H. B. 2592
(By Delegates Beane, Spencer, Cann and Michael)
[Introduced
February 22, 2005
; referred to the
Committee on Government Organization then Finance.]
A BILL to amend and reenact §5-22A-2, §5-22A-3, §5-22A-4, §5-22A-5,
§5-22A-6, §5-22A-7, §5-22A-8, §5-22A-10, §5-22A-11 and
§5-22A-12 of the Code of West Virginia, 1931, as amended; and
to amend said code by adding thereto two new sections,
designated §5-22A-9a and §5-22A-9b, all relating to the
design-build procurement act generally, defining certain
terms, establishing a system for issuing invitations for
qualifications, providing for reimbursement of expenses of
members of design-build board, modifying the duties and
responsibilities of the design-build board, requiring that the
most qualified design-builder be selected, adding additional
criteria for rules, requiring that the design-builder assign
responsibility to duly licensed design professional,
prohibiting the performance criteria developer from being an
employee of an agency, establishing a two-step process for selecting a design-builder, requiring agency publication of
qualifications, preparation of invitations for proposals,
requirements for professional liability insurance, providing
a process for submitting proposals and providing that the
design-build board shall continue to exist until two thousand
nine.
Be it enacted by the Legislature of West Virginia:
That §5-22A-2, §5-22A-3, §5-22A-4, §5-22A-5, §5-22A-6,
§5-22A-7, §5-22A-8, §5-22A-10, §5-22A-11 and §5-22A-12 of the Code
of West Virginia, 1931, as amended, be amended and reenacted; and
to amend said code by adding thereto two new sections, designated
§5-22A-9a and §5-22A-9b, all to read as follows:
ARTICLE 22A. DESIGN-BUILD PROCUREMENT ACT.
§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 that have the authority to issue
and sign a purchase order for construction or lease purchase of the
project.
"Board" means the review design-build 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 satisfies the requirements of the West Virginia
Design-build Procurement Act.
"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.
"Invitation for proposals" means the document or publication
whereby an agency solicits proposals for a design-build project.
"Invitation for qualifications" means the document or
publication whereby an agency solicits a statement of
qualifications from potential design-builders in order to select
three to five design-builders to respond to the agency's request
for proposal.
"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 and serve as
their technical advisor.
"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.
"Qualified design-builder" means one of the three to five
design-builders selected by the agency to respond to the request
for proposals.
"Request for proposals" means the document or publication
whereby an agency solicits proposals for a design-build contract.
"Responsive proposal" means a proposal that scores a minimum
of seventy out of a hundred in the qualitative evaluation.
"Statement of qualifications" means descriptive information or
data submitted by a design-builder indicating its ability to
satisfy the requirements set forth in the invitation for
qualifications.
"Stipend" means an amount of money allocated to compensate the
three to five qualified design-builders responding to the request
for proposals, which are not awarded a 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.
"Technical review committee" means the group of people, with
education and experience in the design, construction, operation,
administration, and finance requirements of the project, and users
of the project, selected by the agency to review, evaluate and
score the responses to the invitation for qualifications, the
statement of qualifications and the requests for proposals.
"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 invitations for qualifications or requests invitations 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 The design-build board is confined to, and is 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. However, members are entitled to reimbursement or travel and other
necessary expenses actually incurred while engaged in attending
board meetings, in accordance with rules proposed and adopted
pursuant to section eleven, article three, chapter twelve of this
code and any existing travel management rules currently in force
with and applicable to the Department of Administration. 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 the vacancy shall 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 chairperson 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 or the chairperson.
(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.
The board shall propose rules for legislative approval, in
accordance with the provisions of article three, chapter
twenty-nine-a of this code, to carry out the purposes of this
article.
§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.
(a) Monitoring of agencies' design-build activity. -
Upon receipt of information that an agency is planning to
pursue the design-build method of project delivery, the board, with
the administrative support of the Secretary of the Department of
Administration shall notify that agency of the requirements of this
act, and that it is a violation of state law if these requirements
are not followed. The board shall notify the Secretary of the
Department of Administration of any agency knowingly proceeding
without meeting the requirements of this article. Any agency
pursuing a design-build project without approval of the board is in
violation of this article and shall be reported by the Secretary of
the Department of Administration to the State Attorney General for
appropriate action.
(b) Approval of project. -
Prior to an agency issuing an invitation for qualifications
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 conditions:
(1) The agency has the appropriate legal authority to enter
into a design and construction contract;
(2) The agency requires a project design and construction time
line that is faster than the traditional design-bid-build process
would allow;
(3) The project requires close coordination of design and
construction expertise or an extreme amount of coordination;
(4) The agency requires early cost commitments;
(5) The agency has the authority or approval, from an agency
with the authority to enter into a design-build contract, and the
agency shall provide a written plan for funding the project
including, but not limited to, the funding necessary to pay for
design services and construction costs; and
(6) 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) Monitoring of project progress. -
Once a project is approved under subsection (b) of this
section, the agency must 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. If approval is
withdrawn by the board, at any time prior to entering into a
contract, the agency may not proceed with the project as a
design-build project until compliance with the requirements set
forth in the board's approval and the requirements for this article
are satisfied, as determined by the board.
(d) Approval of project process. -
Prior to an agency executing a design-build contract for a
public project, the board shall review the proposals, after the
qualitative and cost proposals are scored. The board's review
shall be limited to the request for proposal process, comments from
the participants, and satisfaction of any requirements of approval
issued by the board under the provisions of subsection (b) of this
section. The board shall then approve or reject the agency's
request to execute a design-build contract. In the event the
agency receives less than three proposals, the board shall
determine whether the agency must start the invitations for
qualifications process over or whether the agency can proceed to
contract.
§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 application of approval of a design-build project;
(3) The procedures for selecting the most qualified
design-builders prior to the release of the request for proposals;
(2) (4) The procedures for the preparation and contents of
requests for proposals;
(3) (5) The procedures for preparing and submitting proposals;
(4) (6) The procedures for evaluating proposals;
(5) (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;
(6) (8) The procedures for awarding and executing design-build contracts;
(7) (9) The procedures for awarding design-build contracts in
the event of public emergencies as defined in the applicable
statutes; and
(8) (10) 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 shall assign or sublet the
responsibility for professional design services to a firm design
professional duly licensed and registered to provide professional
design services in this state. The firm design professional must
carry, at all times, professional design liability insurance in an
appropriate amount as designated by the agency. This design
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 invitation 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 shall not be an employee of the agency and
shall 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 and shall not be an employee of the
agency. Notwithstanding any provision of law to the contrary, the
agency may use its own employees to determine whether the agency
should seek to construct a project using the design-build method of
construction.
§5-22A-9a. Selection of most qualified design-builders.
The solicitation of design-builders shall be a two-step
process. The first step is the invitation for proposals. In order
to be eligible to respond to an invitation for proposal, all
design-builders must first respond to the invitation for
qualifications developed by the agency and performance criteria
developer with a statement of design-build qualifications.
The agency shall review the statement of design-build
qualifications and select the three to five most qualified
design-builders to participate in the invitation for proposals. If
less than three design-builders are determined to be qualified, the
agency must seek approval of the design-build board to continue
with the selection process.
The results of the selection shall be made available to the
design-builders within ten working days of the selection.
§5-22A-9b. Invitation for qualifications.
The agency shall publish in accordance with the West Virginia
procurement laws an invitation for qualifications that includes,
but is not limited to the following:
(a) A descriptive narrative of the type, scope and size of the
proposed work;
(b) The evaluation criteria for selecting the three to five
qualified design-builders; and
(c) Request for descriptive information or data supporting a
design-builder's claim to be able to perform the work including,
but not limited to:
(1) Licensing, insurance and evidence of good standing with
the State of West Virginia and the agency;
(2) Bonding ability;
(3) Experience and technical expertise;
(4) History of past performance;
(5) Qualifications, experience and licenses of key management
and professional staff including contractor, architects and
engineers;
(6) Staffing capabilities;
(7) Current workload;
(8) Quality control and quality assurance policies and
programs;and
(9) Safety record, including employee modification rating (EMR) for the past three years.
§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 The agency shall prepare an invitation
for proposals for the qualified design-builders which 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; and
(8) Design-builder qualifications; and
(9) (8) Requirements for performance bonds, payment bonds, and
insurance, 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 professional liability
insurance, and workers' compensation coverage.
The request for proposals may include any other information
that the agency, at its discretion, chooses to supply, The agency
shall provide, as applicable, additional information to the
design-build teams, including, but not limited to, surveys, soils
reports, drawings or models of information regarding existing
structures, environmental studies, photographs or references to
public records, or other information determined by the agency to be
pertinent.
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 submitted in two separate, clearly
identified, sealed packages. The first package shall contain the qualitative information which shall be evaluated, scored, and
publicly announced prior to opening the second package containing
the cost information. If the qualitative package and cost package
are not submitted in two clearly identified packages, the
submission shall be disqualified.
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. A stipend shall be paid to
qualified design-builders not ultimately selected. The stipend
shall be equal to two percent of the awarded contract amount or
thirty thousand dollars, whichever is less. This amount shall be
equally distributed among the qualified design builders that are
not awarded a contract.
§5-22A-12. Acceptance of design-build proposal.
Proposals must be submitted to the purchasing division or
agency, as applicable 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 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, design-build board determines
that there was adequate competition for the contract.
After receiving and evaluating all proposals submitted based
upon the criteria and procedures set forward forth in the request
for proposals, the purchasing division or agency shall submit to
the board the proposals, so that the board may satisfy itself that
any requirements for approval have been satisfied, prior to the
agency accepting any proposal. The itemized scoring of the
qualitative proposals shall be submitted to the board and be
available for public review prior to the award of a contract. If
the process is approved by the board, the 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.
NOTE: The purpose of this bill is to enhance the operation of
the design-build board by providing additional oversight, requiring
design builders to be prequalified, making the process more public,
and providing independent professional oversight. Among some of
the specific provisions of the bill are the following: (1) To
create a two-step process for approval, i.e., a "prequalification"
of the design-builder and scoring of the proposals made; (2) to
provide that the criteria developer should not be an employee of
the agency responsible for a project; (3) to provide that the
design-build board has more authority, including the ability to
terminate a project previously approved if it does not comply with
the rules of acceptance of the project; and, (4) to require
agencies to regularly report to the design-build board in order to
provide feedback as a way to insure quality and timeliness of a
project, and to, additionally, insure that a project is in
compliance with the terms of approval.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§5-22A-9a and §5-22A-9b are new; therefore, strike-throughs
and underscoring have been omitted.
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