Introduced Version
House Bill 2576 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2576
(By Delegates Kump, Folk and Faircloth)
[Introduced February 20, 2013; referred to the
Committee on Energy, Industry and Labor, Economic
Development and Small Business then the Judiciary.]
A BILL to repeal §21-5A-1, §21-5A-2, §21-5A-3, §21-5A-5, §21-5A-6,
§21-5A-7, §21-5A-8, §21-5A-9, §21-5A-10 and §21-5A-11 of the
Code of West Virginia, 1931, as amended; to amend and reenact
§7-11B-14 of said code; to amend and reenact §7-20-22 of said
code; to amend and reenact §17-27-16 of said code; to amend
and reenact §17-28-9 of said code; and to amend and reenact
§18-5-9a of said code, all relating to repealing requirements
that prevailing wages be paid in connection with the
construction of public improvements.
Be it enacted by the Legislature of West Virginia:
That §21-5A-1, §21-5A-2, §21-5A-3, §21-5A-5, §21-5A-6,
§21-5A-7, §21-5A-8, §21-5A-9, §21-5A-10 and §21-5A-11 of the Code
of West Virginia, 1931, as amended, be repealed; that §7-11B-14 of
said code be amended and reenacted; that §7-20-22 of said code be
amended and reenacted; that §17-27-16 of said code be amended and reenacted; that §17-28-9 of said code be amended and reenacted; and
that §18-5-9a of said code be amended and reenacted, all to read as
follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 11B. WEST VIRGINIA TAX INCREMENT FINANCING ACT.
§7-11B-14. Projects financed by tax increment financing
considered to be public improvements subject to
prevailing wage, local labor preference and
competitive bid requirements.
(a) Any project acquired, constructed, or financed, in whole
or in part, by a county commission or municipality under this
article shall be is considered to be a "public improvement" within
the meaning of the provisions of articles article one-c, and five-a
chapter twenty-one of this code.
(b) The county commission or municipality shall, except as
provided in subsection (c) of this section, solicit or require
solicitation of competitive bids and require the payment of
prevailing wage rates as provided in article five-a, chapter
twenty-one of this code and compliance with article one-c of said
chapter twenty-one of this code for every project or infrastructure
project funded pursuant to this article exceeding $25,000 in total
cost.
(c) 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 county commission, municipality or other
person soliciting the bids may reject all bids and solicit new bids
on the project.
(d) 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
the officer or employee or public entity shall may 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.
(e) This section does not:
(1) Apply to work performed on construction projects not
exceeding a total cost of $50,000 by regular full-time employees of
the county commission or the municipality: Provided, That no more
than $50,000 shall may 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 construction or repair projects when
such the 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 county commission or
municipality 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.
(f) The provisions of subsection (b) of this section apply to
privately owned projects or infrastructure projects constructed on
lands not owned by the county commission, a municipality or a
government agency or instrumentality when the owner or the owner's
agent or person financing the owner's project receives money from
the tax increment financing fund for the owner's project.
ARTICLE 20. FEES AND EXPENDITURES FOR COUNTY DEVELOPMENT.
§7-20-22. Special infrastructure projects financed by service fee
considered to be public improvements subject to
prevailing wage, local labor preference and
competitive bid requirements.
(a) Any special infrastructure project acquired, constructed
or financed, in whole or in part, by service fees imposed by a county commission under section twelve of this article shall be
considered to be is a "public improvement" within the meaning of
the provisions of articles article one-c, and five-a chapter
twenty-one of this code.
(b) The county commission shall, except as provided in
subsection (c) of this section, solicit or require solicitation of
competitive bids and require the payment of prevailing wage rates
as provided in article five-a, chapter twenty-one of this code and
compliance with article one-c, of said chapter twenty-one of this
code for any special infrastructure project funded pursuant to
section twelve of this article exceeding $25,000 in total cost.
(c) 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 county commission or other person
soliciting the bids may reject all bids and solicit new bids on the
project.
(d) 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 the
officer or employee or public entity shall may 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.
(e) This section does not:
(1) Apply to work performed on construction projects not
exceeding a total cost of $50,000 by regular full-time employees of
the county commission: Provided, That no more than $50,000 shall
may 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 construction or repair projects when
such the 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 county commission comes
to an agreement with volunteers, or a volunteer group, by which the
county commission 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 county commission:
Provided, That the total cost of the construction or repair
projects does not exceed $50,000.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 27. PUBLIC-PRIVATE TRANSPORTATION FACILITIES ACT.
§17-27-16. Qualifying a transportation facility as a public
improvement subject to competitive bidding.
_____All qualifying transportation facilities authorized under this
article are public improvements and are subject to article five-a,
chapter twenty-one of this code. Article twenty-two, chapter five
of this code applies to all qualifying transportation facilities
authorized under this article. All construction, reconstruction,
repair or improvement of qualifying transportation facilities
authorized under this article shall be awarded by competitive
bidding. Competitive bids shall be solicited by the division for
each construction contract in excess of $25,000 in total cost.
Construction costs should be of sufficient size that the
performance and payment bonds are in the $10 million to $30 million
range, where possible. Competitive bids shall be solicited by the
division through publication of a Class II legal advertisement, in
compliance with the provisions of article three, chapter fifty-nine
of this code. and The publication area is the county or
municipality in which the transportation facility is to be located.
The advertisement shall also be published as a Class II
advertisement in a newspaper of general circulation published in
the city of Charleston. The advertisement shall solicit sealed
proposals for the construction of the transportation facility,
stating the time and place for the opening of bids. All bids shall be publicly opened and read aloud. Construction contracts shall be
awarded to the lowest qualified responsible bidder, who shall
furnish a sufficient performance or payment bond: Provided, That
both the division and the private entity have the right to reject
all bids and solicit new bids for the construction contract. The
provisions of article one-c, chapter twenty-one of this code apply
to the construction of all qualifying transportation facilities
approved under this article.
ARTICLE 28. WEST VIRGINIA COMMUNITY EMPOWERMENT TRANSPORTATION
ACT.
§17-28-9. Qualifying a transportation project as a public
improvement subject to competitive bidding.
_____All transportation projects authorized under this article are
public improvements and are subject to article five-a, chapter
twenty-one of this code. Article twenty-two, chapter five of this
code applies to all transportation projects authorized under this
article. All construction, reconstruction, repair or improvement
of transportation projects under this article will shall be awarded
by competitive bidding. Competitive bids are to shall be solicited
by the governmental entity sponsoring a transportation project for
each construction contract in excess of $25,000 in total cost.
Competitive bids must shall be solicited by the sponsoring
governmental entity through publication of a Class II legal advertisement, as required by article three, chapter fifty-nine of
this code. and The publication area is the county or municipality
where the transportation facility is to be located. The
advertisement must also shall be published as a Class II
advertisement in a newspaper of general circulation published in
the city of Charleston. The advertisement is to include the
solicitations of sealed proposals for the construction of the
transportation project, stating the time and place for the opening
of bids. All bids will shall be publicly opened and read aloud.
Construction contracts must shall be awarded to the lowest
qualified responsible bidder, who furnishes a sufficient
performance or payment bond. The sponsoring governmental entity
has the right to may reject all bids and solicit new bids for the
construction contract. Article one-c, chapter twenty-one of this
code applies to the construction of all transportation projects
approved under this article.
CHAPTER 18. EDUCATION.
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-9a. Energy-savings contracts.
(a) For the purposes of this section:
(1) "Energy-conservation measures" means goods or services, or
both, to reduce energy consumption operating costs of school
facilities. These include, but are not limited to, installation of
two or more of the following:
(A) Insulation of a building structure and systems within a
building;
(B) Storm windows or doors, caulking or weather stripping,
multi-glazed windows or doors, heat-absorbing or heat-reflective
glazed and coated window or door systems or other window or door
modifications that reduce energy consumption;
(C) Automatic energy control systems;
(D) Heating, ventilating or air conditioning systems,
including modifications or replacements;
(E) Replacement or modification of lighting fixtures to
increase energy efficiency;
(F) Energy recovery systems;
(G) Cogeneration systems that produce steam or another form of
energy for use by the county board of education in a building or
complex of buildings owned by the board of education; or
(H) Energy-conservation maintenance measures that provide
long-term operating cost reductions of the building's present cost
of operation.
(2) "Energy-savings contract" means a contract for the
evaluation and recommendation of energy operations conservation
measures and for implementation of one or more such measures. The
contract shall provide that payments, except obligations upon
termination of the contract before its expiration, are to be made
over time. A county board of education may supplement these payments with federal, state or local funds to reduce the annual
cost or to lower the initial amount to be financed.
(3) "Qualified provider" means a person, firm or corporation
experienced in the design, implementation and installation of
energy-conservation measures.
(b) County boards of education are hereby authorized to may
enter into performance-based contracts with qualified providers of
energy-conservation measures for the purpose of reducing energy
operating costs of school buildings.
(c) A board of education may enter into an energy-savings
contract with a qualified provider to significantly reduce energy
operating costs. Before entering into such a contract or before
the installation of equipment, modifications or remodeling to be
furnished under such a the contract, the qualified provider shall
first issue a proposal summarizing the scope of work to be
performed. Such a The proposal shall contain estimates of all
costs of installation, modifications or remodeling including the
costs of design, engineering, installation, maintenance, repairs or
debt service as well as estimates of the amounts by which energy
operating costs will be reduced. If the board finds, after
receiving the proposal, that the proposal includes more than one
energy-conservation measure designed to save energy operating
costs, the board may enter into a contract with the provider
pursuant to this section.
(d) An energy-savings contract shall include the following:
(1) A guarantee of a specific minimum amount of money that the
board will save in energy operating costs each year during the term
of the contract; and
(2) A statement of all costs of energy-conservation measures
including the costs of design, engineering, installation,
maintenance, repairs and operations.
(e) An energy-savings contract which is performance-based and
includes a guarantee of savings and a comprehensive approach of
energy-conservation measures for improving comfort is subject to
competitive bidding requirements. The requirements of article
five-a, chapter twenty-one of this code as to prevailing wage rates
shall apply to the construction and installation work performed
under such a contract.
(f) A board may enter into a "lease with an option to
purchase" contract for the purchase and installation of
energy-conservation measures if the term of the lease does not
exceed fifteen years and the lease contract includes the provisions
hereinafter contained in subsection (g) of this section and meets
federal tax requirements for tax-exempt municipal leasing or
long-term financing.
(g) An energy-savings contract may extend beyond the fiscal
year in which it first becomes effective except that such the a
contract may not exceed a fifteen-year term and shall be is void unless such the agreement provides the board the option to
terminate the agreement during each fiscal year of the contract.
The board may include in its annual budget for each fiscal year any
amounts payable under long-term energy-savings contracts during
that fiscal year.
(h) Nothing contained in This section requires or permits does
not require or permit the replacement of jobs performed by service
personnel employed by the local school board pursuant to sections
eight and eight-a, article four, chapter eighteen-a of the code, as
amended.
NOTE: The purpose of this bill is to repeal requirements that
prevailing wages be paid in connection with the construction of
public improvements.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.