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Introduced Version Senate Bill 551 History

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Key: Green = existing Code. Red = new code to be enacted


Senate Bill No. 551

(By Senators McCabe, Bowman, Rowe and Snyder)

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[Introduced February 8, 2002; referred to the Committee

on Government Organization; and then to the Committee on Finance .]

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A BILL to amend and reenact sections two, five, six, eight and ten, article twenty-two-a, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section seven-a, all relating to design-build projects generally; defining the terms "request for qualifications", "stipend" and "technical review committee"; requiring the design-build board to determine that an agency has the ability to fund certain costs; requiring the proposal of a rule establishing a procedure for selecting the most qualified design-builder; and requiring response from request for qualifications and approval of technical review committee for eligibility to respond to request for proposal.

Be it enacted by the Legislature of West Virginia:
That sections two, five, six, eight and ten, article twenty-two-a, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section seven-a, all to read as follows:
ARTICLE 22A. DESIGN-BUILD PROCUREMENT ACT.
§5-22A-2. Definitions.
For the purpose of this article:
"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.
"Board" means the review board established pursuant to section four of this article to determine whether a public project can be constructed under the design-build method of construction.
"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, where 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 registered in the state of West Virginia and where 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.
"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.
"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 article six, section seven of this chapter and this article.
"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.
"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.
"Performance criteria developer" means an architect or engineer duly registered in accordance with 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.
"Project" means that project described in the public announcement.
"Proposal" means an offer to enter into a design-build contract, as further defined in this article.
"Request for proposals" means the document or publication whereby an agency solicits proposals for a design-build contract.
"Request for qualifications" means the document or publication whereby an agency solicits qualifications from design-builder to determine the most qualified.
"Stipend" is an amount of money allocated to compensate the five most qualified design-builders responding to the request for proposals and receiving at least the minimal acceptable score for their qualitative proposals.

"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.
"Technical review committee" means the committee selected by the agency to review, evaluate and secure the requests for qualifications and the requests for proposals with the assistance of the performance criteria developer serving as an advisor.
"Work" means the 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-5. Duties of board.
Prior to allowing an agency to enter into design-build contracts 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 requires a project design and construction time line that is faster than the traditional design-bid-build process would allow;
(2) The project requires close coordination of design and construction expertise or an extreme amount of coordination; and
(3) The agency requires early cost commitments; and,
(4) The agency has the ability to completely fund the project including, but not limited to, funds for design services, stipends and construction costs.
§5-22A-6. Design-build regulations.
The department of administration shall adopt rules consistent with this article for the award of design-build contracts. Any rules so adopted by the department of administration prior to the first day of October, one thousand nine hundred ninety-nine, are exempt from the provisions of article three, chapter twenty-nine-a of this code: Provided, That the department of administration shall file a copy of any rule so exempted from the provisions of chapter twenty-nine-a of this code with the legislative rule-making review committee created pursuant to section eleven, article three of said chapter prior to the thirtieth day of November, one thousand nine hundred ninety-nine. The rules must consist of, but not be limited to:
(1) The procedures to select or designate a performance criteria developer and prepare performance criteria;
(2) The procedures for the preparation and contents of requests for proposals;
(3) The procedures for selecting the most qualified-design builder prior to the release of the request for proposals;

(3) (4) The procedures for preparing and submitting proposals;

(4) (5) The procedures for evaluating proposals;

(5) (6) The procedures for negotiations between the agency and those submitting proposals prior to the acceptance of a proposal, if any such negotiations are contemplated;

(6) (7) The procedures for awarding and executing design-build contracts;
(7) (8) The procedures for awarding design-build contracts in the event of public emergencies as defined in the applicable statutes; and
(8) (9) The procedures for acting on formal protests relating to the solicitation or award of design-build contracts.
§5-22A-7a. Response to request for qualifications required for eligibility to respond to request for proposal.

In order to be eligible to respond to a request for proposal, all design-builders must first respond to a request for qualifications and be selected by the technical review committee.

§5-22A-8. Development of performance criteria.
(a) Each request for proposal must contain performance criteria prepared by an architect or engineer duly registered in accordance with the laws of this state, referred to as the "performance criteria developer." If the performance criteria developer is not an employee of the agency, then the performance criteria developer and his or her employer, company, partners, joint venturers, affiliates or consultants are disqualified from submitting a proposal to enter into the design-build contract and the design-builder will not be permitted to delegate services under the design-build contract to the performance criteria developer or its consultants. The performance criteria developer must be retained by the agency through final completion of the project to monitor adherence to the performance criteria.
(b) The performance criteria developer, may be an employee of the agency, and to the extent allowed by law, may delegate the development of specific aspects of the design criteria to an architect or engineer duly registered with this state and his or her employer, company, partners, joint venturers, affiliates or other consultants. If the performance criteria developer is not an employee of the agency, The performance criteria developer shall be selected in accordance with the requirements of article one, chapter five-g of this code.
§5-22A-10. Solicitation of proposals.
Proposals must be solicited from not less than three design-builders. A request for proposal must be prepared for each design-build contract and shall consist of, but not be limited to:
(1) The identity of the agency which will award the design-build contract;
(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 rules promulgated herein and any regulations pertaining to the agency;
(3) The proposed terms and conditions for the design-build contract;
(4) The performance criteria;
(5) The description of the drawings, specifications or other submittals 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 design-build contract;
(7) Budget limits for the design-build contract if any;
(8) Design-builder qualifications; and
(9) Requirements for performance bonds, payment bonds and insurance; and
(10) Requirements for the low-bid-cost proposal or the stipulated construction cost proposal.

The request for proposals may include any other information that the agency, at its discretion, chooses to supply, including, but not limited to, surveys, soils reports, drawings or models of existing structures, environmental studies, photographs or references to public records.
Notice of requests for proposals must be advertised as prescribed by the procedures utilized by the purchasing division pursuant to article three, chapter five-a of this code.
NOTE: The purpose of this bill is to establish a system to require that before a design-builder may respond to a request for proposal, the design-builder must first respond to a request for qualifications and be approved by a newly created technical review committee. The bill provides for the payment of a stipend to qualified builders who submit proposals. It also requires that the design build board propose legislative rules to establish a procedure for selecting the most qualified design-builder and to determine whether the agency has the ability to fund certain design-build costs.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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