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______________________________________________________________________________ TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL State of California

DANIEL E. LUNGREN Attorney General

OPINION : : No. 92-1006 of : : JULY 14, 1993 DANIEL E. LUNGREN : Attorney General : : ANTHONY S. Da VIGO : Deputy Attorney General : :

THE HONORABLE WILLIAM A. CRAVEN, MEMBER OF THE CALIFORNIA STATE SENATE, has requested an opinion on the following question: May a general law county or a general law city enter into a "job order contract" in excess of $50,000 for the performance of public projects involving minor construction, and the renovation, alteration, painting, and repair of existing facilities?

CONCLUSION A general law county or a general law city may not enter into a "job order contract" in excess of $50,000 for the perfor mance of public projects involvi ng minor construction, and the renovation, alteration, painting, and repair of existing facilities, except under narrowly defined statutory conditions applicable only to counties.

ANALYSIS A "job order contract" (JOC) is a compe titively bid, firm fixe d price, indefinite quantity contract for the performance of minor construction, as well as the renovation, alteration, painting, and repair of existing public facilities. A JOC, generally a multi-year contract including a base year and multiple option years, is bid and awarded prior to the identification of any specific projects to be performed. Thus, a typical JOC i nvolves a variety of tasks such as the remodeling, renovation, and repair, including roofing, electri cal, plumbing, and painting, of all of a public agency's buildings for a period of years. A JOC is a fixed price agreement in the se nse that it is based upon specified charges contained in a unit price book (prepared by the public agency or by independent commercial sources) setting forth detailed repair and construction tasks, including task descriptions, specifications, units of measurement, and unit prices for each task. A contractor's bid is expressed in terms of a percentage of the specified book ch arges such as 115 percent or 125 percent. The book

1. 92-1006is then used to determine the costs of each propos ed project during the term of the contract. The total JOC value may be specified as a range with a certain guaranteed minimum, typically from $50,000 to $250,000, and a maximum which may extend beyond $10 million. The inquiry presented for consideration is, essentially, whether such a contract is authorized under the provisions of the Local Agency Public Construction Act (Pub. Contract Code, §§ 20100-20920) 1 or the Uniform Public Construc tion Cost Accounting Act (§§ 22000-22045) pertaining to cities and counties. We conclude generally in the negative. The Local Agency Public Construction Act deals separately with counties, cities, school districts and other public agencies. With regard to public works contracts awarded by counties (§ 20120), 2 whenever the project cost of construction, alteration, or repair exceeds $4,000; or in the case of a county containing a population of 500,000 or more, 3 $6,500; or in the case of alteration or repair of county owned buildings in a county containing a population of 2 million or more, $50,000; the work must be done by contract in accordance with the provisions of the act pertaining to counties. (§§ 20121, 20122, 20123.) Generally, the contract must be let to bid and awarded to the lowest responsible bidder. ( §§ 20125, 20128.) W ith respect to cities, when the expenditure required for a public project exceeds $5,000, it must be contracted for and let to the lowest responsible bidder. (§ 20162.) The Legislature has provided an alterna tive method for the bidding of public works projects by public entities. (§ 22001.) The Unif orm Public Construction Cost Accounting Act applies generally to a "public agency" including counties and cities. (§ 22002, subd. (a).) Under this act, the governing board of either a city or a county may, by resolution and notification to the State Controller, elect to become subject to the pr ocedures set forth in the act. (§ 22030.) In such event, public projects 4 in excess of $25,000 but not in excess of $75,000 may be let to contract by informal bidding procedures established by ordinan ce. (§ 22032, subds. (a), (b).) Public projects in excess of $75,000 must, with certain exceptions not pertinent here, be let to contract by formal bidding procedure. (§ 22032, subd. (c).) Under either statutory scheme, it is expre ssly unlawful for a county or a city to split or separate into smaller work orders or project s any public works project for the purpose of evading

1 Undesignated section references herein are to the Public Contract Code.

2 A "public works contract" is defined generally as ". . . an agreement for the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind." (§ 1101; see also, Gov. Code, §§ 25358, 31000 [maintenance, care, upkeep].)

3 Special provisions apply to contracts betw een $4,000 and $10,000, and to contracts in excess of $10,000, let by counties containing a popula tion of less than 500,000. (§§ 20150 - 20150.14 .) An analysis of those provisions, which would be more analogous to the discussion in respect to cities, suggests no basis for a conclusion contrary to that reached in connection with counties generally. As in the case of cities (§ 20161), a "public project" is expressly defined to include "a project" for the erection, improvement, and repair of public buildings and works. (§ 20150.2.)

4 "Public project" includes construction, reconstruction, erection, alteration, renovation, improvement, demolition, repair, painting, or repain ting of any publicly owned, leased, or operated facility. (§ 22002, subd. (c).)

2. 92-1006the provisions requiring public works to be done by contract after competitive bidding. (§§ 20123.5, 20163, 22033.) 5 As we have seen, all public projects over $50,000 (and many below $50,000) are subject to contract bidding. (§§ 20121-20123, 20150.4 [counties]; § 20162 [cities]; §§ 22032, subds. (a),(b), 22034 [alternative informal procedure]; §§ 22032, subd. (c), 22037 [alternative formal procedure].) In our view, a public project, or public works project, does not encompass a combination of projects which are essentially unsp ecified at the time of bidding, except as may be otherwise expressly provided by law. First, such an indefinite combination is not suggested in the context of either statutory scheme. Under the Local Agency Public Construc tion Act, the board of supervisors is required to adopt, and bidders permitted to examine, and th e contractor required to conform with, plans, specifications, strain sheets, and working details for the project. (§§ 20124, 20127, 20128.) The extent to which changes or additions may be ordered in connection with work to be performed under an awarded contract is strictly limited. (§ 20142.) While the board of supervisors is authorized to insert provisions in the contract itself for the performance of such extra work and materials as may be required for "the proper completion or construction of the whole work contemplated," it is clear that the authorization pe rtains to a specified project in connection with a specific building or structure. (§ 20143.) Similarly, the board of supervisors of a county with a population of less than 500,000 is required to adopt, and bidders permitted to examin e, plans, specifications, and working details for all public projects in excess of $10,000. (§§ 20150.12 , 20150.13.) Further, notices by such a county or by a city inviting formal bids must "distin ctly state the project to be done." (§§ 20150.8, 20164.) Counties and cities, including chartered counties and chartered cities, which have elected to become subject to th e Uniform Public Construction Co st Accounting Act are required to adopt, and bidders permitted to examine, plans, specifications, and working details for all public projects in excess of $75,000. (§§ 22039, 22040.) Noti ces inviting formal bids must "distinctly describe the project." (§ 22037.) With respect to public projects of lesse r value, public agencies must enact an informal bidding ordinance which, inter alia, "shall describe the project in general terms, [and] how to obtain more detailed informa tion about the project. . . ." (§ 22034, subd. (d).) Second, and perhaps of paramount significan ce, the Legislature has addressed itself to the kind of contract which may be generally described as a JOC. Section 20128.5 provides: "Notwithstanding any other provisions of this article, the board of supervisors may award annual contracts which do not exceed one million dollars ($1,000,000) for repair, remodeling, or other repetitive wo rk to be done according to unit prices. No annual contracts may be awarded for a ny new construction. The contracts shall be awarded to the lowest bidder and shall be based on plans and specifications for typical work. No project shall be perf ormed under such a contract except by order of the board of supervisors, or an officer acting pursuant to Section 20145. "For purposes of this section, `unit pr ice' means the amount paid for a single unit of an item of work, and `typical wo rk' means a work description applicable

5 A JOC does not appear to involve the splitting of a public project into smaller work orders for the purpose of evading contract bidding, but rather involves the combination of projects with the purpose or effect of avoiding contr act bidding on each project separately.

3. 92-1006universally or applicable to a large number of individual projects, as distinguished from work specifically described with respect to an individual project. "For purposes of this section, `repair , remodeling, or other repetitive work to be done according to unit prices' shall not include design or contract drawings." 6 To the extent, then, that a JOC (1) involves a count y and not a city, (2) has a length of a single year's duration and not longer, (3) is limited to $1 million in value, (4) calls only for repair, remodeling, or other repetitive work and not new construction or design or contract drawings, and (5) is based upon plans and specification for such typical wor k, section 20128.5 authorizes the execution of the contract. It may be seen that section 20128.5's unit price contracting authority, "[n]otwithstanding any other provisions of [article 3.5 pertaining to counties]," is specially granted and subject to the specified limitations. It may not be reasonably contended, therefore, that such powers may be exercised by counties which are in ex cess of such authority, or may be exercised by cities in the absence of an express grant of author ity and in the absence of any specified limitations. (See Safer v. Superior Court (1975) 15 Cal.3d 230, 236-238; Board of Trustees v. Judge (1975) 50 Cal.App.3d 920, 927; 76 Ops.Cal.Att y.Gen. 86, 89 (1993); see also Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 196; DeWeese v. Unick (1980) 102 Cal.App.3d 100, 106.) "`The mode prescribed is the measure of the power.'" ( People v. Zamora (1980) 28 Cal.3d 88, 98.) It is concluded that a general law county or a general law city may not enter into a "job order contract" in excess of $50,000 for the performance of public projects involving minor construction, and the renova tion, alteration, painting, or repair of existing facilities, except under the narrowly defined conditions of section 20128.5 applicable only to counties.

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6 Section 20145 allows a county containing a population of 6 million or more to have a county officer act in place of the board of supervisors in awarding the contracts.

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