HomeMy WebLinkAboutItem 30 - Resolution Establishing Alternative Public Works Construtcion Delivery Methoda Conflict-of-Interest PolicyPublic Works Agency
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Item # 30
City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
January 21, 2025
TOPIC: Alternative Public Works Construction Delivery Method Conflict of Interest Policy
AGENDA TITLE
Resolution Establishing a Conflict -of -Interest Policy Covering Alternative Public Works
Construction Delivery Methods Including Design -Build and Construction Manager At -
Risk Projects (No Fiscal Impact)
RECOMMENDED ACTION
Adopt a Resolution establishing a conflict -of -interest policy covering alternative public
works construction delivery methods including design -build and construction manager
at -risk projects, as allowed for in the City Charter and Santa Ana Municipal Code
Chapter 33.
RESOLUTION NO. 2025-XXX entitled A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF SANTA ANA ESTABLISHING A CONFLICT -OF -INTEREST POLICY
COVERING DESIGN -BUILD AND CONSTRUCTION MANAGER AT RISK PROJECTS
GOVERNMENT CODE §84308 APPLIES: No
DISCUSSION
As a Charter City, the City of Santa Ana may determine the most appropriate project
delivery methods for Public Works Projects. Traditionally, the City utilizes the design -
bid -build approach. This is a process wherein staff or a firm initially performs the design
phase services. Subsequent to the completion of the design, the City bids out the
construction portion of the project and awards the contract to the lowest responsible
bidder. This design -bid -build process is appropriate for most of the City's Public Works
Projects, however complex and time -sensitive projects suffer from this approach as the
proposer's qualifications, technical abilities, and ingenuity of construction means and
methods are not decisive factors. Alternative delivery methods such as Design -Build
and Construction Manager At -Risk (CMAR) are currently permitted under the Santa Ana
Municipal Code (SAMC) and are beneficial to the City's ability to deliver quality public
projects in an efficient manner. Adoption of the proposed Resolution will establish a
conflict of interest policy for alternative project delivery methods to ensure that the
procurement process is fair and yields competitive pricing from highly qualified firms.
There are several advantages in using alternative project delivery processes for certain
Alternative Public Works Construction Delivery Method Conflict of Interest Policy
January 21, 2025
Page 2
projects. Some of the advantages include:
• Enhanced design quality due to contractor involvement in the design process
• For design -build, a single point of accountability as the same firm is responsible for
both the design and construction of the project
• Fewer change orders
• Fewer claims
• Reduced delivery time as design and construction can overlap
• Higher -quality construction work
• Greater cost certainty
• Lower overall project delivery cost
Design Build
Design -Build services combine professional design and construction services into a
single contract with one vendor or team of vendors. This method has been popular in
the private -sector and federal government sectors for decades and has been used for
many public agency contracts in California. Moreover, legislation passed in the year
2000 which allowed certain General Law Cities to use Design -Build, and subsequently
the legislature expanded Design -Build authority to be available for all General Law
Cities. In 2014, the laws allowing local agencies, including General Law Cities, to use
Design -Build were consolidated and codified at Public Contract Code Section 221060 et
seq. Various agencies, including a number of charter cities, have used a Design -Build
variation known as Progressive Design -Build, which maximizes innovation by selecting
the Design -Builder at the earliest feasible stage of the project. For Progressive Design -
Build projects, certain pricing elements may be set based on the Design -Builder's
original proposal, but the price for construction work is negotiated after the design
reaches an appropriate level. Additionally, California legislature has adopted statutes
specifically allowing the use of Progressive Design -Build, including a law that passed in
2021, codified at Public Contract Code Section 10198 et seq.
Construction Manager at Risk
The CMAR method involves procurement of a construction manager to provide
preconstruction services during the design phase of the project, including providing
input on the design, conducting site investigations, and providing construction services
during the construction phase of the project. Once the design reaches an appropriate
level, the contractor prices the construction work, including obtaining competitive bids
from subcontractors. Then, the agency conducts a cost evaluation and determines
whether to proceed with construction. Although not yet authorized for use for General
Law Cities, CMAR has been used by Charter Cities, and the legislature has specifically
authorized its use by various state and local agencies, including laws codified at Public
Contract Code Section 20146 et seq. and Public Utilities Code Section 100150 et seq.
As with the Design -Build laws, the CMAR statutes include provisions addressing
compliance with the subcontractor listing law.
Alternative Public Works Construction Delivery Method Conflict of Interest Policy
January 21, 2025
Page 3
Conflict of Interest Policy
One of the requirements to utilize Design -Build that applies to General Law Cities is that
they develop and implement guidelines and a policy specifically related to conflicts of
interest. While this requirement likely does not apply to Santa Ana as a Charter City, it is
good public policy for alternative construction delivery methods. As such, a conflict -of -
interest policy is proposed to be adopted by Resolution (Exhibit 1). The City's Conflict -
of -Interest policy pertaining to Public Works projects where Design -Build or CMAR is
used includes restrictions to avoid situations where consultants working for the City or
stakeholders may be biased or lack objectivity in performing their work; and to avoid
situations where a team proposing for the Design -Build or CMAR contract has an unfair
competitive advantage. The proposed Policy addresses the responsibilities of the City
as well as contractors that may propose on City Design -Build and CMAR projects,
including their subcontractors and suppliers.
Proposed Resolution
City Charter permits the City Council to allow use of alternative procurement processes
by ordinance. The proposed Resolution would establish a Conflict -of -Interest policy
covering Design -Build and CMAR processes. Nothing in the Resolution or Policy
reduces or eliminates the requirement for contractors to pay prevailing wage on City
projects or be subject to the City's Community Workforce Agreement.
Adoption of this Resolution does not obligate the City to use alternative processes. The
City would be able to use the Design -Build or CMAR method if staff determined that
utilizing such process would be beneficial and likely result in reduced costs or a
shortened construction period. Staff recommends adoption of the proposed resolution to
ensure that the procurement process is fair and yields competitive pricing from highly
qualified firms.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
There is no fiscal impact associated with this action.
EXHIBIT(S)
1. Resolution Approving the Conflict -of -Interest Policy Covering Design -Build and
Construction Manager at Risk Projects
Submitted By: Nabil Saba, P.E., Executive Director - Public Works Agency
Approved By: Alvaro Nunez, City Manager
EXHIBIT 1
RESOLUTION NO. 2025-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA ESTABLISHING A CONFLICT -OF -INTEREST
POLICY COVERING DESIGN -BUILD AND
CONSTRUCTION MANAGER AT RISK PROJECT
WHEREAS, The City of Santa Ana ("City") is authorized by its Charter and
Ordinance No. NS-2502 to utilize the design -build and construction manager at risk project
delivery methods for public works construction projects; and
WHEREAS, While the City is a charter city and not subject to Section 22162(c) of
the Public Contract Code, which would otherwise require the City to adopt a standard
organizational conflict -of -interest policy applicable to design -build projects as a condition
of utilizing the design -build project delivery method, adopting such a conflict -of -interest
policy promotes good government and sound contracting principles; and
WHEREAS, It is also in the public interest to adopt a conflict -of -interest policy for
construction manager at risk projects.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. Recitals. The Recitals set forth above are true and correct and are
incorporated into this Resolution by this reference.
Section 2. Conflict -of -Interest Policy. Consistent with Public Contract Code Section
22162(c), the City hereby adopts the "City of Santa Ana Conflict -of -Interest Policy Covering
Design -Build and Construction Manager at Risk Projects" attached hereto as Exhibit A and
incorporated herein by this reference.
Section 3. This Resolution shall take effect immediately upon its adoption by the City
Council, and the City Clerk shall attest to and certify the vote adopting this Resolution.
ADOPTED this day of
2025.
Valerie Amezcua
Mayor
Resolution No. 2025-XXX
Page 1 of 3
APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
By:
Jonathan T. Martinez
Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
Resolution No. 2024-XXX
Page 2 of 3
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, Jennifer L. Hall, City Clerk, do hereby certify the attached Resolution No. 2025- to
be the original resolution adopted by the City Council of the City of Santa Ana on
, 2025.
Date:
City Clerk
City of Santa Ana
Resolution No. 2025-XXX
Page 3 of 3
City of Santa Ana
kl-
Executive Director's Authorization
Public Works Agency
. Policies and Procedures
4�
Nabil Saba, P.E.
Section:
ENGINEERING SERVICES
Subject:
Date
Number
j
PWA ES-XX
Conflict of Interest Policy Covering
Design -Build and Construction Manager at
Risk Projects
Purpose
To clarify the City of Santa Ana's ("City") position on potential conflicts of interest
that may arise when consultants or contractors (collectively, "Consultant") perform
work for the City or stakeholders relating to potential design -build or construction
manager at risk ("CMAR") projects.
II. Background
Organizational conflicts of interest can occur when, because of existing or
planned activities or because of relationships with other entities, the Consultant
is unable or potentially unable to render impartial assistance or advice to the City;
the Consultant's objectivity in performing the contract work is or might be
otherwise impaired; or the Consultant's acting as a proposer ("Proposer") or
otherwise participating on a team proposing for a design -build or CMAR project
results in an unfair competitive advantage.
The California Board For Professional Engineers And Land Surveyors ("Board")
provides additional guidance and has established conflict -of -interest rules applicable
to those professionals licensed by the Board (see Board Rules 475 and 476).
These rules require full disclosure when a licensee has any business association or
financial interest that may influence his or her judgment in connection with the
performance of professional services and when a licensee provides professional
services for two or more clients on a project or related project. City and Proposers
must also comply with certain California laws and regulations, including without
limitation the California Political Reform Act, Government Code§ 1090 et seq., and
with applicable federal requirements for projects that receive federal funding.
The policies and guidelines concerning the organizational conflicts of interest
found herein will be specified or referenced in the procurement package as well
as any contract for the engineering/design services, inspection, or technical
support in the administration of the projects.
Resolution of conflict -of -interest issues is ultimately at the sole discretion of the
City. The City reserves the right to cancel or amend the resulting contract(s) if a
successful Proposer failed to disclose a potential conflict, which it knew or
should have known about, or if a Proposer provided information in response to
an inquiry from the City that is false or misleading.
After award, conflict -of -interest guidelines and policy shall continue to be
monitored and enforced. If an organizational conflict of interest is discovered after
award, the Proposer must make an immediate and full written disclosure to the
City that includes a description of the action that the Proposer has taken or
proposes to take to avoid or mitigate such conflicts. If an organizational conflict of
interest is determined to exist and the Proposer was aware of the organizational
conflict of interest prior to award of the contract and failed to disclose it, the City
may terminate the contract with the Proposer for material breach. If the Proposer
is terminated, the City assumes no obligation, responsibility, or liability to
reimburse all or part of the costs incurred or alleged to have been incurred by the
Proposer.
III. Policy
The following approach to conflicts of interest will apply to City procurements relating
to City design -build and CMAR projects:
1. Grounds for Disqualification of Proposer
A Consultant or other firm or individual, will not be allowed to act as a
Proposer or to join a design -build or CMAR team for a project if, without
limitation, any of the following is true:
a) The Consultant is the City's designated owner advisor for the project.
b) The Consultant has performed services relating to the project
either as a prime contractor to the City or as a subconsultant or
subcontractor.
c) The Consultant has assisted the City in managing or is assisting
in the management of the design -build project, including the
preparation of the Request for Qualifications ("RFQ") and/or Request
for Proposals ("RFP") language or evaluation criteria.
d) The Consultant has performed preliminary design services for the
project, including, but not limited to, facility layouts, treatment selection,
process design selection, preliminary process design, geometric layouts,
bridge -type selection, and preliminary bridge design.
e) The Consultant performed work relating to the project for other
project stakeholders.
f) The Consultant has performed work on a previous contract that
specifically excludes them from participating as a Proposer or joining a
design -build or CMAR team on the project.
g) The Consultant is under contract with any other entity or
stakeholder to perform oversight on the project.
h) The City determines that other potential conflicts of interest not
mentioned above exist for the firm or individual (e.g., employee
changing companies, merger/acquisitions of firms, property ownership,
business arrangements, financial interest) that cannot be mitigated so
as to avoid the conflict.
Notwithstanding the foregoing, the City may permit a Consultant to
participate on a Proposer team if the Consultant's contract to perform work
described above has concluded and the City determines, in its sole
discretion, that it does not give rise to an organizational conflict of interest.
This exception does not apply to Consultants described in items (a), (c), (f)
or (g) above.
Proposers should be aware that a conflict of interest may also exist where a
Consultant has provided services as described above on a related project
(for example, a separate project that is part of the same program). This
may be due to overlapping limits, interfaces or coordination efforts between
the projects, or because the Consultant provided general services to the
City. Under such circumstances, a Proposer must obtain permission under
Section 2 in order to include the Consultant on its team.
2. Requirements for Proposers With Potential Conflicts of Interest
A Proposer who may have potential conflicts of interest in relation to a project, or
who wishes to include a member on its team who may have potential conflicts of
interest, must:
a) Conform to applicable federal and state conflict -of -interest rules
and regulations including without limitation, the California Political
Reform Act, the California Government Code§ 1090 et seq., the federal
Copeland "Anti- Kickback" Act and federal conflict -of -interest rules set
forth in federal funding agency's administrative grants and cooperative
agreement regulations. Federal conflict -of -interest rules and
regulations shall only apply where the project receives federal funding.
b) Disclose all relevant facts relating to past, present or planned
interest(s) of the Proposer's team (including the Proposer, Proposer's
proposed consultants, contractors, subconsultants and/or subcontractors
and their respective chief executives, directors and key personnel) which
may result or could be viewed as an organizational conflict of interest in
connection with the design -build or CMAR procurement, including present
or planned contractual or employment relationships with any current
employee of the City.
c) Disclose, in the statement of qualifications or proposal, as applicable,
all of the work performed in relation to the project being procured under
the RFQ and RFP.
d) Provide all records of the work performed in relation to the project
to the City so that relevant information can be evaluated and made
available to all potential design -build teams, if necessary.
e) Ensure that the Proposer's or its team member's contract with any
entity to perform services related to the project has expired or has been
terminated.
f) Identify proposed remedial measures to mitigate any potential
conflicts identified.
3. City Determination Regarding Conflicts of Interest
Upon review of the information provided by the Proposer as described above, the
City Manager will determine, in his or her sole discretion, if the Proposer has an
organizational conflict of interest. Decisions of the City Manager regarding
organizational conflicts of interest may be appealed to the City Council. The
decision of the City Council shall be final with respect to the disposition of the
organizational conflict of interest and is non -appealable.
4. Construction Inspection Services
The successful Proposer or firms affiliated with the successful Proposer are
prohibited from competing on any agreement to provide construction inspection
services for the project. An affiliated firm is one which is subject to the control of
the same persons, though joint ownership or otherwise. No subconsultants who
provided design services in connection with the project shall be eligible to
compete for any agreement to provide construction inspection services for the
project.
Notes -- The foregoing is provided by way of example, and shall not constitute a
limitation on the obligations of the Proposer in relation to organizational conflicts
of interest.