Enrolled Version - Final Version
House Bill 2592 History
OTHER VERSIONS -
COMMITTEE SUBSTITUTE FOR
H. B. 2592
(By Delegates Beane, Spencer, Cann and Michael)
[Passed March 30, 2005; in effect July 1, 2005.]
AN ACT to amend and reenact §5-22A-2, §5-22A-3, §5-22A-4, §5-22A-5,
§5-22A-6, §5-22A-7, §5-22A-8, §5-22A-10, §5-22A-11, §5-22A-12
and §5-22A-15 of the Code of West Virginia, 1931, as amended;
and to amend said code by adding thereto a new section,
designated §5-22A-9a, all relating to the Design-Build
Procurement Act; definitions; authorizing reimbursement of
expenses for Design-Build Board members; clarifying the duties
of the Board; modifying requirements for approval of design-
build projects; clarifying that authority to enter into
design-build contracts terminates when Board terminates;
requiring monthly progress reports on design-build projects;
requiring annual reports; revising rule-making authority and
requirements; specifying requirements for performance criteria
developers; establishing requirements for issuing invitations for qualifications and proposals; providing for selection of
qualified design-builders; revising proposal requirements;
revising submission requirements; and changing the
continuation date for the Board.
Be it enacted by the Legislature of West Virginia:
, §5-22A-3, §5-22A-4, §5-22A-5, §5-22A-6, §5-22A-
7, §5-22A-8, §5-22A-10, §5-22A-11, §5-22A-12 and 5-22A-15 of the
Code of West Virginia, 1931, as amended, be amended and reenacted;
that said code be amended by adding thereto a new section,
designated §5-22A-9a, all to read as follows:
ARTICLE 22A. DESIGN-BUILD PROCUREMENT ACT.
For the purpose of this article:
(1) "Agency" means all state departments, agencies,
authorities, quasi-public corporations and all political
subdivisions, including cities, counties, boards of education and
public service districts and the individual representatives of the
agency appointed to oversee or supervise the project.
(2) "Board" means the Design-Build Board established pursuant
to section four of this article to determine whether a public
project satisfies the requirements of this article.
(3) "Design-build" is defined as providing responsibility
within a single contract for design, construction or alteration of
a building or buildings, together with incidental approaches, structures and facilities to be constructed, in which services
within the scope of the practice of professional engineering or
architecture, as defined by the laws of the State of West Virginia,
are performed by an engineer or architect duly licensed in the
State of West Virginia and in which services within the scope of
construction contracting, as defined by the laws of the State of
West Virginia, are performed by a contractor qualified and licensed
under the applicable statutes. The design-build method of
construction may not be used for any other construction projects,
such as highway, water or sewer projects.
(4) "Design-build contract" means the contract between an
agency and a design-builder to furnish the architecture,
engineering, and related services as required, for a given public
project, and to furnish the labor, materials and other construction
of services for the same public project. A design-build contract
may be conditional upon subsequent refinements in scope and price,
and may permit the agency to make changes in the scope of the
project without invalidating the design-build contract.
(5) "Design-builder" means the entity, whether natural person,
partnership, joint venture, corporation, professional corporation,
business association or other legal entity, that proposes to design
and construct any public project governed by the procedures of
section seven, article six of this chapter and this article.
(6) "Firm" means any individual, firm, partnership, corporation, limited liability company, limited liability
partnership, association, joint venture or other legal entity
permitted by law to practice engineering, architecture or
construction contracting in the State of West Virginia.
(7) "Invitation for proposals" means the document or
publication by which an agency solicits proposals for a design-
(8) "Invitation for qualifications" means the document or
publication by which an agency solicits a statement of
qualifications from potential design-builders in order to select
three to five design-builders to respond to the agency's invitation
(9) "Performance criteria" means the requirements for the
public project, including as appropriate, aesthetics, capacity,
durability, production standard, ingress and egress requirements or
other criteria for the intended use of the public project,
expressed in performance-oriented drawings and specifications
suitable to allow the design-builder to make a proposal.
(10) "Performance criteria developer" means an architect or
engineer licensed under the laws of this state and, if applicable,
the architect's or engineer's employer, company, partners, joint
venturers, affiliates or subcontractors retained by the agency to
develop performance criteria and to serve as the agency's technical
(11) "Project" means that project described in the public
(12) "Proposal" means an offer to enter into a design-build
contract, as further defined in this article.
(13) "Qualified design-builder" means one of the three to five
design-builders selected by the agency to respond to the invitation
(14) "Responsive proposal" means a proposal that scores
a minimum of seventy points out of a possible one hundred points in
the qualitative evaluation.
(15) "Statement of qualifications" means descriptive
information or other data submitted by a design-builder indicating
its ability to satisfy the requirements set forth in the invitation
(16) "Substantial completion" means the stage in the progress
of the work when the work or designated portion thereof is
sufficiently complete in accordance with the design-build contract
so the agency can occupy or utilize the work for its intended use.
(17) "Technical review committee" means the group of
individuals who have education and experience in the design,
construction, operation, administration, and finance requirements
of the project and users of the project selected by the agency to
review, evaluate and score the statement of qualifications and
invitation for proposal.
(18) "Work" means the design, construction and services
required by the design-build contract, whether completed or
partially completed, and includes all other labor, materials,
equipment and services provided or to be provided by the design-
builder to fulfill the design-builder's obligations. The work may
constitute the whole or a part of the project.
§5-22A-3. Public policy; conditions for contract.
(a) Recognizing that the design-bid-build method provides a
viable delivery method for public projects, it is the public policy
of this state to permit an agency to enter into design-build
contracts for public projects.
(b) An agency may not enter into a design-build contract for
a public project unless:
(1) The Department of Administration promulgates and publishes
legislative rules pursuant to section six of this article, and
consistent with this article for the solicitation and award of
design-build contracts and adheres to this article and those rules;
(2) The agency, for each public project or projects procured
pursuant to this article, determines that it is in the best
interest of the public to enter into a design-build contract to
complete the public project or projects and adheres to this article
and the rules;
(3) The Board established pursuant to section four of this
article determines that the public project is appropriate as a design-build project utilizing the mandatory criteria as provided
in section five of this article.
When the Design-Build Board, established pursuant to
section four of this article, is terminated pursuant to the Acts of
no agency may enter into a design-build contract:
Provided, That agencies may pursue and complete any design-build
projects approved by the board prior to its termination date.
Design-Build Board and members; appointments; expense
(a) The Design-Build Board is continued within the Department
of Administration and is composed of the following nine members who
are appointed by the Governor with the advice and consent of the
Senate: Two contractors licensed in the State of West Virginia; one
architect licensed in the State of West Virginia; one professional
engineer licensed in the State of West Virginia; the Secretary of
the Department of Administration, ex officio; one representative
from labor; and three other members of the public at large.
Members of the Board are not entitled to compensation for services
performed as members, but may be reimbursed for actual and
necessary expenses incurred for each day in which he or she is
engaged in the discharge of official business, in accordance with
rules promulgated pursuant to section eleven, article three,
chapter twelve of this code and travel management policies adopted
by the Department of Administration. Each member of the Board shall take and subscribe to the oath or affirmation required pursuant to
section five, article IV of the Constitution of West Virginia.
(b)Terms of office are for three years, which are staggered in
accordance with the initial appointments under prior enactment of
this section, each term ending on the same day of the same month of
the year as did the term which it succeeds. Each member holds
office from the date of his or her appointment or until his or her
successor qualifies for office. When a vacancy occurs as a result
of death, resignation or removal in the membership of the Board,
the Governor shall fill the vacancy by an appointment within thirty
days of the vacancy for the unexpired portion of the term in the
same manner as original appointments.
(c) The Board shall elect a chairperson and other necessary
officers. The Board shall adopt rules for its procedures. Five
members of the Board is a quorum. A majority of the total
membership is necessary to act at all times. Meetings of the board
shall be held upon the call of the Secretary of the Department of
Administration, the call of the chairperson or the call of any two
members of the Board: Provided, That the Board shall meet at least
four times each calendar year and all meetings of the Board must be
held in accordance with the open governmental proceedings act as
set out in article nine-a, chapter six of this code.
§5-22A-5. Duties of board to approve and monitor projects.
(a) Upon receipt of information that an agency wants to pursue
the design-build method of project delivery, the board, with the
administrative support of the Secretary of the Department of
Administration, shall notify the agency that failure to comply with
the requirements of this article is a violation of state law. The
Board shall notify the Secretary of the Department of
Administration of any agency knowingly proceeding without meeting
the requirements of this article.
(b) Prior to an agency issuing an invitation for
qualifications for public projects, the Board must determine that
the public project is appropriate as a design-build project in
accordance with all of the following:
(1) The agency has the appropriate legal authority to enter
into a design-build contract;
(2) The agency requires a project design and construction time
line that is faster than the traditional design-bid-build process
(3) The project requires close coordination of design and
construction expertise or an extreme amount of coordination;
(4) The agency requires early cost commitments;
(5) The agency provides a written plan for funding the project
including, but not limited to, the funding necessary to pay for
design services and construction costs; and
(6) The agency has completed and submitted a written application for approval to the Board and requested a meeting with
the Board to present its request for approval from the Board.
(c) Upon project approval under subsection (b) of this
section, the agency shall submit to the Board monthly reports
detailing the progress of the approved project. The reports shall
continue until the start of construction to ensure that the agency
has complied with any requirements established by the Board in its
approval of the project. If any requirement is not satisfied, the
Board may withdraw its approval of the project at any time prior to
the start of construction. If the board withdraws its approval, the
agency may not proceed with the project as a design-build project
until the requirements set forth in the board's approval and the
requirements of this article are met, as determined by the board.
(d) On or before the first day of January of each year, the
Board shall file an annual report with the Joint Committee on
Government and Finance, and a copy of the report with the
Legislative Librarian, setting forth a description of the projects
approved during the preceding year, including copies of monthly
monitoring reports submitted to the Board pursuant to subsection
(c) of this section.
§5-22A-6. Design-build rules.
The Department of Administration shall propose rules for
legislative approval pursuant to article three, chapter twenty-
nine-a of this code and consistent with this article for the award of design-build contracts, which provide, at a minimum:
(1) The procedures to select or designate a performance
criteria developer and prepare performance criteria;
(2) The application process for approval of a design-build
(3) The procedures for selecting the most qualified design-
builders prior to the release of the invitation for proposals;
(4) The procedures for the preparation and contents of
invitations for proposals;
(5) The procedures for preparing and submitting proposals;
(6) The procedures for evaluating proposals;
(7) The procedures for negotiations between the agency and
those submitting proposals prior to the acceptance of a proposal,
if any such negotiations are contemplated;
(8) The procedures for awarding and executing design-build
(9) The procedures for awarding design-build contracts in the
event of public emergencies as defined in the applicable statutes;
(10) The procedures for acting on formal protests relating to
the solicitation or award of design-build contracts.
§5-22A-7. Design-builder qualifications; duties and powers.
(a) Each design-builder shall be licensed to do business in
this state and be a licensed architect or engineer or a general contractor.
(b) Each design-builder may:
(1) Assign or sublet the responsibility for professional
design services to an architect or engineer licensed in this state.
The architect or engineer shall carry, at all times, professional
design liability insurance in an appropriate amount as designated
by the agency. The architect or engineer may be a full or part-time
employee of the design-builder; and,
(2) Assign or sublet responsibility for construction or other
services requiring a contractor's license to persons or entities
licensed or otherwise qualified to provide those services in this
(c) Each design-builder may contract
to provide professional
services or construction services to the agency that the design-
builder is not licensed, registered or otherwise authorized to
provide so long as those services are assigned or sublet to a firm
that is registered, licensed and qualified to provide those
§5-22A-8. Development of performance criteria.
(a) Each invitation for proposal must contain performance
criteria prepared by an architect or engineer licensed under the
laws of this state, referred to as the "performance criteria
developer." The agency shall select the performance criteria
developer in accordance with the requirements of article one, chapter five-g of this code, and shall retain the performance
criteria developer through final completion of the project to
monitor adherence to the performance criteria.
The agency may use its own employees to determine whether
the agency should seek to construct a project using the design-
build method of construction. The agency may use an employee as
its performance criteria developer on projects for which
construction costs are estimated to be one million dollars or less.
(c) The performance criteria developer and his or her
employer, company, partners, joint venturers, affiliates or
consultants may not submit a proposal to enter into the design-
build contract and may not perform services under the design-build
(d) The performance criteria developer may delegate the
development of specific aspects of the design criteria to an
architect or engineer licensed by this state and his or her
employer, company, partners, joint venturers, affiliates or other
Invitation for qualifications; selection of design-
(a) The agency shall publish an invitation for qualifications
which provides, at a minimum:
(1) A descriptive narrative of the type, scope and size of the proposed work;
(2) The evaluation criteria for selecting the three to five
qualified design-builders; and
(3) A request for descriptive information or data supporting
a design-builder's claim to be able to perform the work, including,
but not limited to:
(A) Licensing, insurance and evidence of good standing with
the State of West Virginia and the agency;
(B) Bonding ability;
(C) Experience and technical expertise;
(D) History of past performance;
(E) Qualifications, experience and licenses of key management
and professional staff including contractors, architects and
(F) Staffing capabilities;
(G) Current workload;
(H) Quality control and quality assurance policies and
(I) Safety record, including employee modification rating for
the past three years.
(b) The agency shall review the statements of qualifications
and select not fewer than three nor more than five of the most
qualified design-builders to participate in the invitation for
proposals. If fewer than three design-builders are determined to be qualified, the agency shall seek approval of the Design-Build
Board to continue with the selection process.
(c) The agency shall make the results of the selection
available to the design-builders within ten working days of the
§5-22A-10. Invitation for proposals.
(a) The agency shall prepare an invitation for proposals
for the qualified design-builders, which must provide at a minimum:
(1) The identity of the agency which will award the design-
(2) The procedures to be followed for submitting proposals,
the criteria for evaluation of proposals and their relative weight,
and the procedures for making awards, including a reference to the
requirements of this article, the legislative rules promulgated
pursuant to section six of this article and any specific
requirements of the agency;
(3) The proposed terms and conditions for the design-build
(4) The performance criteria;
(5) The description of the drawings, specifications or other
information to be submitted with the proposal, with guidance as to
the form and level of completeness of the drawings, specifications
or submittals that will be acceptable;
(6) A schedule for planned commencement and completion of the
(7) Budget limits for the design-build contract, if any;
(8) Requirements or restrictions for the subletting of
specific portions of the design-build contract, if any; and
(9) Requirements for performance bonds, payment bonds,
insurance, professional liability insurance and workers'
compensation coverage: Provided, That no officer or employee of
this state or of any public agency, public authority, public
corporation, or other public entity, and no person acting or
purporting to act on behalf of such officer or employee or public
entity shall require that any performance bond, payment bond, or
bid bond required or permitted by this section be obtained from any
particular surety company, agent, broker, or producer.
The agency shall provide, as applicable, additional
information to the design-builder, including, but not limited to,
surveys, soils reports, drawings or information regarding existing
structures, environmental studies, photographs or references to
public records, or other pertinent information.
(a) Proposals shall be submitted in two separate, clearly
identified, sealed packages, with the first containing the
technical submission and the second containing the cost submission.
If the technical submission and cost submission are not submitted in two separate, clearly identified sealed packages, the Board
shall disqualify the submission.
(b) Proposals may not be opened until expiration of the time
established for making proposals as set forth in the invitation for
(c) The design-builder shall furnish
a bid bond not to exceed
five percent of the maximum cost of the design-build contract. In
the event the proposal is accepted and the design-builder fails to
execute the design-build contract, the bid bond will be forfeited.
(d) To the extent required in the invitation for proposal, the
design-builder shall identify each firm to whom the design-builder
proposes to sublet obligations under the design-build contract. At
a minimum, the design-builder shall
identify each firm responsible
for the design and primary construction and their affiliation to
(e) The design-builder shall specify in the proposal the cost
of the design-build contract that will not be exceeded if the
proposal is accepted without change. After award of the proposal,
the maximum cost of the proposal may be converted to fixed prices
by negotiated agreement between the agency and the design-builder.
(f) Prior to the award of the design-build contract, all
drawings, specifications and other information submitted in the
proposal shall remain the property of the design-builder submitting
the proposal. Additionally, prior to the award of the design-build contract, the agency shall maintain the secrecy and confidentiality
of all information contained in the proposal. Once a proposal is
accepted, the disclosure of the proposal and the information in the
proposal, and the ownership of the drawings, specifications and
information therein, shall be determined in accordance with
existing law and the terms of the design-build contract.
(g) Proposals may not be amended during the review process.
(h) At the discretion of the agency, a stipend may be paid to
the design-builders not ultimately selected.
§5-22A-12. Acceptance of design-build proposal.
(a) The design-builder shall submit the proposal to the agency
as required in the invitation for proposals. Clarifications may be
required to ensure conformance of proposals with the performance
criteria. In seeking clarifications, the performance criteria
developer may not reveal any aspect of any proposal to any other
design-builder. The performance criteria developer must certify
that the proposal complies with the performance criteria.
(b) In the event the agency receives fewer than three
proposals, the Board shall, in consultation with the Secretary of
the Department of Administration, determine whether the agency may
proceed or shall start the invitations for qualifications process
(c) After receiving the proposals, the technical review
committee shall evaluate and score the technical submissions based upon the criteria and procedures set forth in the invitation for
(d) The agency shall submit the technical submissions,
including the scores of the technical submissions, to the Board.
The agency shall make the scores of the technical submissions
available for public review.
(e) The Board shall ascertain that the technical submissions
comply with the requirements of this article and shall notify the
agency of its approval. The agency shall open the cost submissions
and accept the proposal that receives the best score, as set forth
in the legislative rules promulgated pursuant to section six of
(f) The agency shall notify the design-builder in writing that
its proposal was accepted. At the same time notice of acceptance is
delivered, the agency shall also inform, in writing, the design-
builders whose proposals were not accepted. When a design-builder
receives notification that its proposal was not accepted, the
design-builder may, within three days after receipt of such
notification, request in writing a copy of the scores and all other
factors used or considered in the selection process.
§5-22A-15. Continuation of the Design-Build Board.
Pursuant to the provisions of article ten, chapter four of
this code, the Design-Build Board shall continue to exist until the
first day of July, two thousand eight, unless sooner terminated, continued or reestablished.