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.