Bill Text: VA SB249 | 2024 | Regular Session | Comm Sub
Bill Title: Virginia Public Procurement Act; construction management and design-build contracting.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-02-12 - Incorporated by Finance and Appropriations [SB249 Detail]
Download: Virginia-2024-SB249-Comm_Sub.html
Be it enacted by the General Assembly of Virginia:
1. That §§2.2-4379, 2.2-4380, 2.2-4381, and 2.2-4383 of the Code of Virginia are amended and reenacted as follows:
§2.2-4379. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Complex project" means a construction project that includes one or more of the following significant components: difficult site location, unique equipment, specialized building systems, multifaceted program, accelerated schedule, historic designation, or intricate phasing or some other aspect that makes competitive sealed bidding not practical.
"Construction management contract" means a contract in which a party is retained by the owner to coordinate and administer contracts for construction services for the benefit of the owner and may also include, if provided in the contract, the furnishing of construction services to the owner.
"Covered institution" means a public institution of higher education operating (i) subject to a management agreement set forth in Article 4 (§23.1-1004 et seq.) of Chapter 10 of Title 23.1, (ii) under a memorandum of understanding pursuant to §23.1-1003, or (iii) under the pilot program authorized in the appropriation act.
"Department" means the Department of General Services.
"Design-build contract" means a contract between a public body and another party in which the party contracting with the public body agrees to both design and build the structure, or other item specified in the contract.
"Division" means the Division of Engineering and Buildings of the Department of General Services as established by §2.2-1129.
"Public body" means the same as that term is defined in §2.2-4301.
"State public body" means any authority, board, department, instrumentality, agency, or other unit of state government. "State public body" does not include any covered institution; any county, city, or town; or any local or regional governmental authority.
§2.2-4380. Construction management or design-build contracts for state public bodies authorized.
A. Any state public body may enter into a contract for construction on a fixed price or not-to-exceed price construction management or design-build basis, provided that (i) the Department has approved the use of construction management or design-build contracts and (ii) such public body complies with the requirements of this article and the procedures adopted by the Secretary of Administration for using construction management or design-build contracts.
B. Procedures adopted by a state public body pursuant to this article shall include the following requirements:
1. A written determination is made in advance by the state public body that competitive sealed bidding is not practicable or fiscally advantageous, and such writing shall document the basis for the determination to use construction management or design-build. The determination shall be included in the Request for Qualifications and maintained in the procurement file;
2. Prior to making a determination as to the use of construction management or design-build for a specific construction project, a state public body shall have in its employ or under contract a licensed architect or engineer with professional competence appropriate to the project who shall (i) advise the public body regarding the use of construction management or design-build for that project and (ii) assist the public body with the preparation of the Request for Proposal and the evaluation of such proposals;
3. Public notice of the Request for Qualifications is posted on the Department's central electronic procurement website, known as eVA, at least 30 days prior to the date set for receipt of qualification proposals;
4. For construction management contracts, the contract is entered into no later than the completion of the schematic phase of design, unless prohibited by authorization of funding restrictions;
5. Prior construction management or design-build experience or
previous experience with the Department's Bureau of Capital Outlay
Management Division shall not be required considered
as a prerequisite or factor considered for prequalification or
award of a contract. However, in the selection of a contractor, a state public
body may consider the experience of each contractor on comparable projects;
6. Construction management contracts shall require that (i) no
more than 10 percent of the construction work, as measured by the cost of the
work, be performed by the construction manager with its own forces and (ii) the
remaining 90 percent of the construction work, as measured by the cost of the
work, be performed by subcontractors of the construction manager, which the
construction manager shall procure by publicly advertised, competitive sealed
bidding to the maximum extent practicable; and
7. The procedures allow for a two-step competitive negotiation process; and
8. The procedures allow the state public body to post on the Department's central electronic procurement website known as eVA when and where the general contractor plans to advertise bid packages for subcontracting opportunities when appropriate.
C. The Department shall evaluate the proposed procurement method selected by the state public body and make its recommendation as to whether the use of the construction management or design-build procurement method is appropriate for the specific project. In its review, the Department shall also consider:
1. The written determination of the state public body;
2. The compliance by the state public body with subdivisions B 1, 2, and 7;
3. The project cost, expected timeline, and use;
4. Whether the project is a complex project; and
5. Any other criteria established by the Department to evaluate the proposed procurement method for the project.
D. The Department shall conduct its review within five working
days after receipt of the written determination and render its written
recommendation approval or denial within such five-working-day
period. The written recommendation approval or denial of the
Department shall be maintained in the procurement file.
E. If a state public body elects to proceed with the project using a construction management or design-build procurement method despite the recommendation of the Department to the contrary, such state public body shall state in writing its reasons therefor and any justification for not following the recommendation of the Department and submit same to the Department. The written statement of a state public body's decision to not follow the recommendation of the Department shall be maintained in the procurement file and posted on the Department's central electronic procurement website known as eVA.
§2.2-4381. Construction management or design-build contracts for covered institutions authorized.
A. Any covered institution may enter into a contract for construction on a fixed price or not-to-exceed price construction management or design-build basis, provided that (i) the Department approves the use of construction management or design-build or, in the case of a denial by the Department, such institution receives approval as set forth in subsection F and (ii) such institution complies with the requirements of this article and with the procedures adopted by the Secretary of Administration for using construction management or design-build contracts.
B. Covered institutions shall:
1. Develop procedures for determining the selected procurement method which, at a minimum, shall consider cost, schedule, complexity, and building use;
2. Submit such procedures, and any subsequent changes to adopted procedures, to the Department for review and comment; and
3. Submit Department-reviewed procedures to its board of visitors or governing board for adoption.
C. Procedures adopted by a board of visitors or governing board pursuant to this article shall include the following requirements:
1. A written determination is made in advance by the covered institution that competitive sealed bidding is not practicable or fiscally advantageous, and such writing shall document the basis for the determination to use construction management or design-build. The determination shall be included in the Request for Qualifications and maintained in the procurement file;
2. Prior to making a determination as to the use of construction management or design-build for a specific construction project, a covered institution shall have in its employ or under contract a licensed architect or engineer with professional competence appropriate to the project who shall (i) advise the covered institution regarding the use of construction management or design-build for that project and (ii) assist the covered institution with the preparation of the Request for Proposal and the evaluation of such proposals;
3. Public notice of the Request for Qualifications is posted on the Department's central electronic procurement website, known as eVA, at least 30 days prior to the date set for receipt of qualification proposals;
4. For construction management contracts, the contract is entered into no later than the completion of the schematic phase of design, unless prohibited by authorization of funding restrictions;
5. Prior construction management or design-build experience or
previous experience with the Department's Bureau of Capital Outlay
Management Division shall not be required considered
as a prerequisite or factor considered for prequalification or
award of a contract. However, in the selection of a contractor, a covered
institution may consider the experience of each contractor on comparable
projects;
6. Construction management contracts shall require that (i) no
more than 10 percent of the construction work, as measured by the cost of the
work, be performed by the construction manager with its own forces and (ii) the
remaining 90 percent of the construction work, as measured by the cost of the
work, be performed by subcontractors of the construction manager, which the
construction manager shall procure by publicly advertised, competitive sealed
bidding to the maximum extent practicable; and
7. The procedures allow for a two-step competitive negotiation process; and
8. The procedures allow the covered institution to post on the Department's central electronic procurement website known as eVA when and where the general contractor plans to advertise bid packages for subcontracting opportunities when appropriate.
D. The Department shall evaluate the proposed procurement
method selected by a covered institution and make offer its
recommendation approval or denial as to whether the use of the
construction management or design-build procurement method is appropriate for
the specific project. In its review, the Department shall also consider:
1. The written determination of the covered institution;
2. The compliance by the covered institution with subdivisions C 1, 2, and 7;
3. The project cost, expected timeline, and use;
4. Whether the project is a complex project; and
5. Any other criteria established by the Department to evaluate the proposed procurement method for the project.
E. The Department shall conduct its review within five working
days after receipt of the written determination and render its written
recommendation approval or denial within such five-working-day
period. The written recommendation approval or denial of the
Department shall be maintained in the procurement file.
F. If a covered institution elects to proceed with the project
using a construction management or design-build procurement method despite the
recommendation decision of the Department to the contrary, such
covered institution shall state in writing its reasons therefor and any
justification for not following the recommendation of the Department and submit
same to the Department obtain approval from the board of visitors or
governing board of such institution by a two-thirds vote of all board members.
The A written statement of a covered institution's decision to not
follow the recommendation decision of the Department, its
reasons therefor, and the vote of the board of visitors or governing board
shall be maintained in the procurement file and posted on the Department's
central electronic procurement website known as eVA.
§2.2-4383. Reporting requirements.
A. The Department shall report by December 1 of each year to
the Governor and the Chairmen of the House Committee on Appropriations, the
House Committee on General Laws, the Senate Committee on Finance and
Appropriations, and the Senate Committee on General Laws and Technology the
following information: (i) the number of projects reviewed pursuant to Articles
2 (§2.2-4380) and 3 (§2.2-4381) and (ii) for each project (a) the identity of
the state public body or covered institution and a description of each such project,
(b) the estimated cost of the project at the time of the Department's review,
(c) the recommendation decision made by the Department concerning
the proposed procurement method, and (d) if such project was a
construction management or design-build project, the qualifications that made
such project complex, and (e) the final procurement method used by the
state public body or covered institution.
B. All public bodies subject to the provisions of this chapter
shall report no later than November 1 of each year to the Director of the
Department on all completed capital projects in excess of $2 million, which
report shall include at a minimum (i) the procurement method utilized, (ii) the
project budget, (iii) the actual project cost, (iv) the expected timeline, (v)
the actual completion time, and (vi) if such project was a
construction management or design-build project, the qualifications that made
the project complex, and (vii) any post-project issues.
The Department shall consolidate received report data and submit the consolidated data to the Governor and Chairmen of the House Committee on Appropriations and the Senate Committee on Finance and Appropriations by December 1 of each year.
2. That the Department of General Services, with the assistance of staff of the House Committee on Appropriations and the Senate Committee on Finance and Appropriations, shall assess the implementation and administration of the provisions of §§2.2-4379, 2.2-4380, 2.2-4381, and 2.2-4383 of the Code of Virginia, as amended by this act, and report its findings and recommendations to the General Assembly by November 1, 2029.
