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Introduced Version House Bill 2977 History

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hb2977 intr
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.
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