Senate Bill No. 766
(By Senators Bowman, Browning, Foster, Kessler, Palumbo, Snyder,
White, Williams and Yost)
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[Originating in the Committee on Government Organization;
reported March 30, 2009.]
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A BILL to amend and reenact §5G-1-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §31-15A-2 and §31-15A-
15 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 for sewer and water
infrastructure projects funded by the Infrastructure and Jobs
Development Council; defining certain terms; prohibiting the
state or its subdivisions from contracting with a person or
firm to provide engineering services for a project or
infrastructure project unless such person or firm has been
qualified by the Infrastructure and Jobs Development Council;
setting forth a process for the qualification of persons or
firms to provide engineering services for projects or
infrastructure projects; requiring the state or its
subdivisions to notify the Infrastructure and Jobs Development Council of proposed contracts for engineering services;
prohibiting the state or its political subdivisions from
entering into a contract for engineering services for a
project or infrastructure project that has not been approved
by the applicable technical review committee; providing for
the administration of local sewer and/or water infrastructure
projects by regional councils; and providing for legislative
rulemaking.
Be it enacted by the Legislature of West Virginia:
That §5G-1-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §31-15A-2 and §31-15A-15 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-1-3. Contracts for architectural and engineering services;
selection process where total project costs are estimated to
cost $250,000 or more.
In the procurement of architectural and engineering services
for projects estimated to cost $250,000 or more, the director of
purchasing shall encourage such firms engaged in the lawful
practice of the profession to submit an expression of interest, which shall include a statement of qualifications and performance
data, and may include anticipated concepts and proposed methods of
approach to the project. All such jobs shall be announced by
public notice published as a Class II legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code. A committee of three to five representatives of the
agency initiating the request shall evaluate the statements of
qualifications and performance data and other material submitted by
interested firms and select three firms which, in their opinion,
are best qualified to perform the desired service: Provided, That
on projects funded wholly or in part by School Building Authority
moneys, in accordance with sections fifteen and sixteen, article
nine-d, chapter eighteen of this code, two of said three firms
shall have had offices within this state for a period of at least
one year prior to submitting an expression of interest regarding a
project funded by School Building Authority moneys: Provided,
however, That for projects or infrastructure projects funded
pursuant to article fifteen-a, chapter thirty-one of this code, the
firms shall be qualified in accordance with section fifteen-a,
article fifteen-a, chapter thirty-one of this code. Interviews
with each firm selected shall be conducted and the committee shall
conduct discussions regarding anticipated concepts and proposed
methods of approach to the assignment. The committee shall then
rank, in order of preference, no less than three professional firms deemed to be the most highly qualified to provide the services
required, and shall commence scope of service and price
negotiations with the highest qualified professional firm for
architectural or engineering services or both: Provided further,
That for projects or infrastructure projects funded pursuant to
article fifteen-a, chapter thirty-one of this code,
the committee
shall follow the procedures set forth in subsection (c), section
fifteen-a, article fifteen-a, chapter thirty-one of this code.
Should the agency be unable to negotiate a satisfactory contract
with the professional firm considered to be the most qualified, at
a fee determined to be fair and reasonable, price negotiations with
the firm of second choice shall commence. Failing accord with the
second most qualified professional firm, the committee shall
undertake price negotiations with the third most qualified
professional firm. Should the agency be unable to negotiate a
satisfactory contract with any of the selected professional firms,
it shall select additional professional firms in order of their
competence and qualifications and it shall continue negotiations in
accordance with this section until an agreement is reached: And
provided further, That county boards of education may either elect
to start the selection process over in the original order of
preference or it may select additional professional firms in order
of their competence and qualifications and it shall continue
negotiations in accordance with this section until an agreement is reached.
CHAPTER 31. CORPORATIONS
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-2. Definitions.
For purposes of this article:
(a) "Bond" or "infrastructure revenue bond" means a revenue
bond, note or other obligation issued by the water development
authority pursuant to this article, including bonds to refund such
bonds and notes to renew such notes, and notes in anticipation of
and payable from the proceeds of such bonds.
(b) "Code" means the Code of West Virginia, 1931, as amended;
(c) "Cost" means, as applied to any project to be financed, in
whole or in part, with infrastructure revenues or funds otherwise
provided pursuant to this article, the cost of planning,
acquisition, improvement and construction of the project; the cost
of preliminary design and analysis, surveys, borings; the cost of
environmental, financial, market and engineering feasibility
studies, assessments, applications, approvals, submissions or
clearances; the cost of preparation of plans and specifications and
other engineering services; the cost of acquisition of all land,
rights-of-way, property rights, easements, franchise rights and any
other interests required for the acquisition, repair, improvement
or construction of the project; the cost of demolishing or removing any buildings or structures on land so acquired, including the cost
of acquiring any lands to which buildings or structures may be
moved; the cost of excavation, grading, shaping or treatment of
earth, demolishing or removing any buildings or structures; the
cost of constructing any buildings or other improvements; the cost
of all pumps, tanks, vehicles, apparatus and other machinery,
furnishings and equipment; loan or origination fees and all finance
charges and interest incurred prior to and during the construction
and for no more than six months after completion of construction;
the cost of all legal services and expenses; the cost of all plans,
specifications, surveys and estimates of cost; all working capital
and other expenses necessary or incident to determining the
feasibility or practicability of acquiring, repairing, improving or
constructing any project; the cost of placing any project in
operation; and all other costs and expenses of any kind or nature
incurred or to be incurred by the project sponsor developing the
project that are reasonable and necessary for carrying out all
works and undertakings necessary or incident to the accomplishment
of any project: Provided, That costs shall not include any amounts
related to the ongoing operations of the owner or operator,
depreciation thereof or any other cost which the council or the
water development authority has not determined to be consistent
with the purposes and objectives of this article;
(d) "Council" means the West Virginia Infrastructure and Jobs Development Council created in section three of this article;
(e) "Division of Environmental Protection" means the Division
of Environmental Protection established under article one, chapter
twenty-two of this code or any successor to all or any substantial
part of its powers and duties;
(f) "Division of Health" means the Division of Health created
in article one, chapter sixteen of this code or any successor to
all or any substantial part of its powers and duties;
(g) "Economic Development Authority" means the Economic
Development Authority established under article fifteen, chapter
thirty-one of the code or any successor to all or any substantial
part of its powers and duties;
(h) "Emergency project" means a project which the council has
determined:
(1) Is essential to the immediate economic development of an
area of the state; and
(2) Will not likely be developed in that area if construction
of the project is not commenced immediately;
(I) "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.
(i)(j) "Governmental agency" means any county; municipality;
watershed improvement district; assessment district; soil conservation district; sanitary district; public service district;
drainage district; regional governmental authority and any other
state governmental agency, entity, political subdivision or public
corporation or agency authorized to acquire, construct or operate
water or wastewater facilities or infrastructure projects;
(j)(k) "Housing Development Fund" means the West Virginia
Housing Development Fund established under article eighteen of this
chapter or any successor to all or any substantial part of its
powers and duties;
(k)(l) "Infrastructure Fund" means the West Virginia
Infrastructure Fund created and established in section nine of this
article;
(l)(m) "Infrastructure project" means a project in the state
which the council determines is likely to foster and enhance
economic growth and development in the area of the state in which
the project is developed, for commercial, industrial, community
improvement or preservation or other proper purposes, including,
without limitation, tourism and recreational housing, land, air or
water transportation facilities and bridges, industrial or
commercial projects and facilities, mail order, warehouses,
wholesale and retail sales facilities and other real and personal
properties, including facilities owned or leased by this state or
any other project sponsor, and includes, without limitation:
(1) The process of acquiring, holding, operating, planning, financing, demolition, construction, improving, expanding,
renovation, leasing or otherwise disposing of the project or any
part thereof or interest therein; and
(2) Preparing land for construction and making, installing or
constructing improvements on the land, including water or
wastewater facilities or any part thereof, steam, gas, telephone
and telecommunications and electric lines and installations, roads,
bridges, railroad spurs, buildings, docking and shipping
facilities, curbs, gutters, sidewalks, and drainage and flood
control facilities, whether on or off the site;
(m)(n) "Infrastructure revenue" means all amounts appropriated
by the Legislature; all amounts deposited into the infrastructure
fund; any amounts received, directly or indirectly, from any source
for the use of all or any part of any project completed pursuant to
this article; and any other amounts received by the state
treasurer, council or the water development authority for the
purposes of this article;
(n)(o) "Need of the project sponsors" means there is a public
need for a project. The council shall construe a population
increase evidenced by the last two decennial censuses in a county
in which a project is proposed, as a factor supporting the
conclusion that a need exists for projects in that county.
(o)(p) "Project" means any wastewater facility, water facility
project or any combination thereof, constructed or operated or to be constructed or operated by a project sponsor;
(p)(q) "Project sponsor" means any governmental agency or
person, or any combination thereof, including, but not limited to,
any public utility, which intends to plan, acquire, construct,
improve or otherwise develop a project;
(q)(r) "Public Service Commission" means the Public Service
Commission of West Virginia created and established under section
three, article one, chapter twenty-four of this code or any
successor to all or any substantial part of its powers and duties;
(r)(s) "Person" means any individual, corporation,
partnership, association, limited liability company or any other
form of business organization;
(s)(t) "Public utility" means any person or persons, or
association of persons, however associated, whether incorporated or
not, including, without limitation, any governmental agency,
operating a wastewater facility or water facility as a public
service, which is regulated by the public service commission as a
public utility under chapter twenty-four of this code or which is
required to file its tariff with the public service commission;
(t)(u) "State Development Office" means the West Virginia
Development Office established under article two, chapter five-b of
this code or any successor to all or any substantial part of its
powers and duties;
(u)(v) "State infrastructure agency" means the Division of Health, Division of Environmental Protection, Housing Development
Fund, Public Service Commission, State Development Office, Water
Development Authority, Economic Development Authority and any other
state agency, division, body, authority, commission,
instrumentality or entity which now or in the future receives
applications for the funding of, and provides funding or technical
assistance to, the planning, acquisition, construction or
improvement of a project;
(v)(w) "Wastewater facility" means all facilities, land and
equipment used for or in connection with treating, neutralizing,
disposing of, stabilizing, cooling, segregating or holding
wastewater, including, without limitation, facilities for the
treatment and disposal of sewage, industrial wastes or other
wastes, wastewater, and the residue thereof; facilities for the
temporary or permanent impoundment of wastewater, both surface and
underground; and sanitary sewers or other collection systems,
whether on the surface or underground, designed to transport
wastewater together with the equipment and furnishings therefor or
thereof and their appurtenances and systems, whether on the surface
or underground including force mains and pumping facilities
therefor;
(w)(x) "Water Development Authority" means the West Virginia
Water Development Authority continued pursuant to the provisions of
article one, chapter twenty-two-c of this code or any successor to all or any substantial part of its powers and duties; and
(x)(y) "Water facility" means all facilities, land and
equipment used for or in connection with the collection and/or
storage of water, both surface and underground, transportation of
water, storage of water, treatment of water and distribution of
water all for the purpose of providing potable, sanitary water
suitable for human consumption and use.
§31-15A-15. Projects not to be considered public improvements;
engineering services; competitive bid requirements.
(a) No project or infrastructure project acquired,
constructed, maintained or financed, in whole or in part, by the
Water Development Authority shall be considered to be a "public
improvement" within the meaning of the provisions of article five-
a, chapter twenty-one of this code as a result of the financing.
(b) The state and its subdivisions shall procure engineering
services after any project study for every sewer and/or water
infrastructure project funded pursuant to this article in
accordance with chapter five-g of this code and section fifteen-a
of this article.
(b)(c) The state and its subdivisions shall, except as
provided in subsection (c)(d) of this section, solicit competitive
bids and require the payment of prevailing wage rates as provided
in article five-a, chapter twenty-one of this code for every
project or infrastructure project funded pursuant to this article exceeding $25,000 in total cost. Following the solicitation of the
bids, the construction contract shall be awarded to the lowest
qualified responsible bidder, who shall furnish a sufficient
performance and payment bond: Provided, That the state and its
subdivisions may reject all bids and solicit new bids on the
project.
(c)(d) This section does not:
(1) Apply to work performed on construction or repair projects
not exceeding a total cost of $50,000 by regular full-time
employees of the state or its subdivisions: Provided, That no more
than $50,000 shall be expended on an individual project in a single
location in a twelve-month period;
(2) Prevent students enrolled in vocational educational
schools from being used in the construction or repair projects when
such use is a part of the students' training program;
(3) Apply to emergency repairs to building components and
systems: Provided, That the term "emergency repairs" means repairs
that, if not made immediately, will seriously impair the use of the
building components and systems or cause danger to those persons
using the building components and systems; or
(4) Apply to any situation where the state or a subdivision of
the state comes to an agreement with volunteers, or a volunteer
group, by which the governmental body will provide construction or
repair materials, architectural, engineering, technical or any other professional services and the volunteers will provide the
necessary labor without charge to, or liability upon, the
governmental body: Provided, That the total cost of the
construction or repair projects does not exceed $50,000.
(d)(e) The provisions of subsection (b)(c) of this section do
not apply to privately owned projects or infrastructure projects
constructed on lands not owned by the state or a subdivision of the
state.
§31-15A-15a. Procurement of engineering services for projects or
infrastructure projects.
(a) The state or its subdivisions may not select a person or
firm to perform engineering services for a project or
infrastructure project funded pursuant to this article unless the
Infrastructure and Jobs Development Council has qualified such
person or firm in accordance with this section.
(b) The council shall qualify persons or firms to perform
engineering services for projects or infrastructure projects in
accordance with the following:
(1) The council shall annually establish criteria for the
procurement of engineering services for projects and infrastructure
projects and shall set forth therein the qualifications required
for persons or firms to provide engineering services to the state
or its subdivisions for projects and infrastructure projects.
(2) The council shall annually advertise for letters of interest to be submitted by persons or firms interested in
providing engineering services to the state or its subdivisions for
projects and infrastructure projects. The council shall request
that each person or 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
persons or firms. The council shall select persons or firms that
meet the qualifications criteria established in accordance with
this subsection. A firm selected by the council shall be qualified
to provide engineering services to the state or its subdivisions
for projects and infrastructure projects
.
(4) The council may seek the assistance and expertise of other
state agencies when qualifying persons or firms in accordance with
this subsection.
(5) The council may elect not to qualify a person or firm
previously qualified to perform engineering services for projects
or infrastructure projects if such person or firm no longer meets the qualifications criteria established in accordance with this
subsection.
(c) Prior to entering into a contract with a person or firm
qualified to perform engineering services in accordance with this
article, the state or its political subdivisions shall notify the
council of the proposed contract. The council shall review the
proposed contract and shall, at the discretion of the council,
assist the state or subdivision in scope of service or price
negotiations.
(d) Notwithstanding any provision of this code to the
contrary, the state or its subdivisions may not award a contract
for engineering services for sewer
and/or water infrastructure
project funded pursuant to this article unless the applicable
technical review committee has approved of the substance of the
contract including, but not limited to, the scope and price of the
contract.
(e) The regional councils, as defined in section two, article
twenty-five, chapter eight of this code, shall administer and have
control over local sewer and/or water infrastructure projects in
their respective regions that are funded pursuant to this article
to ensure cost-effective and timely completion.
(f) 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.
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(NOTE: The purpose of this bill is to require that
engineering firms receiving contracts for projects funded by the
West Virginia Infrastructure and Jobs Development Council (IJDC) be
qualified in accordance with the procedures set forth in §31-15A-
15a, and that any contract entered into with such firm be reviewed
and approved by the IJDC. The bill further provides that prior to
entering into a contract for engineering services, the state or its
political subdivisions must notify the IJDC of the proposed
contract. Once notified, IJDC must review the proposed contract
and may, at their discretion, assist in scope of service or price
negotiations. Under this bill, no contract for engineering
services funded by the IJDC may be awarded until IJDC has approved
the substance of the contract including, but not limited to, scope
and price.
§31-15A-15a is new; therefore, strike-throughs and
underscoring have been omitted.
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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