Senate Bill No. 613
(By Senators Minard, Plymale, Williams and Sypolt)
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[Introduced February 19, 2010; referred to the Committee on
Education; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §5-22B-1, §5-22B-2,
§5-22B-3, §5-22B-4, §5-22B-5, §5-22B-6, §5-22B-7, §5-22B-8,
§5-22B-9, §5-22B-10, §5-22B-11, §5-22B-12, §5-22B-13,
§5-22B-14, §5-22B-15 and §5-22B-16, all relating to creating
the Facility Design-Build-Finance-Lease-Purchase Act;
including a short title and applicability of article;
definitions; stating public policy and conditions for
contracts; providing that the Design-Build Board is to approve
projects; duties of board; rules; performance criteria; scope
of project; qualifications and selection of facility lease-
purchase firms; proposals; acceptance of contract;
construction and final certification; withdrawal of proposals;
and providing for severability.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5-22B-1, §5-22B-2,
§5-22B-3, §5-22B-4, §5-22B-5, §5-22B-6, §5-22B-7, §5-22B-8,
§5-22B-9, §5-22B-10, §5-22B-11, §5-22B-12, §5-22B-13, §5-22B-14,
§5-22B-15 and §5-22B-16, all to read as follows:
ARTICLE 22B. FACILITY DESIGN-BUILD-LEASE-PURCHASE ACT.
§5-22B-1. Short title; applicability of article.
This article shall be known and may be cited as the "West
Virginia Facility Design-Build-Lease-Purchase Act."
The provisions of this article must be used to select firms to
design, build and finance authorized projects that are constructed
for lease to and ultimate purchase by any agency as defined under
section two of this article.
§5-22B-2. Definitions.
(1) "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.
(2) "Board" means the Design-Build Board established pursuant
to section four, article twenty-two-a of this chapter to determine
whether a public project satisfies the requirements of this
article.
(3) "Facility lease-purchase" means providing responsibility
within a single contract for the design, construction or alteration
of a building or buildings, together with incidental approaches, structures and facilities to be constructed, in which 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 licensed in the
State of West Virginia and in which 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, and which building, buildings,
structures and facilities will be leased to an agency by the firm
holding the facility lease-purchase contract. The facility lease-
purchase method of construction may not be used for any other
construction projects, such as highway, water or sewer projects.
(4) "Facility lease-purchase contract" means the contract
between an agency and a facility lease-purchase firm which provides
the design, construction, financing, labor and materials for the
same public project the firm will then lease to the agency. At
the completion of the contract term the facility will be purchased
by the agency for a consideration. A facility lease-purchase
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 facility lease-purchase
contract.
(5) "Facility lease-purchase firm" means the entity, whether
natural person, partnership, joint venture, corporation,
professional corporation, business association, limited liability company or other legal entity that proposes to design, build,
finance, lease and provide facility maintenance of any public
project governed by the procedures of section seven, article six of
this chapter, of article twenty-two-a of this chapter and this
article. And, a firm that is permitted by law to practice
engineering, architecture or construction contracting in the State
of West Virginia.
(6) "Invitation for proposals" means the document of
publication by which an agency solicits proposals for a facility
lease-purchase project.
(7) "Invitation for qualifications" means the document or
publication by which an agency solicits a statement of
qualifications from potential facility lease-purchase firms in
order to select three to five qualified firms to respond to the
agency's invitation for proposal.
(8) "Facility maintenance" means the facility's components and
systems, including, but not limited to, roof, HVAC, plumbing,
electrical, windows and doors.
(9) "Performance criteria" means the requirements for the
public project, including as appropriate, aesthetics, capacity,
durability, sustainability and efficiency, 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 facility lease-
purchase firms to make a proposal.
(10) "Performance criteria developer" means an architect or
engineer licensed under the laws of this state and, if applicable,
the architect's or engineer's employer, company, partners, joint
venture, affiliates or subcontractors retained by the agency to
develop performance criteria and to serve as the agency's technical
advisor.
(11) "Project" means that project described in the public
announcement.
(12) "Proposal" means an offer to enter into a lease-purchase
contract as further defined in this article.
(13) "Qualified facility lease-purchase firm" means one of
three to five qualified firms selected by the agency to respond to
the invitation for proposals. All such firms shall be ranked
according to the clear, specific and measurable criteria
established by the procuring agency,
(14) "Responsive proposal" means a proposal that scores a
minimum of seventy points out of a possible one hundred in the
qualitative evaluation.
(15) "Statement of qualifications" means descriptive
information or other data submitted by a facility lease-purchase
firm indicating its ability to satisfy the requirements set forth
in the invitation for qualifications.
(16) "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 facility lease-purchase contract so the agency can occupy or utilize the work for
its intended use.
(17) "Technical review committee" means the group of
individuals who have the education and experience in the design,
construction, operation, administration, finance and legal
requirements of the project selected by the agency to review,
evaluate and score the statement of qualifications and the
proposal.
(18) "Work" means the design, construction and services
required by the facility lease-purchase contract, whether completed
or partially completed, and includes all labor, materials,
equipment and services provided or to be provided by the facility
lease-purchase firm to fulfill the lease-purchase contract
obligations. The work may constitute the whole or part of the
project.
§5-22B-3. Public policy; conditions for contract.
(a) Recognizing that the facility lease-purchase method
provides a viable delivery method for public projects, it is the
public policy of this state to permit an agency to enter into
facility lease-purchase contracts for public projects.
(b) An agency may not enter into a facility lease-purchase
contract for a public project unless:
(1) The Department of Administration publishes rules that are
approved by the Legislature and consistent with this article for
the solicitation and award of facility lease-purchase contracts and adheres to this article and those rules;
(2) The agency, for each public project or projects procured
pursuant to this article, determines that it is in the best
interest of the public to enter into a facility lease-purchase
contract to complete the public project or projects and adheres to
this article and these rules;
(3) The board established pursuant to section four, article
twenty-two-a of this chapter determines that the public project is
appropriate as a facility lease-purchase project utilizing the
mandatory criteria as provided in section five of this article.
(c) When the Design-Build Board, established pursuit to
section four, article twenty-two-a of this chapter is terminated
pursuant to the Acts of the Legislature, an agency may not enter
into a facility lease-purchase contract
: Provided, That agencies
may pursue and complete any facility lease-purchase projects
approved by the board prior to its termination date.
§5-22B-4. Design-Build Board to approve and monitor lease-purchase
projects.
The Design-Build Board, as established by section four,
article twenty-two-a of this chapter may approve and monitor lease-
purchase projects.
§5-22B-5. Duties of board to approve and monitor projects.
(a) Upon receipt of information that an agency wants to pursue
the facility lease-purchase method of project delivery, the board, with the administrative support of the Secretary of the Department
of Administration, shall notify the agency that failure to comply
with the requirement of this article is a violation of state law.
The board shall notify the Secretary of the Department of
Administration of any agency knowingly proceeding without meeting
the requirements of this article.
(b) Prior to an agency issuing an invitation for qualification
for public projects, the board must determine that the public
project is appropriate as a facility lease-purchase project in
accordance with the following:
(1) The agency has the appropriate legal authority to enter
into a facility lease-purchase contract;
(2) The agency requires a facility lease-purchase contract as
an alternative method of financing the project;
(3) The agency will economically benefit from the facility
lease-purchase contract;
(4) The agency requires early cost commitments;
(5) The agency provides a written plan for funding the
project;
(6) In the case of the lease-purchase of a public school
facility, the board of education has submitted a written request
to the West Virginia School Building Authority to permit it to
enter into a lease-purchase contract for the public school
facility, and the West Virginia School Building Authority has
approved the request; and
(7) 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) Upon project approval under subsection (b) of this
section, the agency shall 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 requirement 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 at any time prior to
the start of construction. If the board withdraws its approval,
the agency may not proceed with the project as a lease-purchase
project until the requirement set forth in the board's approval and
the requirements of this article are met, as determined by the
board.
When the lease-purchase is for a public school facility, the
board will forward copy of the monthly reports and any approvals or
disapprovals to the West Virginia School Building Authority.
(d) On or before January 1 of each year, the board shall file
an annual report with the Joint Committee on Government and
Finance, and a copy of the report with the Legislative Librarian,
setting forth a description of the lease-purchase projects approved
during the preceding year, including copies of monthly monitoring
reports submitted to the board pursuant to subsection (c) of this
section.
§5-22B-6. Facility lease-purchase rules.
The Department of Administration shall propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code and consistent with this
article for the award of facility lease-purchase contracts which
provide at a minimum:
(1) The procedures to select or designate a performance
criteria developer and prepare performance criteria;
(2) The application process for approval of a facility lease-
purchase contract;
(3) The procedures for selecting the most qualified facility
lease-purchase firms prior to the release of the invitation for
proposals;
(4) The procedures for the preparation and contents of
invitations for proposals;
(5) The procedures for preparing and submitting proposals;
(6) The procedures for evaluating proposals;
(7) The procedures for negotiations between the agency and
those submitting proposals prior to the acceptance of the proposal,
if any such negotiations are contemplated;
(8) The procedures for awarding and executing facility lease-
purchase contracts;
(9) The procedures for awarding facility lease-purchase
contracts in the event of public emergencies as defined in the
applicable statutes;
(10) The procedures for acting on formal protests relating to
the solicitation or award of facility lease-purchase contracts; and
(11) Rules related specifically to lease-purchase contracts
between boards of education and facility lease-purchase firms.
§5-22B-7. Facility lease-purchase firm qualifications; duties and
powers.
(a) Each facility lease-purchase firm must be licensed to do
business in this state and shall be a firm or a joint venture of
firms which includes a licensed architect, engineer and general
contractor or construction manager.
§5-22B-8. Development of performance criteria.
(a) Each invitation for proposal must contain performance
criteria prepared by an architect or engineer licensed under the
laws of this state, referred to as the "performance criteria
developer." The agency shall select the performance criteria
developer in accordance with the requirements of article one,
chapter five-g of this code, and shall retain the performance
criteria developer through final completion of the project to
monitor adherence to the performance criteria.
(b) The agency may use its own employees to determine whether
the agency should seek a facility lease-purchase contract.
(c) The performance criteria developer and his or her
employer, company, partners, joint venture, affiliates or
consultants many not submit a proposal to enter into a facility
lease-purchase contract and may not perform services under the facility lease-purchase contract.
(d) The performance criteria developer may delegate the
development of specific aspects of the design criteria to an
architect or engineer licensed by this state and his or her
employer company, partners, joint venture, affiliates or
consultants.
§5-22B-9. Scope of project.
(a) The agency, in consultation with the performance criteria
developer, shall determine the scope and level of detail required
for the performance criteria. The performance criteria must be
detailed enough to permit qualified persons to submit proposals in
accordance with the invitation for proposals, given the nature of
the public project.
(b) The performance criteria developer shall review the
program furnished by the agency to ascertain the requirements of
the project and shall arrive at a mutual understanding of such
requirements with the agency.
(c) Based on the mutually agreed upon program, schedule and
budget requirements, the performance criteria developer shall
prepare for approval by the agency documents indicating the scale
and relationship of project components.
§5-22B-10. Invitation for qualifications; selection of the
facility lease-purchase firm.
(a) The agency shall publish an invitation for qualifications
which provides, at a minimum:
(1) A descriptive narrative of the type, scope and size of the
proposed facility;
(2) The evaluation criteria for selecting three to five
qualified facility lease-purchase firms;
(3) A request for descriptive information or data supporting
the facility lease-purchase firm's claim to be able to design,
build, finance, lease and maintain the facility, including, but
not limited to:
(A) Licensing, insurance and evidence of good standing within
the state; or in the case of a joint venture, each member of the
joint venture must provide the required information;
(B) Bonding ability;
(C) Experience and technical expertise;
(D) History of past performance;
(E) Qualification, experience and licenses of key management
and professional staff including architects, engineers and
contractors;
(F) Staffing capabilities;
(G) Current workload;
(H) Quality control and quality assurance policies and
programs;
(I) Safety record, including employee modification rating for
the past three years; and
(J) Anticipated source of financing
(b) The agency shall review the statements of qualifications and select no fewer than three nor more than five of the most
qualified facility lease-purchase firms to participate in the
invitations for proposals. If fewer than three firms are
determined to be qualified, the agency shall seek approval of the
design-build board to continue with the selection process.
(c) The agency shall make the results of the selection
available to the firms submitting statements of qualifications
within ten working days of the selection.
§5-22B-11. Invitations for proposals.
(a) The agency shall prepare an invitation for proposals for
the selected qualified facility lease-purchase firms, which must
provide at the minimum:
(1) The identity of the agency which will contract for the
facility lease-purchase;
(2) The procedures to be followed for submitting proposals,
the criteria for evaluation of the proposals and their relative
weight, the procedures for selecting the facility lease-purchase
firm, including a reference to the requirements of this article,
the legislative rules promulgated pursuant to section six of this
article and any specific requirements of the agency;
(3) The proposed terms and conditions of the facility lease-
purchase contract;
(4) The performance criteria;
(5) The description of drawings, specifications or other in
formation 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 the planned commencement and completion of
the facility lease-purchase contract;
(7) Budget limits for the lease-purchase contract, if any;
(8) Requirements or restrictions for subletting of specific
portions of the facility lease-purchase contract, if any;
(9) Requirements for performance bonds, payment bonds,
insurance, professional liability insurance and worker's
compensation coverage
: Provided, That an officer or employee of
this state or of any public agency, public authority, public
corporation, or other public entity, and any person acting or
purporting to act on behalf of any such officer or employee or
public entity may not require that any performance bond or payment
bond required or permitted by this section be obtained from any
particular surety company, agent, broker or producer.
(b) The agency shall provide, as applicable, additional
information to the facility lease-purchase firm, including, but
not limited to, surveys, soils reports, drawings or information
regarding existing structures, environmental studies, photographs
or references to public records or other pertinent information.
§5-22B-12. Proposals.
(a) An agency may require facility lease-purchase firms
invited to submit proposals to follow a two-phase proposal
submission process consisting of a conceptual phase and a comprehensive phase. Proposals should be prepared simply and
economically, providing a concise description of all required
components:
(b) Proposals shall be submitted in two separate, clearly
identified, sealed packages, with the first containing the
technical submission and the second containing the submission of
the cost and terms of the facility lease-purchase.
(c) Proposals may not be opened until expiration of the time
established for making proposals as set forth in the invitation for
proposals.
(d) The facility lease-purchase firm shall furnish a bid bond
not to exceed five percent of the maximum cost of six month's lease
payments as proposed for the lease-purchase contract. If the
proposal is accepted and the facility lease-purchase firm fails to
execute the contract, the bid bond will be forfeited.
(e) To the extent required in the invitation for proposal,
the facility lease-purchase firm shall identify each firm to whom
the facility lease-purchase firm proposes to sublet obligations
under the contract. At the minimum, the facility lease-purchase
firm shall identify each firm responsible for the design and
primary construction and their affiliation to the facility lease-
purchase firm.
(f) The facility lease-purchase firm shall specify in the
proposal how it will provide facility component and system
maintenance during the term of the lease.
(g) The facility lease-purchase firm shall specify in the
proposal the terms and cost of the lease-purchase contract,
including the cost to the agency for purchasing the facility at the
termination of the lease 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
negotiated by agreement between the agency and the facility lease-
purchase firm.
(h) Prior to the award of the facility lease-purchase
contract, all drawings, specifications and other information
submitted in the proposal shall remain the property of the firm
submitting the proposal. Additionally, prior to the award of the
facility lease-purchase 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
facility lease-purchase contract.
(i) Proposals may not be amended during the review process.
(j) At the discretion of the agency, a stipend may be paid to
the facility lease-purchase firms not ultimately selected.
§5-22B-13. Acceptance of the facility lease-purchase contract.
(a) The facility lease-purchase firm shall submit the
proposal to the agency as required by 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 facility lease-purchase firm. The
performance criteria developer must certify that the proposal
complies with the performance criteria.
(b) If the agency receives fewer than three proposals, the
board shall, in consultation with the Secretary of the Department
of Administration, determine whether the agency may proceed or
shall start the invitations for qualifications process over again.
(c) After receiving the proposals, the technical review
committee shall evaluate and score the technical submissions based
upon the criteria and procedures set forth in the invitation for
proposals.
(d) The agency shall submit the technical submissions,
including the scores of the technical submissions, to the board.
The agency shall make the scores of the technical submissions
available for public review.
(e) The board shall ascertain that the technical submissions
comply with the requirements of this article and shall notify the
agency of its approval. The agency shall open the cost submissions
and accept the proposal that receives the best score, as set forth
in the legislative rules proposed and approved pursuant to section
six of this article.
(f) The agency shall notify the facility lease-purchase firm in writing that its proposal was accepted. At the same time notice
of acceptance is delivered, the agency shall also inform in writing
the facility lease-purchase firms whose proposals were not
accepted. When a facility lease-purchase firm receives
notification that its proposal was not accepted, the firm may,
within three days after receipt of the notification, request in
writing a copy of the scores and all other factors used or
considered in the selection process.
§
5-22B-14. Construction and final certification.
The performance criteria developer must visit the site at
intervals appropriate to the stage of construction to become
generally familiar with the progress and quality of the work
completed and to determine in general if the work is being
performed in such a manner indicating that work, when completed,
will be in accordance with the lease-purchase contract. On the
basis of the on-site observations the performance criteria
developer shall keep the agency informed of the progress of the
work on the project and shall endeavor to guard the agency against
defects and deficiencies in the work. If the project is a public
school, the board of education shall forward a copy of the
performance criteria developer's report to the West Virginia School
Building Authority.
The performance criteria developer shall assist the agency in
determining whether the agency shall reject work which does not
conform to the lease-purchase contract.
The performance criteria developer shall assist the agency in
conducting inspections, to determine the date or date of
substantial completion and of final completion, and shall review
and approve, or take other appropriate action regarding the
contractor's list of items to be completed or corrected, and shall
forward the list to the agency for final disposition. The
performance criteria developer shall issue to the agency a final
certification in writing with respect to final acceptance of the
project if the project is a public school, the board of education
shall forward copies of the performance criteria developer's list
of items to be completed or corrected and final certification to
the West Virginia School Building Authority.
§
5-22B-15. Withdrawal of proposals.
At the option of the facility lease-purchase firm, proposals
may be withdrawn for any reason prior to their opening without
forfeiture of the security. Once opened, a proposal may be
withdrawn for any reason prior to acceptance of the bid bond.
§5-22B-16. Severability.
The provisions of subsection (cc), section ten, article two,
chapter two of this code apply to the provisions of this chapter to
the same extent as if the same were set forth in extension herein.
NOTE: The purpose of this bill is to
create the Facility
Design-Build-Finance-Lease-Purchase Act
.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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