H. B. 3150
(By Delegates Calvert, Amores, Craig and Palumbo)
[Introduced February 21, 2003; referred to the
Committee on the Judiciary.]
A Bill to amend and reenact section one, article twenty-two,
chapter five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
ten, article twenty-two-a of said chapter; to amend and
reenact section fourteen, article eleven-b, chapter seven of
said code; and to amend and reenact section thirty-nine,
article two, chapter thirty-eight of said code, all relating
to requirements for performance, payment, bid and surety
bonds.
Be it enacted by the Legislature of West Virginia:
That section one, article twenty-two, chapter five of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that section ten, article twenty-two-a,
of said chapter be amended and reenacted; that section fourteen,
article eleven-b, chapter seven of said code be amended and
reenacted; and that section thirty-nine, article two, chapter thirty-eight of said code be amended and reenacted, all to read as
follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS;
MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 22. GOVERNMENT CONSTRUCTION CONTRACTS.
§5-22-1.Bidding required; government construction contracts to
go to qualified responsible bidder; debarment;
exceptions.
(a) As used in this section, "the state and its subdivisions"
means the state of West Virginia, every political subdivision
thereof, every administrative entity that includes such a
subdivision, all municipalities and all county boards of education.
(b) The state and its subdivisions shall, except as provided
in this section, solicit competitive bids for every construction
project exceeding twenty-five thousand dollars in total cost:
Provided, That a vendor who has been debarred pursuant to the
provisions of sections thirty-three-a through thirty-three-f,
article three, chapter five-a of this code, may not bid on or be
awarded a contract under this section.
(c) Following the solicitation of such bids, the construction
contract shall be awarded to the lowest qualified responsible
bidder, who shall furnish a sufficient performance and payment bond
: Provided, That the state and its subdivisions may reject all bids
and solicit new bids on said project.
(d) 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 surety bond required or
permitted by this section be obtained from any particular surety
company, agent, broker, or producer.
(d) (e) Nothing in this section shall apply to:
(1) Work performed on construction or repair projects by
regular full-time employees of the state or its subdivisions;
(2) Prevent students enrolled in vocational educational
schools from being utilized in construction or repair projects when
such use is a part of the students training program;
(3) Emergency repairs to building components and systems. For
the purpose of this subdivision, emergency repairs means repairs
that if not made immediately will seriously impair the use of such
building components and systems, or cause danger to those persons
using such building components and systems; and
(4) Any situation where the state or a subdivision thereof
shall come to an agreement with volunteers, or a volunteer group,
whereby the governmental body will provide construction or repair
materials, architectural, engineering, technical or any other
professional services and the volunteers will provide
the necessary labor without charge to, or liability upon, the
governmental body.
ARTICLE 22A. DESIGN-BUILD PROCUREMENT ACT.
§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: 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 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.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 11B. WEST VIRGINIA TAX INCREMENT FINANCING ACT.
§7-11B-14. Projects financed by tax increment financing
considered to be public improvements subject to
prevailing wage, local labor preference and
competitive bid requirements.
(a) Any project acquired, constructed, or financed, in whole
or in part, by a county commission or municipality under this
article shall be considered to be a "public improvement" within the
meaning of the provisions of articles one-c and five-a, chapter
twenty-one of this code.
(b) The county commission or municipality shall, except as
provided in subsection (c) of this section, solicit or require
solicitation of competitive bids and require the payment of
prevailing wage rates as provided in article five-a, chapter
twenty-one of this code and compliance with article one-c of said
chapter for every project or infrastructure project funded pursuant
to this article exceeding twenty-five thousand dollars in total
cost.
(c) Following the solicitation of the bids, the construction
contract shall be awarded to the lowest qualified responsible
bidder, who shall furnish a sufficient performance and payment
bond: Provided, That the county commission, municipality or other
person soliciting the bids may reject all bids and solicit new bids
on the project.
(d) 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.
(d) (e) This section does not:
(1) Apply to work performed on construction projects not
exceeding a total cost of fifty thousand dollars by regular
full-time employees of the county commission or the municipality: Provided, That no more than fifty thousand dollars shall be
expended on an individual project in a single location in a
twelve-month period;
(2) Prevent students enrolled in vocational educational
schools from being used in construction or repair projects when
such use is a part of the students' training program;
(3) Apply to emergency repairs to building components and
systems: Provided, That the term "emergency repairs" means repairs
that, if not made immediately, will seriously impair the use of the
building components and systems or cause danger to those persons
using the building components and systems; or
(4) Apply to any situation where the county commission or
municipality comes to an agreement with volunteers, or a volunteer
group, by which the governmental body will provide construction or
repair materials, architectural, engineering, technical or any
other professional services and the volunteers will provide the
necessary labor without charge to, or liability upon, the
governmental body: Provided, That the total cost of the
construction or repair projects does not exceed fifty thousand
dollars.
(e) (f) The provisions of subsection (b) of this section apply
to privately owned projects or infrastructure projects constructed
on lands not owned by the county commission, a municipality or a
government agency or instrumentality when the owner or the owner's
agent or person financing the owner's project receives money from the tax increment financing fund for the owner's project.
CHAPTER 38. LIENS.
ARTICLE 2. MECHANICS' LIENS.
§ 38-2-39. Public building; bond of contractor; recordation of
bond; no lien in such case.
It shall be the duty of the state commissioner of public
institutions, and of all county courts, boards of education, boards
of trustees, and other legal bodies having authority to contract
for the erection, construction, improvement, alteration or repair
of any public building or other structure, or any building or other
structure used or to be used for public purposes, to require of
every person to whom it shall award, and with whom it shall enter
into, any contract for the erection, construction, improvement,
alteration or repair of any such public building or other structure
used or to be used for public purposes, that such contractor shall
cause to be executed and delivered to the secretary of such
commissioner or other legal body, or other proper and designated
custodian of the papers and records thereof, a good, valid, solvent
and sufficient bond, in a penal sum equal at the least to the
reasonable cost of the materials, machinery, equipment and labor
required for the completion of such contract, and conditioned that
in the event such contractor shall fail to pay in full for all such
materials, machinery, equipment and labor delivered to him for use
in the erection, construction, improvement, alteration or repair of
such public building or other structure, or building or other structure used or to be used for public purposes, then such bond
and the sureties thereon shall be responsible to such materialman,
furnisher of machinery or equipment, and furnisher or performer of
such labor, or their assigns, for the full payment of the full
value thereof.
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 surety bond
required or permitted by this section be obtained from any
particular surety company, agent, broker, or producer.
All such bonds shall have as surety thereon either some
incorporated bonding and/or surety company authorized to carry on
business in this state, or in lieu of such corporate surety the
contractor may deposit as security for such bond with the said
state commissioner of public institutions, county court, board of
education, board of trustees or other legal body having authority
so to contract, a sum in cash or bonds and securities of the United
States of America or of the state of West Virginia of sufficient
amount and value equal at least to the reasonable cost of
materials, machinery, equipment and labor required for the
completion of such contract. Immediately upon the acceptance of
either of said bonds by the state commissioner of public
institutions, county court, board of education and board of
trustees, or other legal body, the bond shall be recorded by the secretary of such commissioner or other legal body, or by the
proper designated custodian of the papers or records thereof, in
the office of the clerk of the county court of the county or
counties wherein such work is to be done and where such materials,
machinery or equipment are to be delivered, and no such contract
shall be binding and effective upon either party or parties thereto
until such bond has been executed, delivered and recorded as
aforesaid.
Nothing in this article shall be construed to give a lien upon
such a public building or improvement as is mentioned in this
section, or upon the land upon which such public building or
improvement is situated.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.