Senate
House
Joint
Bill Status
WV Code
Audits/ Reports
Educational
Contact
home
home

Introduced Version House Bill 2592 History

DOWNLOAD  wpd  |  Email


hb2592 intr
H. B. 2592


(By Delegates Beane, Spencer, Cann and Michael)
[Introduced
February 22, 2005 ; referred to the
Committee on Government Organization then Finance.]




A BILL 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 and §5-22A-12 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §5-22A-9a and §5-22A-9b, all relating to the design-build procurement act generally, defining certain terms, establishing a system for issuing invitations for qualifications, providing for reimbursement of expenses of members of design-build board, modifying the duties and responsibilities of the design-build board, requiring that the most qualified design-builder be selected, adding additional criteria for rules, requiring that the design-builder assign responsibility to duly licensed design professional, prohibiting the performance criteria developer from being an employee of an agency, establishing a two-step process for selecting a design-builder, requiring agency publication of qualifications, preparation of invitations for proposals, requirements for professional liability insurance, providing a process for submitting proposals and providing that the design-build board shall continue to exist until two thousand nine.

Be it enacted by the Legislature of West Virginia:
That §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 and §5-22A-12 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and to amend said code by adding thereto two new sections, designated §5-22A-9a and §5-22A-9b, 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 that have the authority to issue and sign a purchase order for construction or lease purchase of the project.
"Board" means the review design-build 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 satisfies the requirements of the West Virginia Design-build Procurement Act.
"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.
"Invitation for proposals" means the document or publication whereby an agency solicits proposals for a design-build project.
"Invitation for qualifications" means the document or publication whereby 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 request for proposal.
"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 and serve as their technical advisor.
"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.
"Qualified design-builder" means one of the three to five design-builders selected by the agency to respond to the request for proposals.
"Request for proposals" means the document or publication whereby an agency solicits proposals for a design-build contract.
"Responsive proposal" means a proposal that scores a minimum of seventy out of a hundred in the qualitative evaluation.
"Statement of qualifications" means descriptive information or data submitted by a design-builder indicating its ability to satisfy the requirements set forth in the invitation for qualifications.
"Stipend" means an amount of money allocated to compensate the three to five qualified design-builders responding to the request for proposals, which are not awarded a contract.
"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 group of people, with 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 responses to the invitation for qualifications, the statement of qualifications and the requests for proposals.
"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-3. Public policy; conditions for contract.
Recognizing that the design-bid-build method provides a viable delivery method for public projects, it is also the public policy of this state to permit an agency to enter into design-build contracts for public projects.
An agency may not enter into a design-build contract for public project unless:
(1) The Department of Administration or appropriate governing body, prior to issuing invitations for qualifications or requests invitations for proposals, promulgates and publishes rules consistent with this article for the solicitation and award of design-build contracts and shall adhere to this article and those rules;
(2) The agency, for each public project or projects procured pursuant to this article, must determine 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
(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 for in section five of this article.
§5-22A-4. Design-build board and members; appointments; meetings; authority to promulgate rules.

(a) There is hereby created the design-build board and shall be The design-build board is confined to, and is composed of the following nine members who are to be 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 and 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. However, members are entitled to reimbursement or travel and other necessary expenses actually incurred while engaged in attending board meetings, in accordance with rules proposed and adopted pursuant to section eleven, article three, chapter twelve of this code and any existing travel management rules currently in force with and applicable to the Department of Administration. Each member of the board must take and subscribe to the oath or affirmation required pursuant to section five, article IV of the constitution of West Virginia.
(b) Within thirty days of the effective date of this section, the governor shall make the initial appointments to the design-build board. of the initial appointments to the board, four will be for a term ending two years after the effective date of this section and four for a term ending three years after the effective date of this section. Thereafter, Terms of office are for three years, each term ending on the same day of the same month of the year as did the term which it succeeds. Each member will hold 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, it must the vacancy shall be filled 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 must meet within thirty days of the initial appointments to the board at a time and place to be determined by the governor, who must designate a member to preside at that meeting until a chairman is elected. At its first meeting, The board shall elect a chairman chairperson and such other officers as are necessary. The board shall within ninety days after its first meeting adopt rules for its procedures. Five members of the board constitute a quorum. Except as may otherwise be provided in this section, a majority of the total membership is necessary to act at all times. Meetings of the board shall be upon the call of the Secretary of the Department of Administration or the chairperson.
(d) The board shall promulgate rules to carry out the purposes of this article. Any rules adopted by the board 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 board 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 board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to carry out the purposes of this article.
§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.
(a) Monitoring of agencies' design-build activity. -
Upon receipt of information that an agency is planning 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 that agency of the requirements of this act, and that it is a violation of state law if these requirements are not followed. The board shall notify the Secretary of the Department of Administration of any agency knowingly proceeding without meeting the requirements of this article. Any agency pursuing a design-build project without approval of the board is in violation of this article and shall be reported by the Secretary of the Department of Administration to the State Attorney General for appropriate action.
(b)
Approval of project. -
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 conditions:
(1) The agency has the appropriate legal authority to enter into a design and construction contract;
(2) The agency requires a project design and construction time line that is faster than the traditional design-bid-build process would allow;
(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 has the authority or approval, from an agency with the authority to enter into a design-build contract, and the agency shall provide 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)
Monitoring of project progress. -
Once a project is approved under subsection (b) of this section, the agency must 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. If approval is withdrawn by the board, at any time prior to entering into a contract, the agency may not proceed with the project as a design-build project until compliance with the requirements set forth in the board's approval and the requirements for this article are satisfied, as determined by the board.
(d)
Approval of project process. -
Prior to an agency executing a design-build contract for a public project, the board shall review the proposals, after the qualitative and cost proposals are scored. The board's review shall be limited to the request for proposal process, comments from the participants, and satisfaction of any requirements of approval issued by the board under the provisions of subsection (b) of this section. The board shall then approve or reject the agency's request to execute a design-build contract. In the event the agency receives less than three proposals, the board shall determine whether the agency must start the invitations for qualifications process over or whether the agency can proceed to contract.
§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 application of approval of a design-build project;
(3) The procedures for selecting the most qualified design-builders prior to the release of the request for proposals;
(2) (4) The procedures for the preparation and contents of requests for proposals;
(3) (5) The procedures for preparing and submitting proposals;
(4) (6) The procedures for evaluating proposals;
(5) (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;
(6) (8) The procedures for awarding and executing design-build contracts;
(7) (9) The procedures for awarding design-build contracts in the event of public emergencies as defined in the applicable statutes; and
(8) (10) The procedures for acting on formal protests relating to the solicitation or award of design-build contracts.
§5-22A-7. Design-builder qualifications; rights and powers.
Each design-builder must be duly licensed and registered to do business in this state and be a licensed architect or engineer or a general contractor.
Each design-builder must have the following rights and powers:
(1) The design-builder must shall assign or sublet the responsibility for professional design services to a firm design professional duly licensed and registered to provide professional design services in this state. The firm design professional must carry, at all times, professional design liability insurance in an appropriate amount as designated by the agency. This design professional may be a full or part-time employee of the design-builder.
(2) The design-builder must assign or sublet responsibility for construction or other services requiring a contractor's license to persons or entities duly registered, licensed or otherwise qualified to provide those services in this state.
(3) The design-builder may contract with the agency to provide professional services or construction services that the design-builder is not itself licensed, registered or otherwise authorized to provide so long as those services are assigned or sublet to a firm that is a member of the design-build team and is registered, licensed and qualified to provide those services.
§5-22A-8. Development of performance criteria.
(a) Each request invitation 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 shall not be an employee of the agency and shall 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 and shall not be an employee of the agency. Notwithstanding any provision of law to the contrary, 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.
§5-22A-9a. Selection of most qualified design-builders.
The solicitation of design-builders shall be a two-step process. The first step is the invitation for proposals. In order to be eligible to respond to an invitation for proposal, all design-builders must first respond to the invitation for qualifications developed by the agency and performance criteria developer with a statement of design-build qualifications.
The agency shall review the statement of design-build qualifications and select the three to five most qualified design-builders to participate in the invitation for proposals. If less than three design-builders are determined to be qualified, the agency must seek approval of the design-build board to continue with the selection process.
The results of the selection shall be made available to the design-builders within ten working days of the selection.
§5-22A-9b. Invitation for qualifications.
The agency shall publish in accordance with the West Virginia procurement laws an invitation for qualifications that includes, but is not limited to the following:
(a) A descriptive narrative of the type, scope and size of the proposed work;
(b) The evaluation criteria for selecting the three to five qualified design-builders; and
(c) Request for descriptive information or data supporting a design-builder's claim to be able to perform the work including, but not limited to:
(1) Licensing, insurance and evidence of good standing with the State of West Virginia and the agency;
(2) Bonding ability;
(3) Experience and technical expertise;
(4) History of past performance;
(5) Qualifications, experience and licenses of key management and professional staff including contractor, architects and engineers;
(6) Staffing capabilities;
(7) Current workload;
(8) Quality control and quality assurance policies and programs;and
(9) Safety record, including employee modification rating (EMR) for the past three years.
§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 The agency shall prepare an invitation for proposals for the qualified design-builders which 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; and
(8) Design-builder qualifications; and
(9) (8) Requirements for performance bonds, payment bonds, and insurance, 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 professional liability insurance, and workers' compensation coverage.
The request for proposals may include any other information that the agency, at its discretion, chooses to supply, The agency shall provide, as applicable, additional information to the design-build teams, including, but not limited to, surveys, soils reports, drawings or models of information regarding existing structures, environmental studies, photographs or references to public records, or other information determined by the agency to be pertinent.
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.
§5-22A-11. Proposals.
Proposals must be submitted in two separate, clearly identified, sealed packages. The first package shall contain the qualitative information which shall be evaluated, scored, and publicly announced prior to opening the second package containing the cost information. If the qualitative package and cost package are not submitted in two clearly identified packages, the submission shall be disqualified.
Proposals must be sealed and may not be opened until expiration of the time established for making proposals as set forth in the request for proposals. Requests for proposals must require and be accompanied by a bid bond not to exceed five percent of the maximum cost of the design-build contract, as established by the proposal. In the event the proposal is accepted and the design-builder fails to execute the design-build contract, the bid bond will be forfeited.
To the extent required, the request for proposal must identify each firm to whom the design-builder proposes to sublet obligations under the design-build contract. At a minimum, each proposal must identify each firm responsible for the design and primary construction and their affiliation to the design-builder. Proposals must establish a 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.
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.
Proposals may not be amended during the review process.
At the discretion of the agency, a stipend may be paid to the design-builders not ultimately selected. A stipend shall be paid to qualified design-builders not ultimately selected. The stipend shall be equal to two percent of the awarded contract amount or thirty thousand dollars, whichever is less. This amount shall be equally distributed among the qualified design builders that are not awarded a contract.
§5-22A-12. Acceptance of design-build proposal.
Proposals must be submitted to the purchasing division or agency, as applicable 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 each proposal in regard to compliance with the performance criteria. No proposal or design-build contract may be accepted unless the purchasing division or agency, as applicable, design-build board determines that there was adequate competition for the contract.
After receiving and evaluating all proposals submitted based upon the criteria and procedures set forward forth in the request for proposals, the purchasing division or agency shall submit to the board the proposals, so that the board may satisfy itself that any requirements for approval have been satisfied, prior to the agency accepting any proposal. The itemized scoring of the qualitative proposals shall be submitted to the board and be available for public review prior to the award of a contract. If the process is approved by the board, the agency, as applicable, must accept the proposal that receives the best score, as set forth in the rules provided for in section six of this article.
Acceptance of a proposal shall be by written notice to the design-builder which submitted the accepted proposal. At the same time notice of acceptance is delivered, the purchasing division or agency, as applicable, shall also inform, in writing, the nonsuccessful design-builders that their 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 best score and all other factors used or considered in the selection process.



NOTE: The purpose of this bill is to enhance the operation of the design-build board by providing additional oversight, requiring design builders to be prequalified, making the process more public, and providing independent professional oversight. Among some of the specific provisions of the bill are the following: (1) To create a two-step process for approval, i.e., a "prequalification" of the design-builder and scoring of the proposals made; (2) to provide that the criteria developer should not be an employee of the agency responsible for a project; (3) to provide that the design-build board has more authority, including the ability to terminate a project previously approved if it does not comply with the rules of acceptance of the project; and, (4) to require agencies to regularly report to the design-build board in order to provide feedback as a way to insure quality and timeliness of a project, and to, additionally, insure that a project is in compliance with the terms of approval.

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

§5-22A-9a and §5-22A-9b are new; therefore, strike-throughs and underscoring have been omitted.
This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Web Administrator   |   © 2014 West Virginia Legislature ****