H. B. 2977
(By Mr. Speaker, (Mr. Thompson) and Delegate Armstead)
[By Request of the Executive]
[Introduced March 6, 2009; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §5G-1-2 of the Code of West Virginia,
1931, as amended; to amend said code by adding thereto a new
section, designated §5G-1-5; to amend and reenact §17-2A-22 of
said code; and to amend said code by adding thereto a new
section, designated §31-15A-15a, all relating to the
procurement of engineering services; defining certain terms;
exempting the procurement of engineering services for certain
projects funded by the Division of Highways and the Water
Development Authority from chapter five-g of this code;
requiring the Commissioner of Highways to establish certain
qualification criteria for engineering and design firms;
requiring the Division of Highways to annually select and
classify qualifying engineering and design firms; establishing requirements for the procurement of certain engineering and
design services by the Division of Highways; establishing
certain bonding requirements; granting a preference to certain
West Virginia firms; requiring the Infrastructure and Jobs
Development Council to establish certain qualification
criteria for engineering firms; requiring the Infrastructure
and Jobs Development Council to annually select qualifying
engineering firms; establishing requirements for governmental
agencies for the procurement of engineering services for
certain water development projects; and authorizing the
promulgation of rules.
Be it enacted by the Legislature of West Virginia:
That §5G-1-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §5G-1-5; that §17-2A-22 of said
code be amended and reenacted; and that said code be amended by
adding thereto a new section, designated §31-15A-15a, all to read
as follows:
CHAPTER 5G. PROCUREMENT OF ARCHITECT-ENGINEER
SERVICES BY STATE AND ITS SUBDIVISIONS.
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, quasipublic corporations and all political
subdivisions, including cities, counties, boards of education and
public service districts.
except for the purposes of this section,
the term "agency" does not include the state institutions of higher
education known as Marshall University and West Virginia University
(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.
(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.
(e) The term "state funds" means any moneys of the state or
any of its political subdivisions, excluding any financial
assistance from the United States government, whether such assistance is a loan, grant, subsidy, augmentation, reimbursement
or any other form of assistance.
§5G-1-5. Exclusions.
This chapter shall not apply to the following:
(a) the state institutions of higher education known as
Marshall University and West Virginia University;
(b) The procurement of engineering and design services on
behalf of the Division of Highways where the services will be
funded wholly with state funds; and
(c) The procurement of engineering services for any project
financed, in whole or in part, from funds made available by grant
or loan by, or though, the Water Development Authority where the
services will be funded wholly with state funds.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 2A. WEST VIRGINIA COMMISSIONER OF HIGHWAYS.
§17-2A-22. Administration of engineering and design related
service contracts.
(a) For the purposes of this section, the following
definitions apply:
(1) "Engineering and design services" means those professional
services of an engineering and design nature as well as incidental
services that members of that profession and those in their employ may logicdally or justifiably perform.
(2) "Firm" or "professional firm" means any individual, firm,
partnership, corporation, association or other legal entity
permitted by law to practice the profession of engineering and
design.
(3) "State funds" means any moneys of the state or any of its
political subdivisions, excluding any financial assistance from the
United States government, whether such assistance is a loan, grant,
subsidy, augmentation, reimbursement or any other form of
assistance.
(b) In order to promote engineering and design quality and to
ensure maximum competition by professional
companies firms of all
sizes providing engineering and design services, the Commissioner
of Highways may establish cost principles for determining the
reasonableness and allowability of various costs. These cost
principles will govern the overhead ceilings, salary limits,
expense reimbursement and any other cost the commissioner may deem
necessary to regulate. The Commissioner of Highways shall propose
a legislative rule pursuant to article three, chapter twenty-nine-a
of this code regarding standard cost principles for determining the
reasonableness and allowability of various costs. The legislative
rule may include provisions for deviations from the standard cost principles in special situations and circumstances.
(c) (1) The commissioner shall, on an annual basis, establish
criteria pertaining to the procurement of engineering and design
services and shall set forth therein the qualifications required
for professional firms to provide engineering and design services
through contracts with the Division of Highways. The commissioner
also shall establish a tiered classification system that classifies
professional firms on the basis of the scope of engineering or
design services that the firms are qualified to provide.
(2) The division shall advertise for letters of interest to
be submitted by professional firms interested in providing
engineering and design services through contracts with the
division. The division shall request that each firm include in the
letter a statement of qualifications and performance data. The
division shall advertise for the submission of letters of interest
by publishing a Class II legal advertisement, in compliance with
article three, chapter fifty-nine of this code, that shall be
published in at least one daily newspaper published in the city of
Charleston, West Virginia. The division also may advertise for the
submission of letters of interest in other newspapers, magazines or
trade journals.
(3) A committee of three to five representatives of the division shall review the letters of interest and evaluate the
qualifications of the firms. The committee shall select firms that
meet the qualifications criteria established by the commissioner in
accordance with subdivision (1) of this subsection and shall
classify the firms selected in accordance with the tiered
classification system also established in accordance with that
subdivision. A firm selected and classified by the committee shall
be qualified to submit proposals to the Division of Highways in
accordance with subsection (d) of this section to provide
engineering and design services described within the firm's
classification tier. These firms are referred to throughout this
section as "qualified firms." The committee may not select or
classify a firm that is disbarred pursuant to section thirty-three-
e, article three, chapter five-a of this code.
(d) Notwithstanding any provision of this code to the
contrary, where engineering and design services will be funded
wholly with state funds, the following provisions apply:
(1) The division shall solicit sealed proposals from each
qualified firm classified within the classification tier required
to provide the services by electronic mail or other electronic
transmission. At the request of a qualified firm, the division
shall provide it written notice seeking solicitations for sealed proposals. The division also shall solicit sealed proposals by
publishing notice through any advertising medium the commissioner
deems advisable. Solicitations for sealed proposals shall:
(i) Accurately describe the scope of engineering and design
services the division seeks and include the classification tier
required to provide the services;
(ii) State the time and place for the opening of the
proposals; and
(iii) Reserve the right of the division to reject any and all
proposals.
(2) Sealed proposals submitted in accordance with this
subsection shall be accompanied by a bond in the form of a
certified check for an amount to be determined by the division that
is not less than $500 or greater than five percent of the aggregate
amount of the qualified firm's proposal.
(3) The division shall award a contract for engineering and
design services to the qualified firm submitting the lowest
proposal price: Provided, That the division may negotiate with the
qualified firm submitting the lowest proposal price and, if an
accord cannot be reached with that qualified firm, may negotiate
and contract with any of the other qualified firms submitting
proposals: Provided, however, That the division may reject any and all proposals submitted to it in accordance with this subsection
and either may complete the project with state resources or may
resolicit sealed proposals.
(4) In determining the qualified firm with the lowest
submitted proposal price, the division shall afford a five percent
preference to a West Virginia firm. A "West Virginia firm" is a
firm that has resided in West Virginia continuously for four years
immediately preceding the date of the submission of its proposal or
has maintained its headquarters or principal place of business
within the state continuously for four years immediately preceding
the date of the submission of its proposal. The preference shall
be computed by subtracting five percent of the proposal price from
the proposal price submitted by a West Virginia firm. In the case
of a tie between a West Virginia firm and a firm that is not a West
Virginia firm, the West Virginia firm shall be considered the firm
with the lowest proposal price.
(5) A qualified firm awarded a contract in accordance with
this subsection shall furnish a sufficient performance bond, as
determined by rules promulgated by the commissioner.
(6) If a change in the scope of a contract for engineering and
design services awarded in accordance with this subsection is
proposed or requested by a firm or the division, any fees or costs associated with the contract shall be subject to renegotiation.
(7) Notwithstanding any provision of this subsection to the
contrary, in the case of an emergency affecting public health,
safety or convenience, the division may award a contract for
engineering and design services without complying with the
requirements of this subsection: Provided, That the commissioner
certifies in writing that an emergency affecting public health,
safety or convenience exists and sets forth the precise nature
thereof. Such certification shall immediately be made public by
the division.
(e) The commissioner shall promulgate legislative rules,
including emergency rules, in accordance with article three,
chapter twenty-nine-a of this code, that implement subsections (c)
and (d) of this section.
CHAPTER 31. CORPORATIONS.
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-15a. Procurement of engineering services for water
development projects.
(a) For the purposes of this section, the following
definitions apply:
(1) "Engineering services" means those professional services of an engineering nature as well as incidental services that
members of that profession and those in their employ may logically
or justifiably perform.
(2) "Firm" or "professional firm" means any individual, firm,
partnership, corporation, association or other legal entity
permitted by law to practice the profession of engineering.
(3) "State funds" means any moneys of the state or any of its
political subdivisions, excluding any financial assistance from the
United States government, whether such assistance is a loan, grant,
subsidy, augmentation, reimbursement or any other form of
assistance.
(4) "Water development project" means a project which is
financed, in whole or in part, from funds made available by grant
or loan by, or through, the Water Development Authority in
accordance with article one, chapter twenty-two-c of this code or
in accordance with this article.
(b) (1) The Infrastructure and Jobs Development Council shall,
on an annual basis, establish criteria pertaining to the
procurement of engineering services and shall set forth therein the
qualifications required for professional firms to provide
engineering services to governmental agencies for water development
projects.
(2) The council shall advertise for letters of interest to be
submitted by professional firms interested in providing engineering
services for water development projects. The council shall request
that each firm include in the letter a statement of qualifications
and performance data. The council shall advertise for the
submission of letters of interest by publishing a Class II legal
advertisement, in compliance with article three, chapter fifty-nine
of this code, that shall be published in at least one daily
newspaper published in the city of Charleston, West Virginia. The
council also may advertise for the submission of letters of
interest in other newspapers, magazines or trade journals.
(3) The council, or a designated subcommittee, shall review
the letters of interest and evaluate the qualifications of the
firms. The council shall select firms that meet the qualifications
criteria established in accordance with subdivision (1) of this
subsection. A firm selected by the council shall be qualified to
submit proposals to provide engineering services for water
development projects. These firms are referred to throughout this
section as "qualified firms." The council may not select a firm
that is disbarred pursuant to section thirty-three-e, article
three, chapter five-a of this code. The council may seek the
assistance and expertise of other state agencies when evaluating and selecting qualified firms.
(c) Notwithstanding any provision of this code to the
contrary, where engineering services for water development projects
will be funded wholly with state funds, the following provisions
apply:
(1) The governmental agency seeking engineering services shall
solicit sealed proposals from qualified firms by publishing a Class
II legal advertisement, in compliance with article three, chapter
fifty-nine of this code, in the county in which the services will
be provided and through any other advertising medium the
governmental agency deems advisable. The notice shall:
(i) Accurately describe the scope of engineering services the
governmental agency seeks;
(ii) State the time and place for the opening of the
proposals; and
(iii) Reserve the right of the governmental agency to reject
any and all proposals.
(2) Sealed proposals submitted in accordance with this
subsection shall be accompanied by a bond in the form of a
certified check for an amount to be determined by the governmental
agency that is not less than $500 or greater than five percent of
the aggregate amount of the qualified firm's proposal.
(3) The governmental agency shall award a contract for
engineering services to the qualified firm submitting the lowest
proposal price: Provided, That the governmental agency may
negotiate with the qualified firm submitting the lowest proposal
price and, if an accord cannot be reached with that qualified firm,
may negotiate and contract with any of the other qualified firms
submitting proposals: Provided, however, That the governmental
agency may reject any and all proposals submitted to it in
accordance with this subsection and may resolicit sealed proposals:
Provided further, That the council approves of the awarding of the
contract to the qualified firm.
(4) In determining the qualified firm with the lowest
submitted proposal price, the governmental agency shall afford a
five percent preference to a West Virginia firm. A "West Virginia
firm" is a firm that has resided in West Virginia continuously for
four years immediately preceding the date of the submission of its
proposal or has maintained its headquarters or principal place of
business within the state continuously for four years immediately
preceding the date of the submission of its proposal. The
preference shall be computed by subtracting five percent of the
proposal price from
the proposal price submitted by a West Virginia
firm. In the case of a tie between a West Virginia firm and a firm that is not a West Virginia firm, the West Virginia firm shall be
considered the firm with the lowest proposal price.
(5) A qualified firm awarded a contract in accordance with
this subsection shall furnish a sufficient performance bond, as
determined by rules promulgated by the council.
(6) If a change in the scope of a contract for engineering
services awarded in accordance with this subsection is proposed or
requested by a firm or a governmental agency, any fees or costs
associated with the contract shall be subject to renegotiation.
Any proposed changes or amendments to a contract for engineering
services awarded in accordance with this subsection shall be
subject to the approval of the council.
(d) The council shall promulgate legislative rules, including
emergency rules, in accordance with article three, chapter twenty-
nine-a of this code, to implement this section.
NOTE: The purpose of this bill is to require competitive
bidding for selection of professional engineering and design firms
for projects funded by the Division of Highways that are not funded
by federal funds and to require competitive bidding for selection
of professional engineering firms for projects funded by the Water
Development Authority that are not funded by federal funds.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.