications, experience or expertise necessary to perform the project or projects for which the prequalification is sought. For any project-specific information required, the department shall set objective scoring criteria and incorporate the criteria into any scoring procedure.
(2) The department responsible for the public work shall advertise any prequalification questionnaire in the same manner required for bids, as set forth in Section 6.21 of this Chapter.
(3) Prequalification shall be valid for not more than two years following the date of initial prequalification.
(4) A prospective bidder may dispute a finding that he/she is not prequalified. The dispute and request for review must be in writing and received by the department within ten calendar days from the date the department issued notice of non-prequalification. The department shall then provide the prospective bidder with the basis for its finding and any supporting evidence used in the determination. The department shall give the prospective bidder the opportunity to rebut the evidence provided and to present evidence as to why the prospective bidder should be found qualified. If a bidder fails to avail itself of this dispute process, the department's finding shall become final without further notice. Failure to be prequalified shall not by itself preclude a prospective bidder from participating in other or future prequalifications.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 58-05, File No. 041571, App. 4/1/2005)
SEC. 6.21. REQUIREMENTS FOR BIDS AND QUOTES.
(A) Bids. All Advertisements For Bids for construction contracts in excess of the Threshold Amount shall conform to and at a minimum require the following:
(1) Published Advertisement. The department head authorized to execute the contract for the public work or improvement to be performed shall advertise for competitive bids in at least one local newspaper or periodical of general circulation. Such advertisement shall be published not fewer than ten (10) days prior to bid opening. The department may, in its discretion, include in the published advertisement the amount of the engineer's estimate for the work to be performed.
(2) Award and Certification Required. All published advertisements and Advertisements For Bid shall contain the following language [wording in brackets should be chosen as appropriate to the department]:
In accordance with San Francisco Administrative Code Chapter 6, no bid is accepted and no contract in excess of [the Threshold Amount] is awarded by the City and County of San Francisco until such time as [(1) for departments with boards or commissions, (a) the department head recommends the contract for award and (b) the board or commission then adopts a resolution awarding the contract]; or [(2) for departments under the Mayor, (a) the Mayor or the Mayor's designee approves the contract for award and (b) the department head then issues an order of award.] Pursuant to Charter Section 3.105, all contract awards are subject to certification by the Controller as to the availability of funds.
Failure of a department to include such language in a published advertisement or Advertisement For Bids does not give rise to a contract right by a bidder or contractor outside of the requirements of the Charter or Administrative Code of the City and County of San Francisco.
(3) Form of Bid. All bids shall be sealed and directed to the department head advertising for bids, in the format prescribed by the department head with the authority to execute the contract.
(4) Bid Bond. All bids in excess of $25,000.00 shall be accompanied by a corporate surety bond, or an irrevocable letter of credit on a bank or trust company doing business and having an office in the State of California, having a combined capital and surplus of at least $50,000,000.00, and subject to supervision or examination by Federal or State authority, or a certified check on a bank or trust company doing business and having an office in the State of California, having a combined capital and surplus of at least $50,000,000, and subject to supervision or examination by Federal or State authority, payable on sight to the City and County of San Francisco, the amount of which corporate surety bond, irrevocable letter of credit or certified check shall be fixed by the department head or officer as stated in the Advertisement For Bids, which amount shall not be less than 10 percent of the amount bid for the cost of the proposed work of improvement, and no bid shall be considered unless accompanied by a corporate surety bond or irrevocable letter of credit or certified check. Any irrevocable letter submitted pursuant to this Chapter shall be on a form provided by the City and County. If the amount of security required is fixed by the department head or officer in an amount in excess of $15,000.00, the form of security required shall be that of a corporate surety bond or irrevocable letter of credit. The requirement for a corporate surety bond, irrevocable letter of credit or certified check described in this subsection shall be referred to collectively as the "bid security requirements."
Notwithstanding the above, the bid security requirements for a particular contract may be modified by the department head in accordance with Administrative Code Section 12D.A.9.(A)(4).
(5) Fees. The department head or officer calling for bids may specify in the Advertisement For Bids for any project a nonrefundable fee to be paid by each prospective bidder for each set of bidding documents (including plans and specifications), such fee to defray the cost of reproducing each set of bidding documents as determined by the department head or officer, and all such fees shall be deposited as an abatement of the expenditure of the appropriation against which the cost of reproducing said bidding documents was charged.
(6) License. The department head shall specify in all Advertisements For Bids and plans for public work projects the classification of the contractor's license which a contractor shall possess at the time bids are submitted. Bidders and their subcontractors are required to be properly licensed at the time of bid.
(7) Qualifications. The department head responsible for the public work shall require from all bidders information concerning their experience and financial qualifications and shall take such information into consideration in the award of any contract. At a minimum the department head shall require (1) information concerning the contractor's experience, financial qualifications and ability to perform the terms and conditions of the contract and (2) information as to whether the contractor possesses, or can obtain in time to perform the contract, the necessary equipment. In the event that a bidder fails to provide such information within fourteen calendar days of bid opening, or as otherwise required in the Advertisement For Bids, the department head could find that the bidder is refusing to enter into the contract, resulting in a forfeiture of the bidder's bid bond.
(8) Business Tax Registration Certificate. All Advertisements For Bids shall require that bidders submit proof of a current Business Tax Registration Certificate. Failure of a bidder to provide such proof within fourteen (14) calendar dues of bid opening, or as otherwise required in the Advertisement For Bids, could, at the discretion of the department head, constitute a refusal to enter into the contract and result in a forfeiture of the bid bond.
(9) Designation of Subcontractors; Subcontracting and Subletting. All bidders shall designate their subcontractors in accordance with and shall be subject to the California Subletting and Subcontracting Fair Practices Act, at Public Contract Code § 4100 et seq., as amended from time-to-time. In addition to the penalties provided by Public Contract Code § 4100 et seq., violation of this subsection may be grounds for a determination of nonresponsibility under Article V of this Chapter.
(10) Work to Be Performed by General Contractor. The Advertisement For Bids may specify the portion of work which must be performed by the General Contractor using his/her own forces. The specification may require the General Contractor to perform with his/her own forces up to 25% of the base contract work. Bidders must certify with their bids that, if awarded the contract, they will perform with their own forces the specified percentage of the total bid price (excluding alternates).
(B) Quotes. All requests for quotes for construction contracts less than or equal to the Threshold Amount shall be posted with three-days' notice. Such requests shall at a minimum require a contractor's license, qualifications, a Business Tax Registration Certificate, participation in an apprenticeship program and compliance with subcontractor listing laws, all in accordance with the listed provisions of Sections 6.21 and 6.22.
(C) Right to Reject Any or All Bids or Quotes. The department head shall have the right to reject any or all bids or quotes for any reason or no reason. All Advertisements For Bids shall reserve this right, but failure to make such reservation shall not abrogate the right to reject.
(D) Bid Protests. Only a bidder may submit a bid protest. The department head concerned shall prescribe in the Advertisement For Bids procedures for submitting bid protests. Such procedures shall set the time by which bid protests must be received but may not require that bid protests be submitted fewer than five (5) business days after the date bids are due.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 153-00, File No. 000805, App. 6/30/2000; Ord. 324-00, File No. 001919, App. 12/28/2000; Ord. 7-02, File No. 011675, App. 1/25/2002; Ord. 208-02, File No. 021221, App. 10/18/02; Ord. 58-05, File No. 041571, App. 4/1/2005)
SEC. 6.22. PUBLIC WORK CONSTRUCTION CONTRACT TERMS AND WORKING CONDITIONS.
All construction contracts awarded by the City and County of San Francisco shall contain the following minimum terms and conditions:
(A) Bonds. Before the execution of any contract for public works or improvements, the department head authorized to execute such contracts shall require the successful bidder to file corporate surety bonds for the faithful performance thereof and to guarantee the payment of wages for services engaged and of bills contracted for material, supplies and equipment used in the performance of the contract. The bond shall be for a sum not less than 100 percent of the award.
The City and County of San Francisco, acting through its Human Rights Commission ("HRC"), intends to provide guarantees to private bonding assistance companies and financial institutions in order to induce those entities to provide required bonding and financing to eligible contractors bidding on and performing City public work contracts. This bonding and financial assistance program is subject to the provisions of Administrative Code Section 12D.A.9.
(B) Insurance. All construction contracts awarded under this Chapter must conform to the insurance requirements established by the Risk Manager. The Risk Manager shall develop uniform insurance requirements for City contracts subject to this Chapter and shall publish such requirements in the Risk Manager's Manual. The Risk Manager shall review and update such insurance requirements on an annual basis.
Every contractor and subcontractor shall comply with the provisions of California Labor Code section 3700. Prior to commencing the performance of work under any public work contract, the contractor and all of its subcontractors shall file with the awarding department a certificate of insurance against liability for workers compensation or proof of self-insurance in accordance with the provisions of the California Labor Code.
(C) Indemnification. All construction contracts awarded under this Chapter shall require that the contractor fully indemnify the City and County to the maximum extent provided by law, such that each contractor must save, keep, bear harmless and fully indemnify the City and County and any of its officers or agents from any and all liability, damages, claims, judgments or demands for damages, costs or expenses in law or equity that may at any time arise.
This indemnification requirement may not be waived or abrogated in any way for any contract without the recommendation of the City's Risk Manager and the express permission and approval of the Board of Supervisors.
(D) Assignment. No contract shall be assigned except upon the recommendation of the department head concerned and with the approval of the Mayor or the Mayor's designee, relative to the department under the Mayor's jurisdiction, or the approval of the board or commission concerned for departments not under the Mayor.
(E) Prevailing Wages.
(1) Generally. All contractors and subcontractors performing a public work or improvement for the City and County of San Francisco shall pay its workers on such projects the prevailing rate of wages as provided below. For the purpose of prevailing wage requirements only, the definition of a public work shall include those public works or improvements defined in the foregoing section 6.1 of this Chapter and shall also include (a) any trade work performed at any stage of construction (including preconstruction work) and (b) any public work paid for by the City and County of San Francisco with "the equivalent of money" under the meaning of Labor Code section 1720(b).
(2) Leased Property Included. For the limited purposes of this subsection, a "public work or improvement" also means and includes any construction work done under private contract when all of the following conditions exist:
(a) The construction contract is between private persons; and
(b) The property subject to the construction contract is privately owned, but upon completion of the construction work will be leased to the City and County of San Francisco for its use; and
(c) Either of the following conditions exist: (1) The lease agreement between the lessor and the City and County of San Francisco, as lessee, is entered into prior to the construction contract, or (2) The construction work is performed according to the plans, specifications, or criteria furnished by the City and County of San Francisco, and the lease agreement between the lessor and the City and County of San Francisco as lessee, is entered into during, or upon completion, of the construction work.
(3) Determination of the Prevailing Wage. It shall be the duty of the Board of Supervisors, from time to time and at least once during each calendar year, to fix and determine the prevailing rate of wages as follows:
On or before the first Monday in November of each year, the Civil Service Commission shall furnish to the Board of Supervisors data as to the highest general prevailing rate of wages of the various crafts and kinds of labor as paid in private employment in the City and County of San Francisco, plus "per diem wages" and wages for overtime and holiday work. The Civil Service Commission shall provide the Board of Supervisors data for "per diem wages" pursuant to California Labor Code sections 1773.1 and 1773.9, as amended from time to time. The Board of Supervisors shall, upon receipt of such data, fix and determine the prevailing rate of wages. The prevailing rate of wages as so fixed and determined by the Board of Supervisors shall remain in force and shall be deemed to be the highest general prevailing rate of wages paid in private employment for similar work, until the same is changed by the Board of Supervisors. In determining the highest general prevailing rate of wages per diem wages and wages for overtime and holiday work, as provided for in this section, the Board of Supervisors shall not be limited to the consideration of data furnished by the Civil Service Commission, but may consider such other evidence upon the subject as the Board shall deem proper and thereupon base its determination upon any or all of the data or evidence considered.
In the event that the Board of Supervisors does not fix or determine the highest general prevailing rate of wages in any calendar year, the rates established by the California Department of Industrial Relations for such year shall be deemed adopted.
(4) Specifications to Include Wage Rate. The department head authorized to execute a construction contract under this Chapter shall include in the contract specifications, or make available in the offices of the department or at the job site, a detailed statement of the prevailing rate of wages as fixed and determined by the Board of Supervisors at the time the department issued the Advertisement For Bids on the contract. The contractor shall agree to pay to all persons performing labor in and about the public work or improvement the highest general prevailing rate of wages as determined pursuant to this Chapter, including wages for holiday and overtime work. If the specifications do not include the prevailing rate of wages, the specifications shall include a statement that copies of the prevailing rate of wages as fixed and determined by the Board of Supervisors are on file at the department's principal office or at the job site and shall be made available to any interested party on request.
(5) Subcontractors Bound by Wage Provisions. Every contract for any public work or improvement shall also contain a provision that the contractor shall insert in every subcontract or other arrangement which he or she may make for the performance of any work or labor on a public work or improvement. This provision shall be that the subcontractor shall pay to all persons performing labor or rendering service under said subcontract or other arrangement the highest general prevailing rate of wages as fixed and determined by the Board of Supervisors for such labor or services.
(6) Records to be Kept by Contractors and Subcontractors. Every public works contract or subcontract awarded under this Chapter shall contain a provision that the contractor shall keep, or cause to be kept, for a period of four years from the date of substantial completion of a public work, payrolls and basic records including time cards, trust fund forms, apprenticeship agreements, accounting ledgers, tax forms and superintendent and foreman daily logs for all trades workers performing work at or for a City and County of San Francisco public work or improvement. Such records shall include the name, address and social security number of each worker who worked on the project, including apprentices, his or her classification, a general description of the work each worker performed each day, the rate of pay (including rates of contributions for, or costs assumed to provide fringe benefits), daily and weekly number of hours worked, deductions made and actual wages paid. Every subcontractor who shall undertake the performance of any part of a public work or improvement shall keep a like record of each person engaged in the execution of the subcontract.
The contractor shall maintain weekly certified payroll records for submission to the awarding department as required. The contractor shall be responsible for the submission of payroll records of its subcontractors. All certified payroll records shall be accompanied by a statement of compliance signed by the contractor indicating that the payroll records are correct and complete, that the wage rates contained therein are not less than those determined by the San Francisco Board of Supervisors and that the classifications set forth for each employee conform with the work performed.
All such records as described in this section shall at all times be open to inspection and examination of the duly authorized officers and agents of the City and County of San Francisco, including representatives of the Office of Labor Standards Enforcement.
Should the department head responsible for the public work or the Labor Standards Enforcement Officer determine that a contractor or subcontractor is not in compliance with the requirements of this subsection, the department head or the Labor Standards Enforcement Officer shall issue written notification to the contractor or subcontractor mandating compliance within not fewer than ten calendar days from the date of the notification. Should the contractor or subcontractor fail to comply as required in the notification, the department head who executed the contract or the Labor Standards Enforcement Officer may impose a penalty of $25.00 for each calendar day of noncompliance, or portion thereof, for each worker. Upon the request of the responsible department head or the Labor Standards Enforcement Officer, the Controller shall withhold these penalties from progress payments then due or to become due.
(7) Additional Required Contract Provisions. Every public works contract shall contain provisions stating that (1) the contractor will cooperate fully with the Labor Standards Enforcement Officer and other City employees and agents authorized to assist in the administration and enforcement of the prevailing wage requirements and other labor standards imposed on public works contractors by the Charter and Chapter 6 of the San Francisco Administrative Code; (2) the contractor agrees that the Labor Standards Enforcement Officer and his or her designees, in the performance of their duties, shall have the right to engage in random inspections of job sites and to have access to the employees of the contractor, employee time sheets, inspection logs, payroll records and employee paychecks; (3) the contractor shall maintain a sign-in and sign-out sheet showing which employees are present on the job site; (4) the contractor shall prominently post at each job-site a sign informing employees that the project is subject to the City's prevailing wage requirements and that these requirements are enforced by the Labor Standards Enforcement Officer; and (5) that the Labor Standards Enforcement Officer may audit such records of the contractor as he or she reasonably deems necessary to determine compliance with the prevailing wage and other labor standards imposed by the Charter and this Chapter on public works contractors. Failure to comply with these requirements may result in penalties and forfeitures consistent with California Labor Code section 1776(g), as amended from time to time.
(8) Non-compliance with Wage Provisions– Penalties.
(a) Penalty and Forfeiture. Any contractor or subcontractor who shall fail or neglect to pay to the several persons who shall perform labor under any contract, subcontract or other arrangement on any public work or improvement as defined in this Chapter the highest general prevailing rate of wages as fixed by the Board of Supervisors under authority of this Chapter, shall forfeit; and, in the case of any subcontractor so failing or neglecting to pay said wage, the original contractor and the subcontractor shall jointly and severally forfeit to the City and County of San Francisco back wages due plus the penal sum of $50.00 per day for each laborer, workman or mechanic employed for each calendar day or portion thereof, while they shall be so employed and not paid said highest general prevailing rate of wages, and in addition shall be subject to the penalties set forth in Article V of this Chapter, including debarment.
(b) Enforcement. It shall be the duty of the officer, board or commission under whose jurisdiction said public work or improvement is being carried on, made or constructed, when certifying to the Controller any payment which may become due under said contract, to deduct from said payment or payments the total amount of said forfeiture provided for in this subsection. In doing so, the department head must also notify in writing the Labor Standards Enforcement Officer of his/her action. The Labor Standards Enforcement Officer may also, upon written notice to the department head who is responsible for the project, certify to the Controller any forfeiture(s) to deduct from any payment as provided for in this subsection. Certification of forfeitures under this subsection shall be made only upon an investigation by the responsible department head or the Labor Standards Enforcement Officer and upon written notice to the contractor identifying the grounds for the forfeiture or forfeitures. The Controller, in issuing any warrant for any such payment, shall deduct from the amount which would otherwise be due on said payment or payments the amount of said forfeiture or forfeitures as so certified.
(c) Recourse Procedure. If the contractor or subcontractor disagrees with the forfeiture as so provided in the foregoing subparagraph (b), then the following procedure applies:
(i) The contractor or subcontractor may request a hearing in writing within 15 days of the date of the notification of forfeiture. The request shall be directed to the City Controller. Failure by the contractor or subcontractor to submit a timely, written request for a hearing shall constitute concession to the assessment and the forfeiture shall be deemed final upon expiration of the 15-day period;
(ii) Within 15 days of receiving a proper request, the Controller shall appoint a hearing officer with knowledge and not less than five years' experience in labor law, prevailing wage, and/or wage and hour issues, and shall so advise the enforcing official and the contractor or subcontractor, and/or their respective counsel or authorized representative;
(iii) The hearing officer shall promptly set a date for a hearing. The hearing must commence within 45 days of the notification of the appointment of the hearing officer and conclude within 75 days of such notification unless all parties agree to an extended period;
(iv) The contractor or subcontractor shall have the burden of proving that the basis for the back wage and penalty assessment is incorrect;
(v) Within 30 days of the conclusion of the hearing, the hearing officer shall issue a written decision affirming, modifying, or dismissing the assessment. The decision of the hearing officer shall consist of findings and a determination. The hearing officer's findings and determination shall be final.
(vi) The contractor or subcontractor may appeal a final determination under this section only by filing in the San Francisco Superior Court a petition for a writ of mandate under California Code of Civil Procedure, section 1084, et seq., as applicable and as may be amended from time to time.
(d) Distribution of Forfeiture. The Controller shall withhold any forfeiture as provided in the foregoing paragraphs until such time as either the contractor or subcontractor has conceded to the forfeiture or, in the event of an objection, there is a determination no longer subject to judicial review. The Controller shall then distribute the amounts withheld in the following order: (1) the Labor Standards Enforcement Officer shall make its best efforts to distribute back wages withheld to the individual workers identified as not having been paid the proper wage rate; (2) the penal sums provided for above shall inure to the benefit of the general fund of the City and County of San Francisco; (3) the Controller shall hold the balance of any back wages in escrow for workers whom the Labor Standards Enforcement Officer, despite his/her best efforts, cannot locate; funds so held for two years or more shall be dedicated to the enforcement of the prevailing wage requirements.
(F) Hours and Days of Labor.
(1) Generally. For the purpose of meeting prevailing conditions and enabling employers to secure a sufficient number of satisfactory workers and artisans, no person performing labor or rendering service in the performance of any contract or subcontract for any public work or improvement as defined in this Chapter shall perform labor for a longer period than five days (Monday through Friday) of eight hours each, with two 10-minute breaks per eight-hour day, except in those crafts in which a different work day or week now prevails by agreement in private employment. Any person working hours in addition to the above shall be compensated in accordance with the prevailing overtime standards and rates.
(2) Noncompliance– Penalties and Forfeiture. Any contractor or subcontractor who shall violate any of the provisions of this subsection shall be liable for the same penalties and forfeits as those specified in Subsection 6.22(E) of this Chapter; penalties and forfeits shall be applicable for each laborer, mechanic or artisan employed for each calendar day or portion thereof whereon such laborer, mechanic or artisan is compelled or permitted to work more than the days and hours specified herein. The provisions of this subsection shall be made a part of all contracts and subcontracts for the construction of any public work or improvement.
(3) Contracts Outside City and County. In the event that any public work or improvement is to be constructed outside of the City and County of San Francisco and at such a distance therefrom that those engaged in performing labor on said public work or improvement must under ordinary conditions remain at or near the site of said work or improvement when not actually engaged in the performance of labor thereon, then the officer, board or commission responsible for the construction of said public work or improvement may, in making specifications or letting contracts therefor, make provision therein for days and hours of labor beyond the limitations provided for in Section 6.22(F) of this Chapter; but not to exceed eight hours in any one calendar day, or six days in any calendar week. In the event that emergency conditions shall arise, making a change advisable during the performance of any such contract, or any portion thereof, the hours and days of labor may be extended beyond the limits hereinabove expressed; but not to exceed eight hours per day, upon the written authority of the officer, board or commission awarding such contract. Failure of the contractor to perform such contract within the time provided shall not constitute an emergency.
(G) Local Hiring.
(1) Contract Requirements. All construction contracts for public works or improvements to be performed within the boundaries of the City and County of San Francisco shall contain the following provisions:
Contractor agrees to make a good-faith effort, with the assistance of community organizations designated by the City or local labor union hiring halls, to hire qualified individuals who are residents of the City and County of San Francisco to comprise not less than 50% of each contractor's total construction work force, measured in labor work hours, and contractor promises to give special preference to minorities, women and economically disadvantaged individuals.
Contractor shall keep, and provide to the City, an accurate record showing the name, place of residence, hours employed and per diem pay of each person employed by the contractor, including full-time, part-time, permanent and temporary employees.
Contractor shall keep, and provide to the City, an accurate record describing in detail contractor's good-faith efforts to secure employment of residents of the City and County of San Francisco.
A failure to abide by these contract provisions may result in the imposition of sanctions and penalties, including those provided for in San Francisco Administrative Code Section 6.80.
(2) Definitions.
"Qualified Individual" shall mean an individual who (A) is eligible for a certified apprenticeship program in an applicable trade; (B) has completed a certified apprenticeship program in an applicable trade; or (C) has completed comparable time in an applicable trade.
"Resident of the City and County of San Francisco" shall mean an individual who is domiciled, as defined by Section 200(b) of the California Election Code, within the boundaries of the City and County during the entire time of the performance of the contract and who can verify his or her domicile, upon request of the contractor or City, by producing documentation such as a rent/lease agreement, telephone and utility bills or payment receipts, a valid California driver's license or identification card, and/or any other similar, reliable evidence that verifies that the individual is domiciled within the City and County of San Francisco.
"Economically disadvantaged" shall mean an individual who has been unable to secure employment in his or her trade for more than 20 working days in the past six months, or whose annual maximum income falls within the income limits established by the Mayor's Office of Community Development for the Community Development Block Grant (CDBG) programs.
(3) Enforcement. The Human Rights Commission shall be the City agency charged with the monitoring and enforcement of the provisions of this subsection.
(H) Modifications– General Requirements. If it becomes necessary in the prosecution of any public work or improvement under contract to make alterations or modifications or to provide for extras, such alterations, modifications or extras shall be made only on written recommendation of the department head responsible for the supervision of the contract, together with the approval of the Mayor or the Mayor's designee or the board or commission, as appropriate to the department, and also the approval of the Controller, except as hereafter provided. The Mayor or the board or commission, as appropriate to the department, may delegate in writing the authority to approve such alterations, modifications or extras to the department head, except as provided below. The Controller may delegate in writing the authority to encumber funds from prior appropriations for such alterations, modifications or extras to the department head prior to the certification for payment. Such authority, when granted, will clearly state the limitations of the changes to be encompassed.
(1) Increasing or Decreasing Price. Alterations, modifications or extras in any contract, which will increase or decrease the contract cost or scope, may be made or allowed only on the written recommendation of the department head responsible for the supervision of the contract stating the amount and basis for such increase or decrease. For any cumulative increase or decrease in price in excess of ten percent of the original contract price or scope, the department head shall obtain the approval of the Mayor or Mayor's designee or the board or commission as appropriate and also the approval of the Controller notwithstanding any delegation provided for above.
(2) Extensions of Time. Upon finding that work under a construction contract cannot be completed within the specified time because of an unavoidable delay as defined in the contract, the department head may extend the time for completion of the work. If the cumulative extensions of time exceeds ten percent of the original contract duration, the department head shall first obtain the approval of the Mayor, the Mayor's Designee, board or commission, as appropriate to the department notwithstanding any delegation provided for above. All time extensions shall be in writing, but in no event shall any extension be granted subsequent to the issuance of a certificate of final completion.
(a) Time Extension Not Waiver of City's Rights. The granting of an extension of time because of unavoidable delays shall in no way operate as a waiver on the part of the City and County or the department head, Mayor, board or commission of the right to collect liquidated damages for other delays or of the right to collect other damages or of any other rights to which the City and County is entitled.
(b) No Extension Granted When Contract Based on Time Estimates. When any award of contract has been made in consideration, in whole or in part, of the relative time estimates of bidders for the completion of the work, no extension of time may be granted on such contract beyond the time specified for completion, unless the liquidated damages for each day the work is uncompleted beyond the specified time shall be collected; provided, however, that this shall not apply to unavoidable delays due to acts of God.
(c) Avoidable and Unavoidable Delay; Limitation of Damages for Delay. The department head administering the public work shall have the authority to specify in the contract the delays that shall be deemed avoidable or unavoidable. The City and County shall not pay damages or compensation of any kind to a contractor because of delays in the progress of the work, whether such delays be avoidable or unavoidable; provided, however, the City and County may pay for (1) delays caused to the contractor by the City and County; and (2) such unavoidable delays as may be specifically stated in the contract. Such latter delays will be compensated for only under the conditions specified in the contract.
(d) Notice of Delay Required. The contractor shall promptly notify the department head in writing, of all anticipated delays in the prosecution of the work and, in any event, promptly upon the occurrence of a delay, the notice shall constitute an application for an extension of time only if the notice requests such extension and sets forth the contractor's estimate of the additional time required together with a full recital of the causes of unavoidable delays relied upon. The department head may take steps to prevent the occurrence or continuance of the delay, may classify the delay as avoidable or unavoidable and may determine to what extent the completion of the work is delayed thereby.
(I) Liquidated Damages. Any contract may provide a time within which the contract work, or portions thereof, shall be completed and may provide for the payment of agreed liquidated damages to the City and County for every calendar or working day thereafter during which such work shall be uncompleted.
(J) Retention of Progressive Payments. Any contract may provide for progressive payments, if the Advertisement For Bids shall so specify. Each progress payment shall constitute full compensation for the value of work performed and materials furnished for a specified period, less amounts withheld as a result of dispute or as required by law.
(1) From every progress payment, the City shall hold 10 percent in retention.
(2) If the department head responsible for the public work or his/her designee determines that the contract is 50 percent or more complete, that the contractor is making satisfactory progress, and that there is no specific cause for greater withholding, the department head or his/her designee, upon the written request of contractor, may authorize one of the following two options: (a) the City shall release part of the retention to the contractor so that the amount held in retention by the City, after release to the contractor, is reduced to an amount not less than 5 percent of the total value of the labor and materials furnished, and the City shall proceed to retain 5 percent of any subsequent progress payment under the contract; or (b) the City shall continue to hold the already withheld retention amount, up to 5 percent of the total contract price, and shall not deduct further retention from progress payments.
(3) Retention shall be withheld solely for the benefit and protection of the City,
(4) The City shall release retention to the contractor upon the following conditions: (a) the contractor has reached final completion under the contract terms and conditions and (b) the contract is free of offsets by the City for liquidated damages, defective work and the like, and is free of stop notices, forfeitures, and other charges. When the department head responsible for the public work or his/her designee determines that the contract is 98 percent or more complete, the department head or his/her designee may reduce retention funds to an amount equal to 200 percent of the estimated value of work yet to be completed, provided that the contract is free of offsets by the City and is free of stop notices, forfeitures, and other charges.
(5) In no event shall the City be liable for interest or charges arising out of or relating to the date the City issues any progress payment or the date the City releases all or part of the retention, except that the City will pay interest at the legal rate, as set forth in section 685.010(a) of the California Code of Civil Procedure as that section may be amended from time to time, on any improperly withheld amounts commencing no earlier than 90 days after the date the City should have made any progress payment or released all or part of the retention. Under no circumstances shall the legal rate of interest paid by the City under this provision exceed 10 percent per annum. The payment of interest under this provision is the limit of the City's liability with respect to any claim for interest on improperly withheld amounts.
(K) Inspection and Acceptance of Completed Work; Final Payment. The department head authorized to execute any contract for public works or improvements shall be responsible for the inspection and acceptance of such work on completion. Such acceptance shall be in writing and shall include the certificate of the department head concerned that the work covered by the contract has been fully and satisfactorily completed in accordance with the plans and specifications therefor. Receipt of copy of such acceptance in writing shall constitute the Controller's authority to complete any payments due the contractor under the contract; provided that the Controller may make such additional investigation or inspection as is provided by Administrative Code Section 10.07.
(L) Termination for Convenience. In all contracts for the construction of any public work or improvement, the department head authorized to execute any contract for any public work or improvement may include in the specifications setting forth the terms and conditions for the performance of the contract a provision that the City and County may terminate the performance of work under the contract whenever the department head shall determine, with the approval of the Mayor, the Mayor's designee or the board or commission concerned, that such termination is in the best interest of the City and County. Any such termination shall be effected by delivery to the contractor of a notice of termination specifying the extent to which performance of work under the contract is terminated and the date upon which such termination becomes effective. The department head is hereby authorized to include within such construction contract the appropriate language to implement this subsection.
(M) Violations of Chapter 6; False Claims. Every public work contract performed at the expense of the City and County of San Francisco, or the cost of which is paid for out of monies deposited in the treasury of the City and County, whether directly awarded or indirectly by or under subcontract, subpartnership, day labor, station work, piece work or any other arrangement whatsoever, shall incorporate the provisions of Article V (commencing at Section 6.80) of this Chapter, relating to administrative debarments and false claims. The failure to include such reference or incorporation shall not in any way abrogate the rights of the City and County under Article V of this Chapter.
(N) Articles Not to be Prison Made. No article furnished under any contract awarded under the provisions of this Chapter shall have been made in a prison or by convict labor except for articles made in prisons or by convicts under the supervision and control of the California Department of Corrections and limited to articles for use by the City and County's detention facilities.
(O) Employment of Apprentices. All construction contracts awarded under this Chapter shall require the Contractor to comply with the requirements of the State Apprenticeship Program (as set forth in the California Labor Code, Division 3, Chapter 4 [commencing at Section 3070] and Section 1777.5), as it may be amended from time to time, and shall require the Contractor to include in its subcontracts the obligation for subcontractors to comply with the requirements of the State Apprenticeship Program.
(P) Safety. All construction contracts awarded under this Chapter shall require the Contractor and all of its subcontractors to abide by the applicable Occupational Safety and Health statutes and regulations.
Additionally, all construction contracts awarded under this Chapter shall require the Contractor and all of its subcontractors to abide by the requirements of Administrative Code Section 64.1, prohibiting masonry-dry cutting and masonry dry-grinding, with exceptions.
(Q) Claims. The City shall consider only those claims for additional payment under a public work contract that are certified and that conform to the contract requirements for claims, pricing, and schedule.
(1) Claims by Contractors. The contractor shall certify under penalty of perjury that (a) the claim is made in good faith; (b) the supporting data are accurate and complete to the best of Contractor's knowledge and belief; and (c) the amount request accurately reflects the Contract adjustment for which the Contractor believes the City is liable. An individual or officer authorized to act on behalf of the Contractor shall execute the certification.
(2) Claims by Subcontractors. Subcontractors at any tier are not third-party beneficiaries of any Contract awarded under this Chapter. The City shall not consider a direct claim by any subcontractor. A Contractor presenting to the City any claim on behalf of a subcontractor must certify the subcontractor's claim in the same manner the Contractor would certify its own claim under the foregoing paragraph (1).
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 153-00, File No. 000805, App. 6/30/2000; Ord. 237-00, File No. 001207, App. 10/20/2000; Ord. 7-02, File No. 011675, App. 1/25/2002; Ord. 208-02, File No. 021221, App. 10/18/2002; Ord. 58-05, File No. 041571, App. 4/1/2005; Ord. 107-05, File No. 050215, App. 6/10/2005; Ord. 131-06, File No. 060444, App. 6/22/2006; Ord. 119-08, File No. 080277, App. 7/11/2008)
SEC. 6.23. PUBLIC WORKS TO BE PERFORMED BY THE CITY; BIDS BY CITY DEPARTMENTS; PROCEDURE UPON REJECTION OR FAILURE OF BIDS.
(A) Public Works Less Than or Equal to the Threshold Amount. Any public work or improvement estimated to cost less than or equal to the Threshold Amount may be performed by the employment of the necessary labor and purchase of the necessary materials and supplies directly by the City and County.
(B) Bids by City Departments. Appropriate City and County departments may file sealed bids for the execution of any work to be performed under a contract and shall not be required to furnish security or submit information relative to financial qualifications as provided in this Chapter. Any bid submitted by a department of the City and County, if it is the lowest bid, must be approved by the Controller before the award of contract. If the bid of a City and County department, as investigated and approved by the Controller, is the lowest, the contract shall be awarded to the department which shall record accurate unit costs of all direct and indirect charges incurred under any such contract. Such unit costs shall be reported to and audited by the Controller monthly and on completion of the work.
The Controller shall maintain records of bids filed by departments in relation to the total direct and indirect cost of each such work and shall report thereon periodically to the Mayor. The Controller may refuse to approve contracts with a department shown to be repeatedly underbidding on contract work and failing to complete same within the contract price or time.
(C) Procedure Upon Rejection or Failure of Bids. When bids have been advertised pursuant to the required procedures and no bids are received, or only one responsive bid is received from a responsible bidder, the department head shall take the following actions, as appropriate:
(1) No Bids Received. If no bids are received, the department head shall determine (a) whether further outreach efforts would result in contractors submitting bids and/or (b) whether removal or modification of certain requirements in the contract would result in contractors submitting bids, provided that such requirements are not required by statute or law and their removal or modification would not compromise the interests of the City and County. If the department head determines that steps (a) and/or (b), above, would likely result in contractors submitting bids, then the department head shall re-bid the work. If the department head determines that neither step (a) nor (b), above, would likely result in contractors submitting bids, then the department head, with the approval of the Mayor, the Mayor's designee, or the board or commission concerned, as appropriate, may negotiate with any qualified contractor or may order the work to be executed by the City and County.
(2) One Responsive Bid Received; No Other Bids Received. If only one responsive bid is received from a responsible bidder, and no other bids are submitted for the same work, the department head may recommend the award of a contract to the sole bidder at the bid price received, provided that the bid price does not exceed the engineer's estimate for the work. If the bid price received exceeds the engineer's estimate, the department head shall determine (a) whether further outreach efforts would result in more than one bid and/or (b) whether removal or modification of certain requirements in the contract would result in more than one bid, provided that such requirements are not required by statute or law and their removal or modification would not compromise the interests of the City and County. If the department head determines that steps (a) and/or (b), above, would likely result in more than one bid at bid prices substantially lower than the bid price received, then the department head shall re-bid the work. If the department head determines that neither step (a) nor (b), above, would likely result in more than one bid at bid prices substantially lower than the bid price received, then the department head, with the approval of the Mayor, the Mayor's designee, or the board or commission concerned, as appropriate, may negotiate with the sole bidder or any qualified contractor, or may order the work to be executed by the City and County. The cost of negotiated work or the cost of work executed by the City and County shall not exceed any bid price received for the same work.
(3) One Responsive Bid Received; Other Nonresponsive Bids Received. If only one responsive bid is received from a responsible bidder and other, nonresponsive bids and/or bids by nonresponsible bidders are submitted for the same work, the department head may recommend the award of a contract to the sole responsive, responsible bidder at the bid price received, provided that the bid price does not exceed the engineer's estimate for the work. If the responsive bid price received exceeds the engineer's estimate, the department head shall determine (a) whether the qualifications for bidders were too onerous and not necessary for the work and/or (b) whether one or more of the nonresponsive bids could be easily cured and whether the bidders that submitted such bids are still interested in bidding on the work. If the department head determines that the steps(a) and/or (b), above, would likely result in more than one responsive bid by responsible bidders, at bid prices substantially lower than the bid price received, then the department head shall re-bid the work. If the department head determines that neither step (a) nor (b), above, would result in more than one responsive bid by responsible bidders at bid prices substantially lower than the bid price received, then the department head, with the approval of the Mayor, the Mayor's designee, or the board or commission concerned, as appropriate, may negotiate with the sole responsible bidder or any qualified contractor, or may order the work to be executed by the City and County. The cost of negotiated work or the cost of work executed by the City and County shall not exceed any bid price received for the same work.
(4) All contracts awarded under this subsection 6.23(C), including negotiated contracts, shall require that the substitution of subcontractors be in accordance with California Public Contract Code section 4107.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; Ord. 119-08, File No. 080277, App. 7/11/2008)
SEC. 6.24. OFFICE OF LABOR STANDARDS ENFORCEMENT; PREVAILING WAGE REQUIREMENTS.
(A) Subject to the approval of the Mayor and Director of the Department of Administrative Services, the Labor Standards Enforcement Officer shall develop and administer a plan for the enforcement of the prevailing wage requirements and other labor standards imposed by the Charter and this Chapter on public work contractors. The Labor Standards Enforcement Officer shall coordinate his or her activities with federal and state labor standards agencies. The Labor Standards Enforcement Officer shall direct the City's enforcement of the prevailing wage requirements and other labor standards imposed by the Charter and this Chapter on public work contractors as directed by the Mayor, and to this end all City departments shall cooperate with the Labor Standards Enforcement Officer. The Labor Standards Enforcement Officer has the authority to seek for violations of prevailing wage, working conditions and apprenticeship requirements all of the penalties imposed by this Chapter, including the authority to file charges, in the same manner and to the same extent as a department head, which may lead to the debarment of the contractor under Article V of this Chapter. The Labor Standards Enforcement Officer shall oversee the training of City personnel in the area of labor standards enforcement. In accordance with applicable law, the Mayor may enter into a contract for investigative and monitoring services to further the purposes of this section. In evaluating the qualifications of persons seeking that contract, the Mayor shall consider, among other relevant factors, the experience of those persons in monitoring and investigating labor standards compliance.
(B) Subject to the fiscal and budgetary provisions of the Charter, the Office of Labor Standards Enforcement is authorized to receive from departments awarding public work contracts the amount reasonably calculated to pay for the costs, including litigation costs, of enforcing the City prevailing wage requirements and other labor standards for contracts awarded by those departments. The Labor Standards Enforcement Officer shall supervise the expenditure of all funds appropriated for enforcement of prevailing wage requirements and other labor standards imposed by the Charter and this Chapter on public works contractors.
(C) The Labor Standards Enforcement Officer shall establish an administrative procedure to address allegations of labor standards violations in connection with any public work contract under this Chapter. The Labor Standards Enforcement Officer shall have sole authority over the administration of this complaint procedure. The complaint procedure shall include but need not be limited to the following: (1) any person may file a complaint, written or oral, alleging one or more violations of any labor standards requirement imposed by this Chapter on public work contractors; (2) before beginning to investigate the complaint, the Labor Standards Enforcement Officer shall determine if the allegations of the complaint are sufficient and based on that assessment shall determine to either dismiss it or proceed with an investigation; (3) if the Labor Standards Enforcement Officer at any time determines that the allegations contained in the complaint are without merit, the Labor Standards Enforcement Officer shall notify the complainant; and (4) if the Labor Standards Enforcement Officer finds that any allegations in a complaint have merit, the Labor Standards Enforcement Officer shall proceed in accordance with the enforcement procedures under Section 6.22 of this Chapter. This complaint procedure is applicable to allegations of labor standards violations in connection with any public work contract under this Chapter, but is not applicable to those matters under the administrative jurisdiction of the San Francisco Human Rights Commission. This procedure shall not preclude the Labor Standards Enforcement Officer from initiating or proceeding with an investigation on his or her own authority. All public work contractors and departments engaged in public work shall cooperate fully with the Office of Labor Standards Enforcement in connection with any investigation of any complaint filed in accordance with this complaint procedure. The Labor Standards Enforcement Officer may interview, either at the worksite or elsewhere, any witness who may have information relative to a complaint.
(Added by Ord. 237-00, File No. 001207, App. 10/20/2000; amended by Ord. 208-02, File No. 021221, App. 10/18/2002; Ord. 8-03, File No. 021856, App. 1/31/2003; Ord. 5-06, File No. 051652, App. 1/20/2006)
SEC. 6.25. CLEAN CONSTRUCTION.
(a) Definitions:
(1) "Biodiesel" means a fuel comprised of mono-alkyl esters of long chain fatty acids derived from vegetable oils or animal fats. designated B100 or "neat biodiesel", and meeting the requirements of ASTM D 6751.B20 is a mixture of 20% biodiesel and 80% petroleum.
(2) "City" means the City and County of San Francisco.
(3) "Clean Construction" means performing all work required to be performed under a public works contract (1) utilizing only off-road equipment and off-road engines fueled by biodiesel fuel grade B20 or higher and (2) utilizing only high use equipment that either (a) meets or exceed Tier 2 standards for off-road engines or (b) operates with the most effective verified diesel emission control strategy.
(4) "Director" means the Director of the Department of the Environment, or his or her designee.
(5) "High Use Vehicles" means off-road vehicles or off-road engines used an aggregate of 20 or more hours during any portion of the project.
(6) "Major construction project" means a public work to be performed within the geographic limits of the City that is estimated to require twenty (20) or more cumulative days of work to complete.
(7) "Most effective verified diesel emission control strategy" means a device, system or strategy that is verified pursuant to Division 3 Chapter 14 of Title 13 of the California Code of Regulations to achieve the highest level of pollution control from an off-road vehicle.
(8) "Off-road engine" means a diesel internal combustion engine (including the fuel system) including without limitation, internal combustion engines used to power excavators, backhoes, bulldozers or similar equipment used in any project subject to this Chapter. "Off-road engine" does not include portable engines or stationary engines (engines that remain at one location for more than 12 months).
(9) "Off-road vehicle" means a vehicle that is propelled by an off-road engine of twenty-five horsepower or greater, including, without limitation, excavators, backhoes, bulldozers and similar equipment used in any project subject to this Chapter. "Off-road vehicle" does not include a horticultural maintenance vehicle used for landscaping purposes that is powered by an off-road engine of sixty-five horsepower or less and that is not used in any construction program or project. "Off-road vehicle" does not include portable equipment.
(10) Public work means a contract for the erection, construction, renovation, alteration, improvement, demolition, excavation, installation, or repair of any public building, structure, infrastructure, bridge, road, street, park, dam, tunnel, utility or similar public facility that is performed by or for the City, and the cost of which is to be paid wholly or partially out of moneys deposited in the City Treasury or out of trust monies under the control of or collected by the City.
(11) "Sensitive Site" means a hospital or other medical institution with facilities for inpatient care, a residential care facility providing lodging board and acre for a period of 24 hours or more to seven or more persons, a child-care facility providing less than 24 hour care for 13 or more children, or an elementary or secondary school, either public or private, or residences.
(12) "Tier 2 Standards" are those standards for an off-road engine as described in Division 3 Chapter 9, Article 4, Section 2423(b)(1)(A) of Title 13 of the California Code of Regulations, as amended.
(b) Clean Construction on Major Construction Projects.
(1) Requirement. Clean Construction shall be required for all public works contracts for major construction projects solicited on or after a date two years from the effective date of this Ordinance. For all such contracts, the department head or officer calling for bids shall specify in the Advertisement for Bids that Clean Construction is required for the performance of all work unless a waiver of all or part of the requirements of this Chapter has been granted under Section 6.25(b)(3).
(2) Contract Provisions and liquidated damages. Every contract for which Clean Construction is required under Section 6.25(b)(1)(A) or Section 6.25(b)(1)(B) shall contain provisions, in a form to be approved by the City Attorney: (A) requiring Clean Construction, (B) authorizing waivers as set forth in Section 6.25(b)(3), and (C) specifying liquidated damages in the amount of $100.00 per day per each piece of off-road equipment and each off-road engine utilized to complete work on the project in violation of the Clean Construction requirements.
(3) Waivers. Waivers from the requirements of this Chapter are available under the following circumstances:
(A) Emergency. A contract awarding department may grant itself a waiver from this Chapter when the contract awarding authority certifies in writing to the Director, prior to the Controller's contract certification, that the contract is being awarded under the emergency provisions of Administrative Code Section 6.60 and that there is no immediately available contractor capable of performing the work as Clean Construction. In such case, the contract awarding authority shall within two business days notify the Director in writing of the emergency that prevented compliance with this Chapter and describe steps being taken to safeguard public and City employee health during the noncomplying work, and shall explain steps to reduce the likelihood that a similar emergency waiver would be required in the future.
(B) Performance Standards. The Director may grant a waiver in whole or part from this Chapter prior to the solicitation of bids upon a showing by the contract awarding authority that there are no complying off-road vehicles or off-road engines for some or all of the required work, provided that the contract awarding authority provides a written memorandum explaining the need for the waiver and the steps that will be taken to safeguard public and City employee health during the noncomplying work.
(C) Cost Prohibitive. The Director may grant a waiver in whole or part from this Chapter prior to the solicitation of bids upon a showing by the contract awarding authority that compliance would be cost prohibitive under the circumstances, provided that the contract awarding authority provides a written memorandum explaining the need for the waiver and the steps that will be taken to safeguard public and City employee health during the noncomplying work.
(D) Other. The Director may grant a waiver in whole or part from this Chapter prior to the solicitation of bids or may waive the biodiesel and/or emissions standards for Clean Construction in advance of any violation of the Clean Construction requirements as to specific off-road equipment or off-road engines essential to complete the work provided that the contract awarding authority provides a written memorandum demonstrating a reasonable basis for the waiver including a reasonable plan to minimize the use of noncomplying equipment or engines, and the steps that will be taken to safeguard public and City employee health during the noncomplying work, and further provided that such post-award waivers for specific equipment may not exceed 25% of the total operating hours of all off-road vehicles or off-road engines used on the project.
(E) Rules and Regulations. After a public hearing, the Director, in consultation with the contract awarding authorities, may promulgate rules, regulations or guidelines as necessary or appropriate to carry out the purposes and requirements of this Chapter and may adopt forms necessary to implement this Chapter.
(F) Publication of Waivers Granted. The Department of the Environment and the contract awarding authorities shall maintain and post a list of all waivers granted on their Departmental Websites in a manner that can easily be accessed by the public.
(4) Clean Construction Projects encouraged for other City Contracts. In recognition of the health and other environmental benefits of Clean Construction, contract-awarding authorities are encouraged to require contractors to meet the standards for Clean Construction, as appropriate, in contracts not otherwise covered by this Chapter.
(5) Penalty.
(A) Whenever any City department finds, after an investigation by the contract awarding authority and the City Attorney, that a person or entity being considered for a contract, or under contract, with the City has, in connection with the bidding, execution or performance of any City contract, falsely represented to the City the nature or character of the off-road vehicles and/or off-road engines to be utilized, or utilized, on the contract, the City department shall have the authority to impose such sanctions or take such other actions as are designed to ensure compliance with the provisions of this Chapter.
(B) Measures which are available to the City to enforce this Chapter upon finding a violation pursuant to Section 6.25 (b)(5)(A) include, but are not limited to the following:
(i) Refusal to certify the award of a contract;
(ii) Suspension of a contract;
(iii) Ordering the withholding of City funds due the contractor under any City contract;
(iv) Ordering the recession of a contract based upon a material breach of contract provisions or pertaining to representations made in bidding, execution or performance of the contract;
(v) Debarment of a bidder, proposer or contractor from eligibility for providing commodities or services to the City for a period not to exceed five years, with a right to review and reconsideration by the City upon a showing of corrective action indicating violations are not likely to reoccur.
(C) Nothing in this Chapter shall be construed to relieve a contractor of responsibility to perform the contract.
(Added by Ord. 70-07, File No. 061432, App. 4/2/2007)
[Sections 6.26 through 6.39 reserved]
ARTICLE III:
PROFESSIONAL SERVICES CONTRACTINGSec. 6.40. Competitive Procurement of Professional Services for Public Work Projects.
Sec. 6.41. Requests for Competitive Proposals or Qualifications.
Sec. 6.42. Professional Services Contract Terms.
SEC. 6.40. COMPETITIVE PROCUREMENT OF PROFESSIONAL SERVICES FOR PUBLIC WORK PROJECTS.
Notwithstanding any other provision of this Administrative Code, when a department is seeking outside temporary professional design, consultant or construction management services for a public work project, where the fee for such services shall exceed the minimum competitive amount, as defined below, the department shall procure such services through a competitive process based on qualifications.
(A) Minimum competitive amount. The minimum competitive amount for temporary outside professional service contracts shall be $25,000. On January 1, 2005, and every five years thereafter, the Controller shall recalculate the minimum competitive amount to reflect any proportional increase in the Urban Regional Consumer Price Index from January 1, 2000, rounded to the nearest $1,000.
(B) Selection Process. For professional services contracts in excess of the minimum competitive amount, the department head for the department empowered to contract for the public work shall designate one or more panels to review proposals and interview and rate respondents with respect to a request for proposals or qualifications for a professional services contract. A panel shall consist of not fewer than two persons. The department head may establish a multi-tier selection process whereby, for example, a technical panel recommends a shortlist of qualified respondents and a second panel ranks the shortlist.
The department head shall ensure that all panel members are impartial and that all respondents are treated fairly. The panel members rating the respondents shall do so according to their independent assessment of the respondent's qualifications for the public work project; questions relating to a respondent's expertise, qualifications and experience shall remain within the sole purview of the panel members.
Any rating sheet completed by any panel member may be considered a matter of public record, but the names of the individual panel members shall not. Any name appearing on a rating sheet produced in accordance with the Public Records Act or the San Francisco Sunshine Ordinance shall be redacted.
(C) Negotiation. Following the selection process outlined above, and should the department concerned desire to enter into a contract, the department head shall invite the highest-ranked qualified respondent to negotiate a professional services agreement. In the event that the department head determines, in the department head's sole discretion, that negotiations are unfruitful, the department head shall terminate negotiations in writing and may then invite the next-ranked respondent to negotiate a contract. In such event, the department head shall as soon as practicable make a report to the Mayor, board or commission as appropriate to the department.
(Amended by Ord. 324-00, File No. 001919, App. 12/28/2000; Ord. 7-02, File No. 011675, App. 1/25/2002)
SEC. 6.41. REQUESTS FOR COMPETITIVE PROPOSALS OR QUALIFICATIONS.
All requests for competitive proposals or qualifications for temporary design, consultant or construction management services shall conform to and at a minimum require the following:
(A) Evaluation Criteria. The department head authorized to execute the contract shall determine the criteria by which the design, consultant or construction management service professionals shall be evaluated, on a project-by-project basis. Such criteria shall be included as a part of any request for proposals or qualifications. The criteria shall be based primarily on qualifications and experience relevant to the services needed for the project. Except as prohibited by law, the department head, in his/her sole discretion, may determine that, in the best interests of the City and County of San Francisco, a consultant who participated in the master plan, conceptual phase or other preliminary work for a project, may compete to provide professional services in future phases of such project. In such event, the consultant may not use, nor may the selection panel consider, the consultant's prior work on the project to establish its experience or qualifications in the competitive process.
(B) Reservation of Rights to Reject or Cancel the Request for Proposals in Whole or Part. The department head authorized to execute the contract, upon approval of the Mayor, the Mayor's designee or the board or commission, as appropriate, may reject any or all proposals, in whole or in part, received in response to a request for proposals or qualifications. The right to reject shall be reserved in any request for proposals or qualifications, but the failure to include such reservation shall not abrogate the rights of the department head under this section or give rise to any right by any respondent.
(C) Award and Certification Required. All requests for proposals or qualifications shall contain the following language [wording in brackets should be chosen as appropriate to the department]:
In accordance with San Francisco Administrative Code Chapter 6, no proposal is accepted and no contract in excess of [the Threshold Amount] is awarded by the City and County of San Francisco until such time as [(1) for departments with boards or commissions, (a) the department head recommends the contract for award and (b) the board or commission then adopts a resolution awarding the contract; or [(2) for departments under the Mayor, (a) the Mayor or the Mayor's designee approves the contract for award and (b) the department head then issues and order of award]. Pursuant to Charter Section 3.105, all contract awards are subject to certification by the Controller as to the availability of funds.
Failure of a department to include such language in a request for proposals or qualifications does not give rise to a contract right by a respondent or contractor outside of the requirements of the Charter or Administrative Code of the City and County of San Francisco.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 58-05, File No. 041571, App. 4/1/2005)
SEC. 6.42. PROFESSIONAL SERVICES CONTRACT TERMS.
All contracts for temporary design, consultant and construction management services ("professional services") shall contain the following minimum terms and conditions:
(A) Guaranteed Maximum Costs. Professional service contracts shall provide for a Guaranteed Maximum Cost, including fees, travel and related expenses as necessitated by the project. Any modification to the Guaranteed Maximum Cost must be approved by the department head in writing and approved by the Mayor, the Mayor's designee or the board or commission concerned, as appropriate, and the Controller.
(B) Insurance. Notwithstanding any other provisions of this Chapter, all professional service contracts must conform to the insurance requirements established by the Risk Manager. The Risk Manager shall develop uniform insurance requirements for City contracts subject to this Chapter and shall publish such requirements in the Risk Manager's Manual. The Risk Manager shall review and update such insurance requirements on an annual basis.
(C) Indemnification. All professional services contracts awarded under this Chapter shall require that the contractor fully indemnify the City and County to the maximum extent provided by law, such that each contractor must save, keep, bear harmless and fully indemnify the City and County and any of its officers or agents from any and all liability, damages, claims, judgments or demands for damages, costs or expenses in law or equity that may at any time arise.
This indemnification requirement may not be waived or abrogated in any way for any contract without the recommendation of the City's Risk Manager and the express permission and approval of the Board of Supervisors.
(D) Assignment. No contract shall be assigned except upon the recommendation of the department head concerned and with the approval of the Mayor or the Mayor's designee, relative to the department under the Mayor's jurisdiction or the approval of the board or commission concerned for departments not under the Mayor.
(E) Violations of Chapter 6; False Claims. Every professional service contract performed at the expense of the City and County of San Francisco, or the cost of which is paid for out of monies deposited in the treasury of the City and County, whether directly awarded or indirectly by or under subcontract, subpartnership, subconsultancy or any other arrangement whatsoever, shall incorporate the provisions of Article V (commencing at Section 6.80) of this Chapter, relating to administrative debarments and false claims. The failure to include such reference or incorporation shall not in any way abrogate the rights of the City and County under Article V of this Chapter.
(F) Modifications. Professional service contracts may be modified only by written instrument, granted and approved by the City and County in the same manner the underlying contract was awarded.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 7-02, File No. 011675, App. 1/25/2002)
[Sections 6.43 through 6.59 reserved]
ARTICLE IV:
EXEMPTIONS FROM AND ALTERNATIVES TO COMPETITIVE BIDDINGSec. 6.60. Emergency Repairs, Work and Contracts.
Sec. 6.61. Design-Build.
Sec. 6.62. Job Order Contracts.
Sec. 6.63. Hazardous Materials Abatement Work.
Sec. 6.64. As-Needed Contracts.
Sec. 6.65. Contracting for Elevator, Escalator, Security, Fire Protection or Fire Alarm Systems Inspection, Maintenance and Repair Work.
Sec. 6.66. Convention Facility Public Works.
Sec. 6.67. Comparison of Bids on Basis of Clean Construction.
Sec. 6.68. Integrated Project Delivery.
Sec. 6.69. Department of Public Health Public Work.
Sec 6.70. Real Estate Division Public Work.
SEC. 6.60. EMERGENCY REPAIRS, WORK AND CONTRACTS.
(A) Declaration of Emergency. The Board of Supervisors may declare an emergency and may direct any department head to perform any repair or other emergency work in any manner the Board determines to be in the best interests of the City and County of San Francisco.
(B) Other Determinations of Emergency. In an actual emergency as defined or described below, the repair, reconditioning or other work or contract necessitated by the emergency may be executed by the department head responsible for such work in the most expeditious manner, in accordance with the procedures set forth below.
(C) Emergency Defined. For purposes of this Chapter, an "actual emergency" means a sudden, unforeseeable and unexpected occurrence involving a clear and imminent danger, demanding immediate action to prevent or mitigate loss of or damage to, life, health property or essential public services. An "actual emergency" shall also mean the discovery of any condition involving a clear and imminent danger to public health or safety, demanding immediate action. Examples of an actual emergency may include, but are not limited to, the following:
(1) Weather conditions, fire, flood, earthquake or other unforeseen occurrences of unusual character; or
(2) The breakdown or imminent breakdown of any plant, equipment, structure, street or public work necessitating immediate emergency repair or reconditioning to safeguard the lives or property of the citizens; or the property of the City and County; or to maintain the public health or welfare; and
(a) Including the installation, repair, construction and alteration of crossings and switch work and special work in connection therewith at street and other railway crossings and at street intersections when the same is to be done by or for the Public Transportation Commission; or
(b) Including the installation, repair, construction and alteration of the fire alarm, police communication and traffic signal systems, when the same is to be performed by or for the Department of Telecommunications and Information Services or the Department of Parking and Traffic; or
(c) Including the work of making connections, installing gate valves, installing or transferring services and performing such other work therewith to existing water pipes when the same is to be done by or for the Public Utilities Commission and when such work will leave one or more fire hydrants or water consumers without water; or
(3) Unforeseen occurrences of unusual character resulting in an insufficient number of hospital beds or the lack of hospital beds or the lack of hospital, surgical, mental health or hospital ancillary services so as to leave patients of the City and County without required hospital or medical services.
(D) Approvals Required. If the estimated cost of the emergency work is less than or equal to $250,000 the department head may proceed with the work without additional approvals. If the estimated cost of the emergency work exceeds $250,000, the department head prior to authorizing the commencement of the work, must first secure the approval in writing of the Mayor or the Mayor's designee or the president of the board or commission concerned as appropriate to the department. For all cases where the cost of the emergency work exceeds $250,000 the department head shall also obtain the approval of the Board of Supervisors.
If the emergency does not permit the required approvals to be obtained before work is commenced or the contract entered into, such approvals shall be obtained as soon thereafter as it is possible to do so. In such event, the department head concerned shall notify the Controller immediately of the work involved or the contract entered into and the estimated cost thereof and shall notify the Board of Supervisors not more than seven days after work has been commenced.
(E) Exemptions. Contracts awarded in accordance with this section under emergency circumstances as described and defined above are exempt from the requirements of this Chapter and Chapters 12A, 12B, 12C and 12D.A. However, the department head must comply with the certification requirement of Administrative Code Section 12D.A.15(A)(2). It is, however, the policy of the Board of Supervisors for contracting departments to make every effort to comply with the provisions of Chapters 12A, 12B, 12C and 12D.A. In order to effectuate this policy, the department heads authorized to enter into construction contracts and their staff members shall collaborate with the HRC Director and HRC staff members periodically to create a list of responsible contractors qualified to perform various types of emergency work, making every effort to include qualified, responsible MBE and WBE contractors on that list. The HRC shall be responsible for outreach efforts to make sure that MBE and WBE contractors are aware of the opportunity to be considered for the list. The contract awarding departments or commissions shall be responsible for evaluating and determining whether contractors are responsible and qualified to perform the various scopes of work. The department heads of departments authorized to execute construction contracts shall report quarterly to the Board of Supervisors regarding MBE/WBE inclusion on the list of responsible and qualified contractors for emergency contracts, a description of each emergency contract awarded, the reason why the work was performed under these emergency procedures, and whether the emergency contract was awarded to an MBE or WBE contractor. Such reports shall be referred to a Board committee for public hearing.
(F) Indemnification For Emergency Contracts. Department heads responsible for any emergency work are hereby authorized to (a) waive any requirement that a contractor performing such emergency work indemnify the City and County and/or (b) enter into a contract which provides that the City and County indemnify such contractor, except that the City and County shall in no event indemnify a contractor for the contractor's gross negligence or willful misconduct.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 58-05, File No. 041571, App. 4/1/2005)
SEC. 6.61. DESIGN-BUILD.
The department heads authorized to execute contracts for public work projects are authorized to seek proposals from qualified private entities ("design-builders") for design-build construction and/or financing of public work projects under the following conditions:
(A) Before the request for qualifications is issued, the department head shall determine that a design-build program is necessary or appropriate to achieve anticipated cost savings or time efficiencies, or both, and that such a process is in the public's best interest.
(B) If the proposed public work project is for the use or benefit of a department that is under the jurisdiction of a commission, then such commission shall first approve the solicitation of design-build and/or finance proposals. If the public work project is not for the use or benefit of a department under the jurisdiction of a commission, then the City Administrator must first approve this process.
(C) Pre-Qualification. Department heads shall require that prospective design-builders be pre-qualified to submit proposals on a specific project. The procedure for pre-qualification is as follows:
(1) The department head shall issue a request for qualifications inviting interested parties to submit their qualifications to perform the project. The request for qualifications shall include criteria by which the prospective design-builders will be evaluated during the qualification process. The evaluation criteria shall be based on qualifications and experience relevant to the services needed for the project, including: (i) qualifications to design-build the proposed project; (ii) evidence of financial capacity; (iii) experience on similar projects; (iv) commitment to comply with the goals and requirements of Administrative Code Chapters 12 and 14; (v) ability to collaboratively and cooperatively deliver projects on time and on budget; (vi) liquidated damages for delay and other damages paid on prior projects, and prior litigation history; (vii) reputation with owners of prior projects; (viii) claims history with insurance carriers and sureties; and (ix) compliance with all of the requirements established in the request for qualifications and other criteria that the department head may deem appropriate. The department head shall set objective scoring criteria and incorporate the criteria into any scoring procedure.
(2) The department head shall designate a panel to review pre-qualification responses and interview and rate respondents with respect to the request for qualifications. Only those respondents found to be qualified will be eligible to submit proposals. The list of pre-qualified respondents shall be valid for not more than two years following the date of initial pre-qualification.
(3) The department head may establish a pre-qualification selection process whereby the panel ranks respondents and recommends a shortlist of no fewer than three (3) pre-qualified respondents. The department head may restrict bidding to short-listed respondents. The shortlist of pre-qualified respondents shall be valid for not more than two years following the date of initial pre-qualification.
D. Request for Proposals. The department head shall issue a request for proposals inviting pre-qualified design-builders to submit proposals for the project. The request for proposals shall include a criteria package describing preliminary design criteria and performance criteria for the project, as well as any other information deemed necessary to describe adequately the City's needs for the project.
E. Final Selection Process. The department head may recommend the award of a contract to the responsible bidder submitting the lowest responsive bid. If the award to that bidder is not made for any reason, the department head may recommend the award of a contract to the responsible bidder submitting the next lowest responsive bid, and so forth. The department head may, at his or her sole discretion, conduct any negotiations that are necessary to effectuate the award of a contract.
F. Alternative Final Selection Process. If the project seeks private financing proposals and/or the department head determines that it is in the public's best interest to consider qualifications and/or other subjective criteria (e.g., quality of design proposal) as part of the final selection process, the department head shall issue a request for proposals inviting pre-qualified design-builders to submit design-build proposals, which will be evaluated based upon qualifications and project and/or financing costs.
(1) The department head may request design-builders to create partial designs, which will be evaluated as part of the final selection process. The department head may offer a reasonable stipend to short-listed design-builders to create partial designs. The receipt of a stipend shall be contingent upon a design-builder's proposal being responsive to the request for proposals.
(2) The department head may require short-listed design-builders who are creating partial designs to participate in one or more confidential review meetings with City representatives and/or selection panel members during the proposal preparation period. The purpose of the review meetings will be to ensure that each design-builder's partial design is proceeding in a manner that is consistent with the requirements of the City as set forth in the criteria package. Discussions during review meetings shall be limited to objective elements of the criteria package.
(3) Design-builders submitting private financing proposals shall provide evidence of the commitment of funds necessary to privately finance the proposed projects to completion.
(4) The department head shall designate a panel to evaluate design-build proposals and rank the proposals to determine which provides the overall best value to the City and County in regard to the following criteria: (1) plan for expediency in completing the proposed project; (2) lifecycle cost to the City and County; (3) qualifications to finance the proposed project; (4) quality of design proposal; (5) compliance with the goals set by the Human Rights Commission and requirements of the Administrative Code Chapters 12 and 14; (6) commitment to meet the City hiring goals (e.g., CityBuild or First Source Hiring); (7) if private financing is sought, commitment of funds, cost of funds and terms to the City; and (8) compliance with all the requirements and criteria established by the Department head in the request for proposals. The cost criterion shall constitute not less than sixty-five percent (65%) of the overall evaluation.
(G) Subject to paragraph (K) below, the department head may recommend the award of a contract to the highest-ranked design-builder. If the award to the highest-ranked design-builder is not made for any reason, the department head may recommend the award of a contract to the next highest-ranked design-builder, and so forth. The department head may, at his or her sole discretion, conduct any negotiations that are necessary to effectuate the award of a contract.
(H) The City shall retain the absolute discretion to determine, at any time during the process, not to proceed with any proposed project, which right may be exercised without liability to design-builders for costs incurred during the entire pre-qualification, proposal and negotiation process, and such rights shall be reserved in all requests for qualifications and proposals.
(I) The competitive bid requirements of this Chapter shall not apply to the selection of design-builders under this Section 6.61.
(J) Design-builders shall comply with all applicable requirements set forth in San Francisco Administrative Code Chapters 12 and 14.
(K) All final contracts for a public work project that involve a design-build and/or finance program shall be subject to the award provisions of Article I of this Chapter. If the proposed contract involves a financing program, the Capital Improvement Advisory Committee must review and report on the proposed project before the board, commission, Mayor or his/her designee takes any action with respect to award of the contract.
(L) Procurement of Trade Subcontractors. Department heads may require the selected design-builder to procure trade work contracts through a pre-qualification and competitive bid process, as follows:
(1) Pre-qualification. The department head shall require the design-builder to pre-qualify all trade subcontractors, subject to the approval of the department head. The design-builder shall attempt to establish a pool of no fewer than three pre-qualified subcontractors for each trade package, subject to the approval of the department head.
(2) Competitive Bid. The department head shall require the design-builder to receive sealed bids from the pre-qualified trade subcontractors. The bid security provisions of Section 6.21 will not apply. The design-builder shall award a trade package subcontract to the responsible bidder submitting the lowest responsive bid, except that the design-builder may negotiate and award a portion of the trade package subcontracts as provided in paragraph (3), below. Only those Administrative Code provisions that normally apply to subcontracts will apply to the trade package subcontracts.
(3) The department head may authorize the design-builder to negotiate subcontracts for trade work as appropriate for the project, up to an amount not exceeding seven and one-half percent of the total estimated subcontract costs. The department head shall establish a maximum dollar value for each negotiated trade subcontract as appropriate for the project.
(M) All actions heretofore taken by a department head consistent with the provisions of this section are hereby approved.
(N) All design-build projects that are substantially underway as of the effective date of this Subsection 6.61(N) that do not comply with the mandatory pre-qualification requirements of Subsection 6.61(C) are hereby approved, provided that the applicable department heads shall only consider proposals from qualified design-builders.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 153-00, File No. 000805, App. 6/30/2000; Ord. 58-05, File No. 041571, App. 4/1/2005; Ord. 18-07, File No. 060344, App. 2/9/2007; Ord. 119-08, File No. 080277, App. 7/11/2008)
SEC. 6.62. JOB ORDER CONTRACTS.
The job order contracting system ("JOC") provides for an indefinite quantity contract with a predefined set of bid items that are assigned on a periodic or task order basis for the performance of public work maintenance, repair and minor construction projects. The department heads authorized to execute contracts for public work projects are authorized to utilize JOC according to the procedures set forth below.
(A) Each JOC contract is to be advertised for competitive bids in accordance with the procedures set forth in this Chapter and awarded to the responsible bidder who submits the lowest responsive bid.
(B) The Advertisement For Bids shall include unit prices and detailed technical specifications for each construction task contemplated to be performed under the JOC contract. Each task item shall include direct costs for material, equipment and labor. Construction tasks shall be grouped by trade.
(C) The Advertisement For Bids for a JOC contract shall contain the City's estimate regarding the percentage of work under the JOC contract that will be performed by each trade. The Human Rights Commission shall set goals for MBE/WBE subcontractor participation in accordance with Administrative Code Chapter 12D.A. Calculation of whether a contractor's bid has met the goals will be based on the City's estimate of the amount of work that will be performed by each trade.
(D) Contractor's bid shall identify by trade group which tasks will be performed by contractor and which tasks will be performed under subcontract. Contractor shall identify in its bid all subcontractors to be utilized, including the subcontractors' name, business tax registration certificate number, license number and the location of the place of business of each subcontractor. Contractor agrees that it is qualified for and will perform with its own forces work of all trades for which a subcontractor is not listed in the bid. This paragraph supercedes the listing requirements of Section 6.21(J). Substitutions of JOC subcontractors shall be in accordance with California Public Contract Code Section 4107. Penalties set forth in Administrative Code Sections 6.22 and 6.80 shall apply to JOC contracts for violation of this section.
(E) Contractors submitting bids on the JOC contract shall state in their bids an adjustment on a percentage basis either increasing or decreasing the unit prices for all construction tasks set forth in the bid documents. There may be a single adjustment factor that applies to all tasks. For example, an adjustment factor of 25% below the unit prices stated in the bid documents would be bid as .75. All of the contractor's profit, overhead and indirect costs shall be included in the adjusted unit prices.
(F) The Advertisement For Bids and the contract specifications shall contain a maximum dollar amount of the JOC contract, which maximum amount shall not exceed three million dollars. The cumulative modifications to a JOC contract shall result in a contract sum not to exceed one hundred-fifty percent of the original contract amount.
(G) JOC contracts shall provide for an expiration term of not more than three years, including all modifications.
(H) Projects will be assigned under the JOC contract on a work order basis at the sole discretion of the department head concerned. Except for departments with capital programs over $1 Billion, no work order shall exceed $200,000, including all modifications. For departments with capital programs over $1 Billion, no work order shall exceed $400,000, including all modifications. A department may issue or modify any work order(s) to exceed the foregoing limits only upon the department head's written determination establishing the urgency of the work and the justification for proceeding under this Section 6.62 rather than by formal competitive process.
(I) A contractor who enters into a JOC contract with a particular City department is not eligible during the term of such JOC contract to submit a bid on a subsequent JOC contract advertised by the same contracting department; however, a contractor may submit a bid on a subsequent JOC contract advertised by the same contracting department if the contractor's existing JOC contract will expire in 120 days or fewer of if the contractor has performed work valued by the City in an amount equal to or exceeding 90% of the maximum dollar amount of the existing JOC contract.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 324-00, File No. 001919, App. 12/28/2000; Ord. 58-05, File No. 041571, App. 4/1/2005)
SEC. 6.63. HAZARDOUS MATERIALS ABATEMENT WORK.
When the Director of Public Works (the "Director") determines: (1) that hazardous materials on public property must be expeditiously abated (the "work"); and (2) that there is inadequate time to advertise and competitively bid the work in accordance with this Chapter, then the work may be performed in accordance with the following procedures:
(A) The Department of Public Works shall advertise for and receive proposals from hazardous materials abatement contractors, which proposals shall address the qualifications of the contractors to perform the abatement work. The proposals shall be evaluated according to the requirements of this Chapter and Chapters 12B, 12C and 12D.A, relevant to professional services contracts.
(B) The Department of Public Works shall select a sufficient number of qualified contractors to perform the amount of hazardous materials abatement work anticipated to be required in the upcoming one or more years and enter into master agreements on an "if- and as-needed" basis with those contractors. Each master agreement shall state the maximum total dollar value of work each contractor is authorized to perform during the contract period.
(C) The Department shall seek price quotations for performance of the work from at least three of the contractors with master agreements. The contract for the work will be awarded to the contractor submitting the lowest quotation, except as otherwise provided herein. The Department shall keep a record of such quotations and a register of all awards made thereunder. In the event that the Department is unable to obtain three quotations, the Director shall base the award on the quotation or quotations received. If the Director believes that the public interest would best be served by accepting other than the lowest quotation, he or she is hereby authorized to accept the quotation that in his or her discretion will best serve the public interest. The Director may reject any and all quotations and request new quotations.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99)
SEC. 6.64. AS-NEEDED CONTRACTS.
A department head authorized to execute public work and professional service contracts may issue an Advertisement For Bids for construction services or a request for proposals or qualifications for professional services on an as-needed basis, with definite or indefinite quantities of work. Work shall be assigned on a contract service order basis. None of the requirements of this Chapter or Administrative Code Chapters 12B, 12C or 12D.A are waived for as-needed contracts.
All as-needed contracts shall provide for a not-to-exceed price and an expiration term of not more than five years, including all modifications. However, the department head shall not issue any new contract service order after three years from the date of award. Additionally, the cumulative modifications to an as-needed contract shall result in a contract sum not to exceed one hundred-fifty percent of the original contract amount. Before any item of work is commenced under an as-needed contract, the cost of such work must be certified by the Controller as to the availability of funds. No contract service order or multiple contract service orders for any single public work, whether in one phase or multiple phases, shall cumulatively exceed $200,000, including all modifications. For departments with capital programs over $1 Billion, no contract service order or multiple contract service orders, as described above, shall cumulatively exceed $400,000, including all modifications. A department may issue or modify any contract service order(s) to exceed the foregoing limits only upon the department head's written determination establishing the urgency of the work and the justification for proceeding under this Section 6.64 rather than by formal competitive process.
The department heads authorized to execute public work and professional service contracts shall report quarterly to the Board of Supervisors regarding the department's use of as-needed contracts and the actual amount of participation of MBE and WBE subcontractors or subconsultants that were listed on prime contractors' bid(s) or proposal(s) to determine whether MBE/WBE subcontracting participation goals are being met on as-needed contracts. Such reports shall be referred to a Board committee for public hearing.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 58-05, File No. 041571, App. 4/1/2005)
SEC. 6.65. CONTRACTING FOR ELEVATOR, ESCALATOR, SECURITY, FIRE PROTECTION OR FIRE ALARM SYSTEMS INSPECTION, MAINTENANCE AND REPAIR WORK.
Department heads who are authorized to execute public work contracts under this Chapter are hereby authorized to award contracts for the inspection, maintenance and repair services of existing elevator, escalator, security, fire protection or fire alarm systems ("special services") in accordance with the following procedures:
(A) The department shall award master agreement contracts, on an "if-and-as-needed" basis to special service providers who can establish experience, expertise, and quality of work. A potential special service provider may apply for a master agreement under this section by providing the department with a statement of its experience and qualifications and other information as requested by the department. Within 60 days of receiving such information, the department shall advise the applicant of its eligibility for an award of a master agreement. Master agreements for special services shall conform to the insurance, indemnification and prevailing wage requirements of Section 6.22 of this Chapter. Master agreements shall provide for an expiration term of not more than five years from the date of award, including all modifications.
(B) For performance of specific tasks, the department shall seek price quotations from at least three of the special service providers with master agreements. The department shall issue a contract service order for the work to the provider submitting the lowest quotation, except as provided below. In the event that the department is unable to obtain three quotations, the department head shall base the issuance of the contract service order on the quote or quotes received. If the department head believes that the public interest would best be served by accepting other than the lowest quotation, he or she is hereby authorized to accept the quotation that in his or her discretion will best serve the public interest. The department head may reject any and all quotations and request new quotations.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 58-05, File No. 041571, App. 4/1/2005)
SEC. 6.66. CONVENTION FACILITY PUBLIC WORKS.
When construction work is required for the City-owned convention facilities, such services may be procured in accordance with the following procedures:
(A) Bids will be requested from not fewer than three bidders for a construction contract. The contract will be awarded to the responsible bidder with the lowest responsive bid. A record of all bids received and a register of all awards made under this subsection shall be maintained. In the event three bids cannot be obtained, the award shall be based on the bid or bids received. Any or all bids may be rejected and new bids may be requested.
(B) Authority to undertake the contracting process and enter into contract directly with the contractor may be delegated to the operator/manager of the convention facilities. In such event, the City Administrator or his or her designee shall first review the propriety of the process and shall approve the award of any contract.
(C) In no event shall the award of contracts by the procedures set forth in this subsection exceed the cumulative sum of three million dollars ($3,000,000) in any fiscal year.
Except as provided herein, any contract awarded under this subsection must comply with this Chapter and with Chapters 12B, 12C and 12D.A.
All of the contracts awarded and work performed under this subsection shall be reported to the Board of Supervisors on a quarterly basis.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99)
SEC. 6.67. COMPARISON OF BIDS ON BASIS OF CLEAN CONSTRUCTION.
To minimize the adverse impact to the surrounding environment, Department heads authorized to execute contracts for public works are authorized to compare bids on the basis that the work will be performed utilizing off-road equipment and off-road engines that meet or exceed the standards for Clean Construction set forth in Section 6.25 ("Clean Construction Comparative Bidding"). Department heads are particularly encouraged to utilize Clean Construction Comparative Bidding wherever the project is located within 500 feet of a Sensitive Site and the construction activity will occur for more than 20 days. The Department head or officer calling for bids shall specify in the Advertisement for Bids the monetary value that the Department will attribute to Clean Construction and shall evaluate responsive bids accordingly. Any contract awarded in consideration, in whole or in part, on the basis of Clean Construction Comparative Bidding shall include provisions (1) requiring the contractor to certify that all work has been undertaken in compliance with the requirements for Clean Construction set forth in Section 6.25, (2) providing procedures to request a waiver of the biodiesel fuel and/or emissions standards as to specific, necessary equipment as set forth in Section 6.2(b)(3)(D), and (3) providing for liquidated damages in the amount of $100.00 per day per vehicle operated at the project site in violation of Clean Construction standards. Except as provided herein, contracts awarded on the basis of Clean Construction Comparative Bidding shall be subject to all provisions of Chapter 6 of the Administrative Code.
(Added by Ord. 70-07, File No. 061432, App. 4/2/2007)
SEC. 6.68. INTEGRATED PROJECT DELIVERY.
Integrated project delivery is an approach to the procurement of construction services whereby a construction manager/general contractor ("CM/GC") is retained during the design process to review and provide comments as to the constructability of the Architect/Engineer's design within the established budget. The department heads authorized to execute contracts for public work projects are authorized to seek proposals from qualified CM/GCs for construction of public work projects using an integrated project delivery under the following conditions:
(A) Before the request for qualifications is issued, the department head shall determine that an integrated project delivery is necessary or appropriate to achieve anticipated cost savings or time efficiencies, or both, and that such a process is in the public's best interest.
(B) If the proposed public work project is for the use or benefit of a department that is under the jurisdiction of a commission, then such commission shall first approve the solicitation of integrated project delivery proposals. If the public work is for the use or benefit of a department not under the jurisdiction of a commission, then the City Administrator must first approve this process.
(C) Pre-qualification. Department heads shall require that prospective proposers be pre-qualified to submit proposals on a specific project. The procedure for pre-qualification is as follows:
(1) The department head shall issue a request for qualifications inviting interested parties to submit their qualifications to perform the project. The request for qualifications shall include criteria by which the prospective proposers shall be evaluated. The evaluation criteria shall be based on qualifications and experience relevant to the services needed for the project, including: (i) ability to perform required pre-construction and construction phase services; (ii) evidence of financial capacity; (iii) experience on similar projects; (iv) commitment to comply with the goals and requirements of Administrative Code Chapters 12 and 14; (v) ability to collaboratively and cooperatively deliver projects on time and on budget; (vi) liquidated damages for delay and other damages paid on prior projects, and prior litigation history; (vii) reputation with owners of prior projects; (viii) claims history with insurance carriers and sureties; and (ix) compliance with all of the requirements established in the request for qualifications and other criteria that the department head may deem appropriate. The department head shall set objective scoring criteria and incorporate the criteria into any scoring procedure.
(2) The department head shall designate a panel to review pre-qualification responses and interview and rate respondents with respect to the request for qualifications. Only those respondents found to be qualified will be eligible to submit proposals. The list of pre-qualified respondents shall be valid for not more than two years following the date of initial pre-qualification.
(D) Request for Proposals. The department head shall issue a request for proposals inviting pre-qualified CM/GCs to submit competitive cost proposals for the project. The request for proposals shall include information describing the scope of pre-construction and construction phase services for the project. The request for proposals shall request the following minimum cost information from each proposer: (i) fees for pre-construction services and (ii) fees for construction phase services, including overhead, profit and general conditions.
(E) Final Selection Process. The department head may recommend the award of a contract to the responsible bidder submitting the lowest responsive bid. If the award to that bidder is not made for any reason, the department head may recommend the award of a contract to the responsible bidder submitting the next lowest responsive bid, and so forth. The department head may, at his or her sole discretion, conduct any negotiations that are necessary to effectuate the award of a contract.
(F) The City shall retain the absolute discretion to determine, at any time during the process, not to proceed with any proposed project, which right may be exercised without liability to CM/GCs for costs incurred during the entire pre-qualification, proposal and negotiation process, and such rights shall be reserved in all requests for qualifications and proposals.
(G) The bid security and subcontractor listing requirements of Section 6.21 will not apply to the selection of CM/GCs under this Section 6.68. Any resulting contract with a CM/GC shall comply with section 6.22.
(H) Procurement of Trade Subcontractors. Department heads shall require the selected CM/GC to procure trade work contracts through a pre-qualification and competitive bid process, as follows:
(1) Pre-qualification. The department head shall require the CM/GC to pre-qualify all trade subcontractors, subject to the approval of the department head. The CM/GC shall attempt to establish a pool of no fewer than three pre-qualified subcontractors for each trade package, subject to the approval of the department head.
(2) Competitive Bid. The department head shall require the CM/GC to receive sealed bids from the pre-qualified trade subcontractors. The bid security provisions of section 6.21 will not apply. The CM/GC shall award a trade package subcontract to the responsible bidder submitting the lowest responsive bid, except that the CM/GC may negotiate and award a portion of the trade package subcontracts as provided in paragraph (3), below. Only those Administrative Code provisions that normally apply to subcontracts will apply to the trade package subcontracts.
(3) The department head may authorize the CM/GC to negotiate subcontracts for trade work as appropriate for the project, up to an amount not exceeding seven and one-half percent of the total estimated subcontract costs. The department head shall establish a maximum dollar value for each negotiated trade subcontract as appropriate for the project.
(I) All actions heretofore taken by a department head consistent with the provisions of this section are hereby approved.
(Ord. 119-08, File No. 080277, App. 7/11/2008)
SEC. 6.69. DEPARTMENT OF PUBLIC HEALTH PUBLIC WORK.
For public work necessary to maintain or repair health facilities under the jurisdiction of the Health Commission, the Department of Public Health (DPH) may award master agreement contracts, for work to be performed on an "if-and-as-needed" basis, to qualified construction contractors in conformance with the following procedures:
(A) Contract Award. The Director of DPH may award master agreement contracts, on an "if-and-as-needed" basis to construction contractors who can establish all of the licensing, qualifications, experience, and certifications, as required by the Director of DPH. A contractor may apply for a master agreement under this Section by providing DPH with a statement of its experience and qualifications and other information as requested by DPH. Within 60 days of receiving such information, DPH shall advise the applicant of its eligibility for an award of a master agreement.
(B) Contract Terms. Master agreements awarded under this Section shall conform to the requirements of Section 6.22 of this Chapter and shall conform to Administrative Code Chapter 14B, as applicable. Master agreements shall provide for an expiration term of not more than three years from the date of award, including all modifications. All master agreements shall provide for a maximum total dollar value of work each contractor is authorized to perform during the contract period. No master agreement may be modified to exceed 150% of the original contract amount. Master agreements shall contain no minimum dollar amount. Master agreements shall provide that DPH may assign work on a task order basis, "if-and-as-needed, " through competition among master agreement contractors.
(C) Task Order Competitive Solicitation. To assign work under master agreement contracts, DPH shall solicit quotations from no fewer than three qualified master agreement contractors. Solicitations shall conform to Section 6.21 of this Chapter, except that neither a published advertisement nor a bid bond shall be required. Solicitations shall include a description of the proposed task order scope of work, including plans or specifications, if any, and may include provisions for liquidated damages for delay if and as appropriate to the particular project. Responsive quotations must include subcontractor listing, if any, in conformance with Section 6.21(A)(9).
(D) Task Order Award. The Director of DPH shall award a task order for the performance of work under a master agreement to the contractor submitting the lowest responsive quotation. In the event that DPH is unable to obtain three quotations, the Director of DPH shall base the award on the quotation or quotations received. If the Director of DPH believes that the public interest would best be served, by accepting other than the lowest quotation, he or she is hereby authorized to accept the quotation that in his or her discretion will best serve the public interest.
(E) Task Order Terms. No task order or multiple task orders for any single public work, whether in one phase or multiple phases, shall cumulatively exceed $400,000.00, including all modifications. The Director of DPH may issue or modify a task order to exceed the foregoing imitation only upon the Director's written determination establishing the urgency of the work and the justification for proceeding under this Section, rather than through the Department of Public Works, in conformance with Section 6.2 of this Chapter.
(Added by Ord. 224-08, File No. 081084, App. 10/15/2008)
SEC. 6.70. REAL ESTATE DIVISION PUBLIC WORK.
For public work necessary to maintain or repair facilities and real property under the jurisdiction of the Real Estate Division ("RED"), RED may award master agreement contracts for special services under Administrative Code Section 6.65, or may award master agreement contracts for work to be performed on an "if-and-as-needed" basis, to qualified construction contractors in conformance with the following procedures:
(A) Contract Award. The Director of RED may award master agreement contracts, on an "if-and-as-needed" basis to construction contractors who can establish all of the licensing, qualifications, experience, and certifications, as required by the RED Director. A contractor may apply for a master agreement under this Section by providing RED with a statement of its experience and qualifications and other information as requested by RED. Within 60 days of receiving such information, RED shall advise the applicant of its eligibility for an award of a master agreement.
(B) Contract Terms. Master agreements awarded under this Section shall conform to the requirements of Section 6.22 of this Chapter and shall conform to Administrative Code Chapter J4B, as applicable. Master agreements shall provide for an expiration term of not more than three years from the date of award, including all modifications. All master agreements shall provide for a maximum total dollar value of work each contractor is authorized to perform during the contract period. No master agreement may be modified to exceed 150% of the original contract amount. Master agreements shall contain no minimum dollar amount. Master agreements shall provide that RED may assign work on a task order basis, "if-and-as-needed," through competition among master agreement contractors.
(C) Task Order Competitive Solicitation. To assign work under master agreement contracts, RED shall solicit quotations from no fewer than three Qualified master agreement contractors. Solicitations shall conform to Section 6.21 of this Chapter, except that neither a published advertisement nor a bid bond shall be required. Solicitations shall include a description of the proposed task order scope of work including plans or specifications, if any, and may include provisions for liquidated damages for delay if and as appropriate to the particular project. Responsive quotations must include subcontractor listing, if any, in conformance with Section 6.21(A)(9).
(D) Task Order Award. The Director of RED shall award a task order for the performance of work under a master agreement to the contractor submitting the lowest responsive quotation. In the event that RED is unable to obtain three quotations, the Director of RED shall base the award on the quotation or quotations received. If the Director of RED believes that the public interest would best be served by accepting other than the lowest quotation, he or she is hereby authorized to accept the quotation that in his or her discretion will best serve the public interest.
(E) Task Order Terms. No task order or multiple task orders for any single public work, whether in one phase or multiple phases, and whether under this Section or for Special Services under Section 6.65. shall cumulatively exceed $400,000, including all modifications. The Director of RED may issue or modify a task order to exceed the foregoing limitation only upon the Director's written determination establishing the urgency of the work and the justification for proceeding under this Section, rather than through the Department of Public Works, in conformance with Section 6.2 of this Chapter.
(Added by Ord. 309-08, File No. 081286, App. 12/16/2008)
[Sections 6.71 through 6.79 reserved] Chapter 6; False Claims; Procedures for Debarment; Monetary Penalties
ARTICLE V:
VIOLATIONS OF ADMINISTRATIVE CODE CHAPTER 6; FALSE CLAIMS; PROCEDURES FOR DEBARMENT; MONETARY PENALTIESSec. 6.80. Violations and False Claims; Debarment and Monetary Penalties.
Sec. 6.81. Collusion in Contracting.
Sec. 6.82. Procedures for Administrative Debarment.
Sec. 6.83. Assessment of Monetary Penalties for False Claims: Investigation and Prosecution.
SEC. 6.80. VIOLATIONS AND FALSE CLAIMS; DEBARMENT AND MONETARY PENALTIES.
Any contractor, subcontractor, supplier, consultant or subconsultants who fails to comply with the terms of its contract with the City and County; or who violates any provision of Administrative Code Chapter 6; or who fails to abide by any rules and/or regulations adopted pursuant to Administrative Code Chapter 6; or who submits false claims; or who has violated against any government entity a civil or criminal law relevant to its ability to perform under or comply with the terms and conditions of a contract with the City and County, may be declared an irresponsible bidder or an unqualified consultant and debarred according to the procedures set forth in Chapter 28 of this Administrative Code. Additionally, any contractor, subcontractor, supplier, consultant or subconsultant who submits a false claim to the City and County may also be subject to monetary penalties, investigation and prosecution as described below.
In the event that such a violation of this Chapter, including the submission of one or more false claims, comes to the attention of a board or commission or department head responsible for public work, the department head must investigate the matter. The department head must report the findings of any such investigation by letter to the Board of Supervisors within 30 days of the completion of the investigation. The investigation letter to the Board of Supervisors must state the name of the contractor, subcontractor, supplier, consultant or subconsultant; the nature of the violation; the results of the investigation; and the department head's plan for addressing the violation, if any. A hearing shall also be called in the Audit Committee of the Board of Supervisors to report on this investigation.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 324-00, File No. 001919, App. 12/28/2000; Ord. 7-02, File No. 011675, App. 1/25/2002; Ord. 8-04, File No. 031503, App. 1/16/2004)
SEC. 6.81. COLLUSION IN CONTRACTING.
If, at the determination of the Mayor, the department head who executed the construction or professional services contract or the board or commission who awarded such contract, and pursuant to the debarment procedures set forth below, any party or parties to whom a contract has been awarded has been guilty of collusion with any officer or representative of the City and County, or any other party or parties, in the submission of any bid or in preventing of any other being made, or in knowingly receiving preferential treatment by any officer or an employee of the City and County, then any contract so awarded, if not completed, may be declared null and void by the Board of Supervisors on the recommendation of the Mayor, department head or the board or commission concerned, and no recovery shall be had thereon. The department head concerned may then readvertise for bids for the uncompleted portion of the work. The matter may also be referred to the City Attorney for such action as may be necessary. Any party or parties guilty of such collusion shall not be permitted to participate in or to bid on any future public work, improvement or purchase to be made by the City and County.
(Added by Ord. 286-99, File No. 991645, App. 11/5/99)
SEC. 6.82. PROCEDURES FOR ADMINISTRATIVE DEBARMENT.
Notwithstanding and not exclusive or preclusive of any pending or contemplated legal action, any contractor, subcontractor, supplier, consultant or subconsultant directly or indirectly subject to the provisions of this Chapter may be determined irresponsible and disqualified from contracting with the City and County of San Francisco in accordance with the provisions of Chapter 28 of this Administrative Code.