H. B. 3042
(By Delegates Staton and Amores)
[Introduced March 28, 2001; referred to the
Committee on the Judiciary then FInance.]
A BILL to amend and reenact sections two, three and four, article
one, chapter five-g of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further
amend said article by adding thereto new sections,
designated sections five and six, all relating to the
selection process for certain architectural and engineering
service contracts by the State and its subdivisions; setting
forth a list of certain functions which are incidental
services; providing procedures where total project costs are
two hundred fifty thousand dollars or more; providing
procedures where total project costs are under two hundred
fifty thousand dollars; and providing guidelines for
subcontract procurement of public involvement services.
Be it enacted by the Legislature of West Virginia:
That sections two, three and four, article one, chapter
five-g 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 new sections,
designated sections five and six, all to read as follows:
Article 1. PROCUREMENT OF ARCHITECT-ENGINEER SERVICES.
§5G-1-2. Definitions.
As used in this section:
(a) The term "agency" means all state departments, agencies,
authorities, quasi-public corporations and all political
subdivisions, including cities, counties, boards of education and
public service districts.
(b) The term "architectural and engineering services"
includes those professional services of an architectural or
engineering nature as well as incidental services that members of
those professions and those in their employ may logically or
justifiably perform. Incidental services include, but are not
limited, to the following:
(1) Project management;
(2) Construction management and inspection;
(3) Feasibility studies;
(4) Preliminary engineering;
(5) Design engineering;
(6) Design;
(7) Engineering;
(8) Surveying;
(9) Mapping;
(10) Architectural services;
(11) Materials, inspection, sampling, and testing;
(12) Related services;
(13) Archaeological investigation; and
(14) Historic investigation.
(c) The term "director of purchasing" means any individual
assigned by any agency to procure the services of architects and
engineers.
(d) The term "firm" or "professional firm" means any
individual, firm, partnership, corporation, association or other
legal entity permitted by law to practice the professions of
architecture and engineering.
§5G-1-3. Contracts for architectural and engineering services;
selection process where total project costs are estimated to
cost two hundred fifty thousand dollars or more.
In the procurement of architectural and engineering services
for projects estimated to cost two hundred fifty thousand dollars
or more:
(1) The director of purchasing shall encourage such firms
engaged in the lawful practice of the profession to submit an
expression of interest. This expression of interest shall must
include a statement of qualifications and performance data, and
may include anticipated concepts and proposed methods of approach
to the project.
(2) All such jobs shall must be announced by public notice
published as a Class II legal advertisement in compliance with
the provisions of article three, chapter fifty-nine of this code.
(3) A committee of three to five representatives of the agency initiating the request shall evaluate the statements of
qualifications and performance data and other material submitted
by interested firms and select a minimum of three firms which, in
their opinion, are best qualified to perform the desired service;
Provided, That on projects funded wholly or in part by school
building authority moneys, in accordance with sections fifteen
and sixteen, article nine-d, chapter eighteen of this code, two
of said three firms shall have had offices within this state for
a period of at least one year prior to submitting an expression
of interest regarding a project funded by school building
authority moneys.
(4) Interviews with each firm selected shall must be
conducted and the committee shall conduct discussions regarding
anticipated concepts and proposed methods of approach to the
assignment.
(5) After the committee has performed the actions required
by subdivision (4) of this subsection, the committee shall then
rank, in order of preference, no less than three professional
firms deemed to be the most highly qualified to provide the
services required, and shall commence scope of service and price
negotiations with the highest qualified professional firm for
architectural or engineering services or both. Should the agency
be unable to negotiate a satisfactory contract with the
professional firm considered to be the most qualified, at a fee
determined to be fair and reasonable, price negotiations with the firm of second choice
shall
commence. Failing accord with the
second most qualified professional firm, the committee shall
undertake price negotiations with the third most qualified
professional firm.
(6) Should the agency be unable to negotiate a satisfactory
contract with any of the selected professional firms, it shall
select additional professional firms in order of their competence
and qualifications and it shall continue negotiations in
accordance with this section until an agreement is reached;
Provided, however, That county boards of education may either
elect to start the selection process over in the original order
of preference or it may select additional professional firms in
order of their competence and qualifications and it shall
continue negotiations in accordance with this section until an
agreement is reached.
§5G-1-4. Contracts for architectural and engineering services;
selection process where total project costs are estimated to
cost less than two hundred fifty thousand dollars.
In the procurement of architectural and engineering services
for projects estimated to cost less than two hundred fifty
thousand dollars:
competition shall be sought by the agency.
(1) The agency shall seek and conduct discussions with three
or more professional firms solicited on the basis of known or
submitted qualifications for the assignment prior to the awarding
of any contract: Provided, That
if a judgment is made that special circumstances exist and that seeking competition is not
practical, the agency may,
with prior approval of the director of
purchasing,
select a firm on the basis of previous satisfactory
performance and knowledge of the agency's facilities and needs.
(A) The agency obtains prior approval from the director of
purchasing to use this noncompetitive selection process; and
(B) The director of purchasing determines one of the
following:
(i) The required contractual service is available only from
a single source;
(ii) There is an emergency which will not permit the time
necessary to conduct competitive negotiations;
(iii) After solicitation of a number of sources, competition
is inadequate; or
(iv) It is appropriate to use available services of a public
agency or educational institution.
(2) After selection, the agency and firm shall develop the
scope of services required and negotiate a contract.
§5G-1-5. Procurement by Subcontract of Public Involvement
Services.
(a) When it is necessary for a prime consultant to utilize
a subconsultant to perform public involvement services, cost shall be a factor in the selection of the subconsultant under the
following circumstances:
(1) When consultant contracts are estimated to cost less
than one million dollars and when the estimated public
involvement subcontract cost is greater than ten percent,
(
2) When consultant contracts are estimated to cost one
million dollars up to, and including, five million dollars, and
the estimated public involvement subcontract cost is greater than
eight percent,
and
(3) When consultant contracts are estimated to cost more
than five million dollars and the estimated public involvement
subcontract cost is greater than five percent.
(b) For purposes of this section, a "subconsultant" is any
business, educational institution, individual or public agency
with whom the consultant contracts to perform any portion of the
work provided for in the consultant's agreement with the Division
of Highways or in any supplemental agreements for that project.
§5G-1-6. Revision of the Code of State Rules.
Pursuant to the power established by section eight, article
two-A, chapter seventeen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, the Commissioner of
Highways shall adopt rules which effectuate the contents of
sections one through five of article one of this chapter, as
amended.
NOTE: The purpose of this bill is to limit noncompetitive
selection procedures to the procurement of architecture-engineer
services specifically identified as eligible for noncompetitive
procurement.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.