SENATE
HOUSE
JOINT
BILL STATUS
STATE LAW
REPORTS
EDUCATIONAL
CONTACT
home
home
Introduced Version Senate Bill 630 History

   |  Email
Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 630

(By Senators Minard, Sypolt, Williams, D. Facemire and Plymale)

____________

[Introduced February 19, 2010; referred to the Committee on Education; and then to the Committee on Finance.]

____________




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-9a, §5-22B-10, §5-22B-11, §5-22B-12, §5-22B- 13, §5-22B-14 and §5-22B-15, all relating to expanding the Design-Build Procurement Act; and authorization, policies and procedures for the lease-purchase of public schools, as well as other buildings.

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-9a, §5-22B-10, §5-22B-11, §5-22B-12, §5-22B-13, §5-22B-14 and §5-22B-15, all to read as follows:
ARTICLE 22B. FACILITY FINANCE-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 Lease-Purchase Act."
The provisions of this article must be used to select firms to leasing, 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.
For the purpose of this article:
(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 to determine whether a public project satisfies the requirements of this article.
(3) "Facility lease-purchase" 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, 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 the 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 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 which firm will then lease the facility 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 and construct any public project governed by the procedures of section seven, article six of this chapter, article twenty-two-a of this chapter and this article and 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 or 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 facility lease-purchase 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 venturers, 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 the three to five facility lease-purchase firms selected by the agency to respond to the invitation for proposals.
(14) "Responsive proposal" means a proposal that scores a minimum of seventy points out of a possible one hundred points in the qualitative evaluation. All such firms shall be ranked according to the clear, specific and measurable criteria established by the procuring agency.
(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 education and experience in the design, construction, operation, administration, finance and legal requirements of the project and users of the project selected by the agency to review, evaluate and score the statement of qualifications and invitation for proposal.
(18) "Work" means the design, construction and services required by the facility lease-purchase contract, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the facility lease-purchase firm to fulfill the facility lease-purchase contract obligations. The work may constitute the whole or a 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 promulgates and publishes legislative rules pursuant to section six of this article, 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 the rules; and
(3) The board established pursuant to section four, article twenty-two-a 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 pursuant to section four, article twenty-two-a, is terminated pursuant to the Acts of the Legislature, no agency may 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 to improve and monitor lease-purchase projects.

The Design-Build Board, as established by section four, article twenty-two-a, shall have the responsibility to 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 requirements 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 qualifications for public projects, the board must determine that the public project is appropriate as a facility lease-purchase project in accordance with all of 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 requirements 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 facility lease- purchase project until the requirements set forth in the board's approval and the requirements of this article are met, as determined by the board. In the case of the lease-purchase of a public school facility the board will forward a 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 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 pursuant to 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 a 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.
Each facility lease-purchase firm shall be licensed to do business in this state and shall be a firm or a joint venture of firms which shall include, 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 venturers, affiliates or consultants may not submit a proposal to enter into the 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 venturers, affiliates or other 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 request for proposals, given the nature of the public project and the level of design to be provided in the proposal.
(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 construction budget requirements, the performance criteria developer shall prepare for approval by the agency documents indicating the scale and relationship of project components.
§5-22B-9a. Invitation for qualifications; selection of 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 work;
(2) The evaluation criteria for selecting the three to five qualified facility lease-purchase firms; and
(3) A request for descriptive information or data supporting a facility lease-purchase firms 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 and 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) Qualifications, experience and licenses of key management and professional staff including contractors, architects and engineers;
(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 not fewer than three nor more than five of the most qualified facility lease-purchase firms to participate in the invitation 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 facility lease-purchase firms within ten working days of the selection.
§5-22B-10. Invitation for proposals.
(a) The agency shall prepare an invitation for proposals for the qualified facility lease-purchase firms, which must provide at a 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 proposals and their relative weight, and the procedures for making awards, 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 for the facility lease- purchase contract;
(4) The performance criteria;
(5) The description of the drawings, specifications or other information 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 facility lease-purchase contract;
(7) Budget limits for the facility lease-purchase contract, if any;
(8) Requirements or restrictions for the subletting of specific portions of the facility lease-purchase contract, if any; and
(9) Requirements for performance bonds, payment bonds, insurance, professional liability insurance and workers' compensation coverage: 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.
(b) The agency shall provide, as applicable, additional information to the facility lease-purchase firm, including, but not limited to, surveys, soil reports, drawings or information regarding existing structures, environmental studies, photographs or references to public records, or other pertinent information.
§5-22B-11. 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 cost submission 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. In the event 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 a 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 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 by negotiated 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 facility lease-purchase 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 firm not ultimately selected.
§5-22B-12. Acceptance of facility lease-purchase proposal.
(a) The facility lease-purchase firm shall submit the proposal to the agency as required in 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) In the event 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.
(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 promulgated pursuant to section six of this article.
(f) The agency shall notify the facility lease-purchase firms 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 facility lease-purchase firm may, within three days after receipt of such notification, request in writing a copy of the scores and all other factors used or considered in the selection process.
§5-22B-13. 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 a manner indicating that work, when completed, will be in accordance with the facility lease-purchase contract. On the basis of such 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 facility lease-purchase contract.
The performance criteria developer shall assist the agency in conducting inspections, to determine the date or dates 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-14. Withdrawal of proposals.
At the option of the facility lease-purchase firm, proposals may be withdrawn for any reason at any time prior to their opening without forfeiture of the security. Once opened, a proposal may be withdrawn for any reason prior to acceptance with forfeiture of the bid bond.
§5-22B-15. Severability.
The provisions of subsection (cc), section ten, article two, chapter two of this code shall 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 expand the "West Virginia Facility Lease-Purchase Act. This bill institutes authorization, policies and procedures for the lease-purchase of public schools, as well as other buildings.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Email WebmasterWebmaster   |   © 2024 West Virginia Legislature **


X

Print On Demand

Name:
Email:
Phone:

Print