(a) (1) For a public entity that has entered into a contract with an independent contractor to perform one phase of a project and seeks to enter into a subsequent contract with that independent contractor for a later phase of the same project, the independent contractor is not an “officer” under this article if the independent contractor’s duties and services related to the initial contract did not include engaging in or advising on public contracting on behalf of the public entity.

(2) For purposes of this section, “engaging in or advising on public contracting” means preparing or assisting the public entity with any portion of the public entity’s preparation of a request for proposals, request for qualifications, or any other solicitation regarding a subsequent or additional contract with the public entity.

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(b) (1) If an independent contractor is an officer under subdivision (a), then it is not a violation of this article for the public entity to enter into a subsequent contract with that independent contractor for a later phase of the same project if the independent contractor did not engage in or advise on the making of the subsequent contract during its performance of the initial contract.

(2) For purposes of this section, an independent contractor does not “engage in or advise on the making of the subsequent contract” by participating in the planning, discussions, or drawing of plans or specifications during an initial stage of a project if that participation is limited to conceptual, preliminary, or initial plans or specifications and all bidders or proposers for the subsequent contract have access to the same information, including all conceptual, preliminary, or initial plans or specifications.

(c) A person who acts in good faith reliance on this section is not in violation of this article and shall not be subject to criminal, civil, or administrative enforcement under this article if both of the following conditions are met:

(1) A statement identical or substantially similar to the following is included in the initial contract between the public entity and the independent contractor:

“Contractor/consultant’s duties and services under this agreement shall not include preparing or assisting the public entity with any portion of the public entity’s preparation of a request for proposals, request for qualifications, or any other solicitation regarding a subsequent or additional contract with the public entity. The public entity entering this agreement shall at all times retain responsibility for public contracting, including with respect to any subsequent phase of this project. Contractor/consultant’s participation in the planning, discussions, or drawing of project plans or specifications shall be limited to conceptual, preliminary, or initial plans or specifications. Contractor/consultant shall cooperate with the public entity to ensure that all bidders for a subsequent contract on any subsequent phase of this project have access to the same information, including all conceptual, preliminary, or initial plans or specifications prepared by contractor pursuant to this agreement.”

(2) The independent contractor is not in breach of the contractual obligations set forth in paragraph (1).

(d) If a person acts in good faith reliance on this section but fails to include the language set forth in paragraph (1) of subdivision (c) in the initial contract between the public entity and the independent contractor, it is a complete defense to a violation of this article in any criminal, civil, or administrative proceeding if either of the following apply:

(1) The independent contractor is not an officer pursuant to subdivision (a).

(2) If the independent contractor is an officer pursuant to subdivision (a), the independent contractor did not engage in or advise on the making of the subsequent contract as provided in subdivision (b).

(Added by Stats. 2023, Ch. 263, Sec. 1. (AB 334) Effective January 1, 2024.)