H. B. 4742
(By Mr. Speaker, Mr. Kiss, and Delegates Beane,
Mahan, Amores, Pino, Michael, Varner, Staton,
Stalnaker and Browning)
[Introduced February 23, 2006; referred to the
Committee on Government Organization then Finance.]
A BILL to amend and reenact §5-22A-1 and §5-22A-2 of the Code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto a new article, designated §17-2D-1, §17-2D-2,
§17-2D-3, §17-2D-4, §17-2D-5, §17-2D-6, §17-2D-7, §17-2D-8,
§17-2D-9 and §17-2D-10, all relating to the Highway
Design-Build Procurement Act; defining certain terms; creation
of a Design-Build Selection Committee and setting forth
duties; listing requirements for approval of design-build
projects; requiring monthly progress reports on design-build
projects; requiring annual reports; revising authority to
propose certain rules and requirements; establishing
requirements for issuing invitations for bid; certification of
prequalification of design-builder and the bidding process.
Be it enacted by the Legislature of West Virginia:
That §5-22A-1 and §5-22A-2 of the Code of West Virginia, 1931,
as amended, be amended and reenacted; and that said code be amended
by adding thereto a new article, designated §17-2D-1, §17-2D-2,
§17-2D-3, §17-2D-4, §17-2D-5, §17-2D-6, §17-2D-7, §17-2D-8, §17-2D-9 and §17-2D-10, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS;
MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
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:
Provided, That the Division of Highways shall comply with
provisions of chapter seventeen, article two-d of this code.
§5-22A-2. Definitions.
For the purpose of this article:
(1) "Agency" means all state departments, agencies,
authorities, quasi-public corporations and all political
subdivisions, including cities, counties, boards of education and
public service districts and the individual representatives of the
agency appointed to oversee or supervise the project:
(2) "Board" means the Design-Build Board established pursuant
to section four of this article to determine whether a public
project satisfies the requirements of this article;
(3) "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, in which services
within the scope of the practice of professional engineering or
architecture, as defined by the laws of the State of West Virginia,
are performed by an engineer or architect duly licensed in the
State of West Virginia and in which services within the scope of
construction contracting, as defined by the laws of the State of
West Virginia, are performed by a contractor qualified and licensed
under the applicable statutes. The design-build method of
construction may not be used for any other construction projects,
such as highway, including water or sewer projects; except as is
otherwise provided by law;
(4) "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;
(5) "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
section seven, article six of this chapter and this article;
(6) "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;
(7) "Invitation for proposals" means the document or
publication by which an agency solicits proposals for a
design-build project;
(8) "Invitation for qualifications" means the document or
publication by which 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 invitation
for proposal;
(9) "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;
(10) "Performance criteria developer" means an architect or
engineer licensed under the laws of this state and, if applicable,
the architect's or engineer's employer, company, partners, joint
venturers, affiliates or subcontractors retained by the agency to
develop performance criteria and to serve as the agency's technical
advisor;
(11) "Project" means that project described in the public
announcement;
(12) "Proposal" means an offer to enter into a design-build
contract, as further defined in this article;
(13) "Qualified design-builder" means one of the three to five
design-builders selected by the agency to respond to the invitation
for proposals;
(14) "Responsive proposal" means a proposal that scores a
minimum of seventy points out of a possible one hundred points in
the qualitative evaluation;
(15) "Statement of qualifications" means descriptive
information or other data submitted by a design-builder indicating
its ability to satisfy the requirements set forth in the invitation
for qualifications;
(16) "Substantial completion" means the stage in the progress
of the work when the work or designated portion thereof is
sufficiently complete in accordance with the design-build contract
so the agency can occupy or utilize the work for its intended use;
(17) "Technical review committee" means the group of
individuals who have education and experience in the design,
construction, operation, administration, and finance requirements
of the project and users of the project selected by the agency to
review, evaluate and score the statement of qualifications and
invitation for proposal;
(18) "Work" means the design, construction and services
required by the 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.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 2D. Highway Design-Build Procurement Act.
§17-2D-1. Short title; applicability of article.
This article shall be known and may be cited as the "West
Virginia Highway Design-Build Procurement Act."
The provisions of this article must be used to select
design-builders for authorized highway projects that are
constructed and owned, potentially owned, or ultimately owned by
the Division of Highways.
§17-2D-2. Definitions.
For the purpose of this article:
(1) "Design-build" is defined as providing responsibility
within a single contract for design, construction or alteration of
a highway, structure or related facility or appurtenance, together
with incidental approaches, in which services within the scope of
the practice of professional engineering or architecture, as
defined by the laws of the State of West Virginia, are performed by
an engineer or architect duly licensed in the State of West
Virginia and in which services within the scope of construction
contracting, as defined by the laws of the State of West Virginia,
are performed by a contractor qualified and licensed under the
applicable statues: Provided, That the structure is not a "Public
office building" as defined in section two-h, article ten-g,
chapter eighteen;
(2) "Design-build contract" means the contract between the
division and a design-builder to furnish the engineering, and
related service as required, for a given public highway project,
and to furnish the labor, materials and other construction of
services for the same public project. A design-build highway
contract may be conditional upon subsequent refinements in scope
and price, and may permit the division to make changes in the scope
of the project without invalidating the design-build contract;
(3) "Design-builder" means a firm, as defined in this article,
that proposes to design and construct a public highway project in
accordance with the provisions of this article, and which the
division has prequalified as eligible to bid on the project;
(4) "Division" means the Division of Highways;
(5) "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;
(6) "Low construction bid" means the lowest bid received on a
project which meets all the requirements identified in the
solicitation for bids;
(7) "Prequalification of contractors" means the procedures and
forms completed by contractors to predetermine and expertise for
the proposed project;
(8) "Project" means that highway project described in the
public announcement;
(9) "Proposal" means an offer to enter into a design-build
contract, as further defined in this article;
(10) "Selection committee" means a group of individuals
designated by the commissioner who are experienced in the design,
construction, operation, administration, and finance requirements
of the project;
(11) "Substantial completion" means the stage in the progress
of the work when the work or designated portion thereof is, in the
estimation of the division, sufficiently complete in accordance
with the design-build contract so the division can utilize the work
for its intended use; and
(12) "Work" means the design, 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 design-builder
to fulfill the design-builder's obligations. The work may
constitute the whole or a part of the project.
§17-2D-3. Public policy; conditions for contract.
Recognizing that the design-bid-build method provides a viable
delivery method for public highway projects, it is the public
policy of this state to permit the division to enter into
design-build highway contracts for public highway projects.
The division may not enter into a design-build contract for a
public highway project unless:
(1) The division promulgates and publishes legislative rules
pursuant to this article, and consistent with this article for the solicitation and award of design-build highway contracts; and
adheres to this article and those rules; and
(2) The division determines that it is in the best interest of
the public to enter into a design-build contract to complete the
public highway project or projects and adheres to this article and
the rules.
§17-2D-4. Design-Build Selection Committee and members and
meetings.
(a) The design-build selection committee is created within the
division and shall consist of the commissioner, the deputy
commissioner, the state highway engineer, and at least two other
licensed professional engineers within the division who are
designated by the commissioner.
(b) The selection committee shall meet at least four times
each calendar year, or more often as determined by the
commissioner, to determine the feasibility of any potential
projects.
§17-2D-5. Duties of the selection committee to approve projects
and to monitor projects.
Upon determination by the commissioner that the division
desires to pursue the design-build method of project delivery, and
prior to issuing an invitation for bid on a project, the selection
committee shall determine that the project is in accordance with
all of the following:
(1) The project design and construction will be completed
earlier than would be the case using the traditional design-bid-build process;
(2) The project requires close coordination of design and
construction expertise;
(3) The division requires early cost commitments;
(4) The division has necessary funding to pay for design
services and construction costs; and
(5) Other documentation as determined appropriate by the
technical committee for their consideration and approval.
Upon project approval, the design-builder must provide to the
design-build selection committee with monthly reports detailing the
progress of the approved project. The reports shall continue until
the start of construction to ensure compliance with any
requirements established by the technical committee. If any
requirement is not satisfied, the commissioner may withdraw from
the project at any time prior to the start of construction.
§17-2D-6. Design-build rules.
The division, at a minimum, shall include in the proposed
legislative rule:
(1) Detailed procedures used by the division to prequalify
contractors for design-build projects;
(2) The procedures for the preparation and contents of
invitations for bids;
(3) The procedures for preparing and submitting bids;
(4) The procedures for evaluating bids;
(5) The procedures for negotiation between the division and
those submitting bids prior to the acceptance of a bid, if any such negotiations are contemplated;
(6) The procedures for awarding and executing design-build
highway contracts;
(7) The procedures for awarding design-build highway contracts
in the event of public emergencies as defined in the applicable
statutes; and
(8) The procedures for acting on formal protects relating to
the solicitation or award of design-build highway contracts.
§17-2D-7. Qualification of design-builders.
If the commissioner determines that project may be suitable
for design and construction utilizing the design-build methods
provided in this article, the division shall publish and invitation
for bids by interested design-builders which provides, at a
minimum:
(1) A descriptive narrative of the type, scope and size of the
proposed work; and
(2) Certification that the design-builders is prequalified in
accordance with the division's procedures to bid on the proposed
project.
§17-2D-8. Invitation for bids.
(a) The division shall prepare an invitation for bids for
qualified design-builders, which must provide at a minimum:
(1) The procedures to be followed for submitting bids and the
procedures for making awards, including a reference to the
requirements of this article, the legislative rules promulgated
pursuant to this article and any specific requirements of the division;
(2) The proposed terms and conditions fo the design-build
contract;
(3) The description of the drawings, specifications or other
information to be submitted with the bid, with guidance as to the
form and level of completeness of the drawings, specifications or
submittals that will be acceptable;
(4) A proposed time schedule commencement and completion of
the design-build contract;
(5) Budget limits for the design-build contract, if any;
(6) Requirements or restrictions for the subletting of
specific portions of the design-build contract, if any; and
(7) Requirements for performance bonds, payment bonds,
insurance, professional liability insurance and workers'
compensation coverage:
(b) The division shall make available to the qualified
design-builders, approved subcontractors, suppliers and sureties,
as applicable, additional information to the design-builder,
including, but not limited to, surveys, soils reports, drawings or
information regarding existing structures, environmental studies,
photographs or references to public records, or other pertinent
information.
§17-2D-9. Bids.
(a) Bids shall be submitted in clearly identified, sealed
package containing both a technical submission and a cost
submission. Bids may not be opened until expiration of the time established for making bids as set forth in the invitation for
bids.
(b) The design-builder shall furnish a bid bond not to exceed
five percent of the maximum cost of the design-build contract. In
the event the bid is accepted and the design-builder fails to
execute the design-build contract, the bid bond will be forfeited.
(c) To the extent required in the invitation for bids, the
design-builder shall identify each firm to whom the design-builder
shall identify each firm responsible for the design and primary
construction and their affiliation to the design-builder.
(d) The design-builder shall specify in the bid the cost of
the design-build contract that will not be exceeded if the bid is
accepted without change. After award of the bid, the maximum cost
of the bid shall be converted to fixed prices by negotiated
agreement between the division and the design-builder.
(e) Prior to the award of the design-build contract, all
drawings, specifications and other information submitted in the bid
shall remain the property of the design-builder submitting the bid.
Additionally, prior to the award of the design-build contract, the
division shall maintain secrecy and confidentiality of all
information contained in the bid. Once a bid is accepted, the
disclosure and the information in the bid 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.
(f) Bids may not be amended during the review process.
§17-2D-10. Acceptance of design-build bid.
The design-builder shall submit the bid to the division
as required in the invitation for bids. After receiving the bids,
the selection committee shall award the project to the qualified
design-builder with the low bid. The selection committee shall
ascertain that the submissions comply with the requirements of this
article. The division shall open the bids and accept or reject the
bid based in accordance with legislative rules promulgated pursuant
to this article.
NOTE: The purpose of this bill is to allow the Division of
Highways to implement a program for highway and bridge construction
by using the design-build process.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Chapter 17, Article 2D is new; therefore, strike-throughs and
underscoring have been omitted.
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