ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 666
(By Senator Bowman)
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[Originating in the Committee on Government Organization;
reported February 25, 1999.]
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A BILL to amend chapter five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article twenty-two-a, all
relating to the West Virginia design-build procurement act;
short title; applications; definitions; public policy;
conditions for contract; design-build board and members;
appointments; meetings; authority to promulgate rules;
duties of the board; design-build regulations; design- builder qualifications; rights and powers; development of
performance criteria; scope of project; solicitation of
proposals; proposals; acceptance of design-build proposal; construction and final certification; withdrawal of
proposals; termination provision; and severability.
Adopted
Rejected
Be it enacted by the Legislature of West Virginia:
That chapter five of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended by adding thereto
a new article, designated article twenty-two-a, to read as
follows:
ARTICLE 22A. DESIGN-BUILD PROCUREMENT ACT.
§5-22A-1. Short title; applicability of article.
This article shall be known and may be cited as the "West
Virginia Design-Build Procurement Act."
The provisions of this article must be used to select
design-builders for authorized projects that are constructed and
owned, potentially owned, or ultimately owned by any agency.
§5-22A-2. Definitions.
For the purpose of this article:
"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.
"Board" means the review board established pursuant to
section four of this article to determine whether a public
project can be constructed under the design-build method of
construction.
"Design-build" 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, where 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
registered in the state of West Virginia and where 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. The
design-build method of construction may not be used for any other
construction projects, such as highway, water or sewer projects.
"Design-build contract" means the contract between an agency
and a design-builder 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. A design-build 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 design-build contract. "Design-builder" means the entity, whether natural person,
partnership, joint venture, corporation, professional
corporation, business association, or other legal entity, that
proposes to design and construct any public project governed by
the procedures of article six, section seven of this chapter and
this article.
"Firm" means any individual, firm, partnership, corporation,
limited liability company, limited liability partnership,
association, joint venture, or other legal entity permitted by
law to practice engineering, architecture or construction
contracting in the state of West Virginia.
"Performance criteria" means the requirements for the public
project, including as appropriate, aesthetics, capacity,
durability, 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 design-builder to make a proposal.
"Performance criteria developer" means an architect or
engineer duly registered in accordance with 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.
"Project" means that project described in the public
announcement.
"Proposal" means an offer to enter into a design-build
contract, as further defined in this article.
"Request for proposals" means the document or publication
whereby an agency solicits proposals for a design-build contract.
"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 design-build
contract so the agency can occupy or utilize the work for its
intended use.
"Work" means the construction and services required by the
design-build contract, whether completed or partially completed,
and includes all other labor, materials, equipment and services
provided or to be provided by the design-builder to fulfill the
design-builder's obligations. The work may constitute the whole
or a part of the project.
§5-22A-3. Public policy; conditions for contract.
Recognizing that the design-bid-build method provides a
viable delivery method for public projects, it is also the public
policy of this state to permit an agency to enter into design- build contracts for public projects.
An agency may not enter into a design-build contract for
public project unless:
(1) The department of administration or appropriate
governing body, prior to issuing requests for proposals,
promulgates and publishes rules consistent with this article for
the solicitation and award of design-build contracts and shall
adhere to this article and those rules;
(2) The agency, for each public project or projects procured
pursuant to this article, must determine that it is in the best
interest of the public to enter into a design-build contract to
complete the public project or projects; and
(3) The board established pursuant to section four of this
article determines that the public project is appropriate as a
design-build project utilizing the mandatory criteria as provided
for in section five of this article.
§5-22A-4. Design-build board and members; appointments; meetings; authority to promulgate rules.
(a) There is hereby created the design-build board and shall
be composed of the following nine members who are to be appointed
by the governor with the advice and consent of the Senate: Two
contractors licensed in the state of West Virginia; one architect
licensed in the state of West Virginia and one professional
engineer licensed in the state of West Virginia; the secretary of
the department of administration, ex officio; one representative
from labor and three other members of the public at large.
Members of the board are not entitled to compensation for
services performed as members. Each member of the board must
take and subscribe to the oath or affirmation required pursuant
to section five, article IV of the Constitution of West Virginia.
(b) Within thirty days of the effective date of this
section, the governor shall make the initial appointments to the
design-build board. Of the initial appointments to the board,
four will be for a term ending two years after the effective date
of this section and four for a term ending three years after the
effective date of this section. Thereafter, terms of office are
for three years, each term ending on the same day of the same month of the year as did the term which it succeeds. Each member
will hold office from the date of his or her appointment or until
his or her successor qualifies for office. When a vacancy occurs
as a result of death, resignation or removal in the membership of
the board, it must be filled by an appointment within thirty days
of the vacancy for the unexpired portion of the term in the same
manner as original appointments.
(c) The board must meet within thirty days of the initial
appointments to the board at a time and place to be determined by
the governor, who must designate a member to preside at that
meeting until a chairman is elected. At its first meeting, the
board shall elect a chairman and such other officers as are
necessary. The board shall within ninety days after its first
meeting adopt rules for its procedures. Five members of the
board constitute a quorum. Except as may otherwise be provided
in this section, a majority of the total membership is necessary
to act at all times. Meetings of the board shall be upon the
call of the secretary of the department of administration.
(d) The board shall promulgate rules to carry out the
purposes of this article. Any rules adopted by the board prior to the first day of October, one thousand nine hundred ninety- nine are exempt from the provisions of article three, chapter
twenty-nine-a of this code: Provided, That the board shall file
a copy of any rule so exempted from the provisions of chapter
twenty-nine-a of this code with the legislative rule-making
review committee created pursuant to section eleven, article
three of said chapter prior to the thirtieth day of November, one
thousand nine hundred ninety-nine.
§5-22A-5. Duties of board.
Prior to allowing an agency to enter into design-build
contracts for public projects, the board must determine that the
public project is appropriate as a design-build project in
accordance with all of the following:
(1) The agency requires a project design and construction
time line that is faster than the traditional design-bid-build
process would allow;
(2) The project requires close coordination of design and
construction expertise or an extreme amount of coordination; and
(3) The agency requires early cost commitments.
§5-22A-6. Design-build regulations.
The department of administration shall adopt rules
consistent with this article for the award of design-build
contracts. Any rules so adopted by the department of
administration prior to the first day of October, one thousand
nine hundred ninety-nine are exempt from the provisions of
article three, chapter twenty-nine-a of this code: Provided,
That the department of administration shall file a copy of any
rule so exempted from the provisions of chapter twenty -nine-a of
this code with the legislative rule-making review committee
created pursuant to section eleven, article three of said chapter
prior to the thirtieth day of November, one thousand nine hundred
ninety-nine. The rules must consist of, but not be limited to:
(1) The procedures to select or designate a performance
criteria developer and prepare performance criteria;
(2) The procedures for the preparation and contents of
requests for proposals;
(3) The procedures for preparing and submitting proposals;
(4) The procedures for evaluating proposals;
(5) The procedures for negotiations between the agency and
those submitting proposals prior to the acceptance of a proposal, if any such negotiations are contemplated.
(6) The procedures for awarding and executing design-build
contracts.
(7) The procedures for awarding design-build contracts in
the event of public emergencies as defined in the applicable
statutes; and
(8) The procedures for acting on formal protests relating to
the solicitation or award of design-build contracts.
§ 5-22A-7. Design-builder qualifications; rights and powers.
Each design-builder must be duly licensed and registered to
do business in this state and be a licensed architect or engineer
or a general contractor.
Each design-builder must have the following rights and
powers:
(1) The design-builder must assign or sublet the
responsibility for professional design services to a firm duly
licensed and registered to provide professional design services
in this state. The firm must carry, at all times, professional
design liability insurance in an appropriate amount as designated
by the agency. This professional may be a full or part-time employee of the design-builder.
(2) The design-builder must assign or sublet responsibility
for construction or other services requiring a contractor's
license to persons or entities duly registered, licensed or
otherwise qualified to provide those services in this state.
(3) The design-builder may contract with the agency to
provide professional services or construction services that the
design-builder is not itself licensed, registered or otherwise
authorized to provide so long as those services are assigned or
sublet to a firm that is a member of the design-build team and is
registered, licensed and qualified to provide those services.
§5-22A-8. Development of performance criteria.
(a) Each request for proposal must contain performance
criteria prepared by an architect or engineer duly registered in
accordance with the laws of this state, referred to as the
"performance criteria developer." If the performance criteria
developer is not an employee of the agency, then the performance
criteria developer and his or her employer, company, partners,
joint venturers, affiliates or consultants are disqualified from
submitting a proposal to enter into the design-build contract and the design-builder will not be permitted to delegate services
under the design-build contract to the performance criteria
developer or its consultants. The performance criteria developer
must be retained by the agency through final completion of the
project to monitor adherence to the performance criteria.
(b) The performance criteria developer may be an employee of
the agency, and to the extent allowed by law may delegate the
development of specific aspects of the design criteria to an
architect or engineer duly registered with this state and his or
her employer, company, partners, joint venturers, affiliates or
other consultants. If the performance criteria developer is not
an employee of the agency, the performance criteria developer
shall be selected in accordance with the requirements of article
one, chapter five-g of this code.
§5-22A-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.
§5-22A-10. Solicitation of proposals.
Proposals must be solicited from not less than three design-
builders. A request for proposal must be prepared for each
design-build contract and shall consist of, but not be limited
to:
(1) The identity of the agency which will award the design- build contract;
(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 rules
promulgated herein and any regulations pertaining to the agency;
(3) The proposed terms and conditions for the design-build
contract;
(4) The performance criteria;
(5) The description of the drawings, specifications or other
submittals 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 design-build contract;
(7) Budget limits for the design-build contract, if any;
(8) Design-builder qualifications; and
(9) Requirements for performance bonds, payment bonds, and
insurance.
The request for proposals may include any other information
that the agency, at its discretion, chooses to supply, including,
but not limited to, surveys, soils reports, drawings or models of
existing structures, environmental studies, photographs or
references to public records.
Notice of requests for proposals must be advertised as
prescribed by the procedures utilized by the purchasing division
pursuant to article three, chapter five-a of this code.
§5-22A-11. Proposals.
Proposals must be sealed and may not be opened until
expiration of the time established for making proposals as set
forth in the request for proposals. Requests for proposals must
require and be accompanied by a bid bond not to exceed five
percent of the maximum cost of the design-build contract, as
established by the proposal. In the event the proposal is
accepted and the design-builder fails to execute the design-build
contract, the bid bond will be forfeited.
To the extent required, the request for proposal must
identify each firm to whom the design-builder proposes to sublet
obligations under the design-build contract. At a minimum, each
proposal must identify each firm responsible for the design and
primary construction and their affiliation to the design-builder.
Proposals must establish a cost of the design-build 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 design-builder.
Prior to the award of the design-build contract, all
drawings, specifications and other information submitted in the
proposal shall remain the property of the design-builder
submitting the proposal. Additionally, prior to the award of the
design-build 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
design-build contract.
Proposals may not be amended during the review process.
At the discretion of the agency, a stipend may be paid to
the design-builders not ultimately selected.
§5-22A-12. Acceptance of design-build proposal.
Proposals must be submitted to the purchasing division or
agency, as applicable. 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 design- builder. The performance criteria developer must certify each
proposal in regard to compliance with the performance criteria.
No proposal or design-build contract may be accepted unless the
purchasing division or agency, as applicable, determines that
there was adequate competition for the contract.
After receiving and evaluating all proposals submitted based
upon the criteria and procedures set forward in the request for
proposals, the purchasing division or agency, as applicable, must
accept the proposal that receives the best score, as set forth in
the rules provided for in section six of this article.
Acceptance of a proposal shall be by written notice to the
design-builder which submitted the accepted proposal. At the
same time notice of acceptance is delivered, the purchasing
division or agency, as applicable, shall also inform, in writing,
the nonsuccessful design-builders that their proposals were not
accepted. When a design-builder receives notification that its
proposal was not accepted, the design-builder may, within three
days after receipt of such notification, request in writing a copy of the best score and all other factors used or considered
in the selection process.
§5-22A-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 design-build 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 such work.
The performance criteria developer shall assist the agency
in determining whether the agency shall reject work which does
not conform to the design-build 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.
§5-22A-14. Withdrawal of proposals.
At the option of the design-builder, 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.
§5-22A-15. Termination provision.
Pursuant to the provisions of article ten, chapter four of
this code, the design-build board shall continue to exist until
the first day of July, two thousand four.
§5-22A-16. 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.
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(NOTE: The purpose of this bill is to create the West
Virginia Design-Build Procurement Act and to determine the
selection of design-builders for authorized projects that are
constructed for state agencies.
Article 22A is new; therefore, strike-throughs and
)underscoring have been omitted.)
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