SUBCONTRACTING LAWS and CITY REQUIREMENTS Okay, so there are rules. It seems like the rules are too complicated. (Not really. It’s just easier to break things down and look at it from a different perspective. ) What is the intent of the California Public Contract Code and the City’s requirements under the Master General Conditions? (The intent is to protect the rights of both Prime and Subcontractors while looking after Public monies. ) Do I have to be a lawyer to run my job? (NO. But you DO need to know some important principles when involved with Public Funds. We have some help for you here. ) General Services Division / Special Research & Investigation Section
Subcontracting Basic Contract Breakdown Prime’s Participation Level Mandatory Subcontracting Minimum (MSM) for project (Set either by Law or Awarding Authority Part of Sealed Bid. – Prime must selfperform this percentage of the work If you have taken our BIDDERS’ INFO Tutorial, you will recognize this chart. Prime is contractually obligated Discretion of the Prime If you haven’t checked out “BIDDERS’ INFO, please do so. General Services Division / Special Research & Investigation Section Additional Subcontracting Opportunities Subject to specific limitations on subcontract amount
Subcontractor Substitutions Subcontractor Replacement A subcontractor is bidlisted for concrete work on a project and he has been approved to work. After performing some of the work, he is unable to continue or withdraws from the project (for various types of reasons) General Services Division / Special Research & Investigation Section This creates the need to substitute him with a sub that can finish the remaining work.
Subcontractor Substitutions Subcontractor Replacement (Cont’d) Often, and particularly in this case since it’s concrete work, the critical path of the project is now in some trouble. There is no time to lose! If you already know the substitution process, your biggest problem will be to get somebody in to replace Joe instead of struggling with figuring out the process at the last minute. General Services Division / Special Research & Investigation Section
Subcontractor Substitutions Penalties for Non-Compliance TOTALLY COOL !! GREAT NEWS ! ! We just saved a bunch of money !! Only if you just got a great deal on your car insurance ! General Services Division / Special Research & Investigation Section
Subcontractor Substitutions Subcontract Amounts Reviewed In the “Bidder Info” Tutorial, we go over these principles in detail. Make sure and take a look. But here a couple important tips to remember. (It’s why our dog is having too much fun…) If a Prime bid-lists a subcontractor, the total amount specified in the bid must be paid to the subcontractor by the end of the project. If the prime has to replace the subcontractor, the remainder of the original bid-listed amount must be paid out to whomever is the replacement. If Joe leaves the job unfinished, The substituting sub is paid the remainder of the bid-listed amount. NO LESS!! General Services Division / Special Research & Investigation Section
Subcontractor Substitutions Subcontract Amounts Reviewed GREAT NEWS ! ! We just saved a bunch of money !! TOTALLY COOL !! Actually, not cool at all. Even if there are the best of intentions, this is not permissible. The Public sees things a little differently. If the City is contracted to pay $250, 000 for somebody to perform concrete work, then that somebody is supposed to get the money. If it’s a subcontractor and/or a substitute, then the prime can’t keep any savings. Lowering bid-listed amounts on a Public project is illegal without a change in scope from the owner (City). If you have a situation where you find that you will not have to pay your sub all of what you bid for, you need to address this with the City before Project Closeout. A cost savings, even from an agreeable sub, still belongs to the owner. Protect yourself from penalties ! ! General Services Division / Special Research & Investigation Section
Subcontractor Substitutions Subcontract Amounts Reviewed BID-LISTED AMOUNT WORK COMPLETED WORK REMAINING $ 250, 000 + BID-LISTED AMOUNT $ 100, 000 $ 150, 000 $ 250, 000 SUBSTITUTE SUB’s AMOUNT $ 150, 000 BALANCE the BOOKS ! General Services Division / Special Research & Investigation Section
Subcontractor Substitutions Penalties for Non-Compliance DURING THE PROJECT: Let BCA S R I help you over the humps when we can. We will do everything possible to keep your project on track and on schedule. This means time and money to you… and to us, your customer, as well For more information about the subcontracting regulations and requirements, take a look at the information under: BCA Subcontractor Outreach and Enforcement General Services Division / Special Research & Investigation Section
The INSPECTOR of PUBLIC WORKS is the Designated Authority on ALL subcontracting matters for the BOARD of PUBLIC WORKS The Required Procedures for obtaining approval of subcontractors for work on Public Projects are not complex. They are, however, strictly enforced so that the rights of subcontractors and prime contractors alike are protected, as well as the Public’s interest. This tutorial is designed show you the “nuts and bolts” of bidding with regard to your employment of subcontractors on City Projects, as well as the procedures for obtaining approvals for your subcontract issues. General Services Division / Special Research & Investigation Section
Subcontractor Substitutions Format & Procedures Cont’d Requests for approval of all subcontractors, or request for substitution of a subcontractor, shall be made in writing to the Inspector of Public Works at the following address: John L. Reamer, Jr. Inspector of Public Works 1149 South Broadway Los Angeles, California 90015 Attn. H. Russell Strazzella, Chief General Services Division / Special Research & Investigation Section
Subcontractor Substitutions Format & Procedures Cont’d Requests for subcontractor substitutions must contain the following information: Project Name Project Work Order Number (W. O. #) Bid-listed Subcontractor’s Name Bid-listed Subcontractor’s letter of withdrawal (if it consents) giving reasons. Prime’s basis for request (if no letter of withdrawal) Replacement Subcontractor’s business address Replacement Subcontractor’s business phone number Replacement Subcontractor’s business FAX number ( when applicable) Replacement Subcontractor’s status ( OBE / MBE / WBE / DBE ) Replacement Subcontractor’s State of California Contractor License Number Replacement Subcontractor’s City of Los Angeles Business Tax Receipt Certificate (BTRC) Dollar amount of work to be performed by the subcontractor Description of the work to be performed by the subcontractor “MINI” Good Faith Effort Documentation Remember !! If you don’t provide us with the required information, we cannot process your request. This can create a delay for you. General Services Division / Special Research & Investigation Section
Subcontractor Substitutions Substitution Requests Remember, -- Substitutions have specific additional requirements that differ from a standard subcontractor approval. As you can see, your letter to the Inspector of Public Works must include all of the information in an approval request, but in addition, we need the following documentation: 1. Written agreement from the original subcontractor that they do not object to the substitution, and explaining why they cannot respond to do the work for which they were listed. (called a “withdrawal letter”). 2. Your “Mini” Good Faith Effort – showing that you attempted to obtain bids from at least 1 OBE, 1 MBE and 1 WBE as a replacement for the work. (See OCC’s Webpage for the Good Faith Effort requirements and procedure) 3. The amount for which you will utilize the replacement sub (cannot be less than what the original sub was listed to perform unless the original sub has already performed a portion of the work). General Services Division / Special Research & Investigation Section
Subcontractor Substitutions Substitution Requests (Notifications)) Primes and their subcontractors may have issues which should not effect the City’s project. Your business is your business, ---- it’s not the City’s business. Sometimes a subcontractor will not consent to be substituted, or is not cooperating with a request for written agreement to the substitution. The Board of Public Works cannot arbitrarily replace that sub without their side of the story. In cases where the subcontractor’s withdrawal letter is not forthcoming, a Certified “ 5 DAY LETTER” is sent to the subs’ last known business address, informing them of the Prime’s wish to substitute them. The subcontractor then has 5 DAYS from receipt of this notification to respond in writing as to whether it consents to the substitution. General Services Division / Special Research & Investigation Section
Subcontractor Substitutions Substitution Requests (Hearing Process) If BCA does not receive a written response from the subcontractor within 5 days of it receiving the certified letter, BCA makes its recommendation to the Board to approve the substitution since the effected sub, by failing to respond, has waived its right to a hearing. If a written response is received and the effected subcontractor does not consent to the substitution, then it is entitled to a hearing by the Board. BCA Staff will arrange for the hearing appointment at the Commissioner’s earliest convenient time. Our Commissioners understand the importance of these hearings and their effect on City projects, so every effort is made to expedite this process. BCA Staff will also make all notifications to the concerned parties as to date, time and location of the hearing. Once a hearing is set, both subcontractor and prime must honor this appointment or waive their rights to the matter. General Services Division / Special Research & Investigation Section
Subcontractor Substitutions Substitution Requests (Hearing Process) Continued The Hearing Commissioner is not a judge. He/She is not going to mediate the dispute between parties. The Hearing Commissioner is also not a referee. He/She may not assist you in determining who is right and who is wrong. The Hearing Commissioner is there to determine whether or not the substitution request is warranted under the Public Contract Code. The Commissioner will represent the interests of the City and its project. General Services Division / Special Research & Investigation Section
Subcontractor Substitutions Substitution Requests (Hearing Process) Continued The hearing Commissioner will have been briefed by BCA staff on the issue being presented. He/She will have been provided with all the documentation that was submitted up to the hearing date. You will be expected to provide any other supporting documentation to the Commissioner when you come to the hearing. Your issue will be evaluated and compared to the requirements in the California Public Contract Code Section 4107. The Hearing Commissioner’s responsibility is to determine whether or not the substitution request is reasonable. His/Her responsibility is also to protect the rights of the bid-listed subcontractor. He/She has been delegated the authority to act for the Board of Public Works General Services Division / Special Research & Investigation Section
Subcontractor Substitutions Substitution Requests Board Approval If the Hearing Commissioner agrees to the substitution, he/she submits a motion to the Board of Public Works to approve the substitution. The motion is heard in public session and voted upon by the members. This satisfies the requirements of the Public Contract Code. This is an administrative process and is final. It does not, however preclude the involved parties from seeking other legal solutions to their original issue, as long as this is done outside the City’s contracting process. General Services Division / Special Research & Investigation Section
Subcontractor Substitutions The Critical Path When you are building a construction project, the last thing you need is delays…. We agree!! After all, we want our project finished as quickly as possible for the public’s convenience. Delays cost everybody. As a Public Agency, however, we are bound by the law. And substitution issues take a little time to go all the way through the process. This is why BCA is the agency delegated by the Board of Public Works, to help the Board expedite the process. General Services Division / Special Research & Investigation Section
Subcontractor Substitutions The Critical Path (Approvals) Okay, for you folks out there that like the fancy stuff… This is how it looks plotted out. ! General Services Division / Special Research & Investigation Section
Subcontractor Substitutions The Critical Path (Substitutions) ENOUGH ALREADY !! General Services Division / Special Research & Investigation Section
Subcontractor Substitutions The Bottom Line Anyone who has watched a construction project knows that, on the surface, it appears to be a noisy, dirty and sometimes dangerous operation. However, those of us in the business (like you) also know that looks are often deceiving. A construction project is also a delicate exercise in planning, coordination, and execution involving many people doing many different things simultaneously. General Services Division / Special Research & Investigation Section
The Bottom Line When it comes to being competitive, your administrative skills are as important to you as your building expertise. Knowing the rules of the business is as important to your profit margin as your quality work. BUREAU of CONTRACT ADMINISTRATION + RESPONSIBLE CONTRACTORS + CITY of LOS ANGELES THE WINNING TEAM ! ! ! General Services Division / Special Research & Investigation Section
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