Bill Text: WV SB705 | 2021 | Regular Session | Introduced


Bill Title: Creating Multi-Phase Procurement for Broadband Projects Act

Spectrum: Partisan Bill (Democrat 6-0)

Status: (Introduced - Dead) 2021-03-22 - To Government Organization [SB705 Detail]

Download: West_Virginia-2021-SB705-Introduced.html

WEST virginia legislature

2021 regular session

Introduced

Senate Bill 705

By Senator Plymale

[Introduced March 22, 2021; referred
to the Committee on Government Organization]

A BILL to amend and reenact §5-22A-5 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new article, designated §5-22B-1, §5-22B-2, §5-22B-3, §5-22B-4, §5-22B-5, §5-22B-6, and §5-22B-7; and to amend and reenact §31G-1-4 of said code, all relating to creating the Multi-Phase Procurement for Broadband Projects Act for public-private partnership broadband projects; and providing that the Design Build Board and the Broadband Enhancement Council shall administer duties of the Multi-Phase Procurement for Broadband Projects Act.

Be it enacted by the Legislature of West Virginia:


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-5. Duties of board to approve and monitor projects.

(a) Upon receipt of information that an agency wants 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 the agency that failure to comply with the requirements of this article is a violation of state law. The board shall notify the Secretary of the Department of Administration of any agency knowingly proceeding without meeting the requirements of this article.

(b) Prior to an agency issuing an invitation for qualifications for public projects, the board must shall determine that the public project is appropriate as a design-build project in accordance with all of the following:

(1) The agency has the appropriate legal authority to enter into a design-build 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 provides 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) Upon project approval under subsection (b) of this section, the agency shall 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 at any time prior to the start of construction. If the board withdraws its approval, the agency may not proceed with the project as a design-build project until the requirements set forth in the board's approval and the requirements of this article are met, as determined by the board.

(d) On or before January 1, of each year, the board shall file an annual report with the Joint Committee on Government and Finance, and a copy of the report with the Legislative Librarian, setting forth a description of the projects approved during the preceding year, including copies of monthly monitoring reports submitted to the board pursuant to subsection (c) of this section.

(e) The board together with the Broadband Enhanced Council shall administer duties of the Multi-Phase Procurement for Broadband Projects Act pursuant to §5-22B-1 et seq. of this code.


ARTICLE 22B. Multi-Phase Procurement for Broadband Projects Act.

§5-22B-1. Short Title; applicability of article.

This article shall be known and may be cited as the “Multi-Phase Procurement for Broadband Projects Act.” The provisions of this article may be used for public-private partnership broadband projects.

§5-22B-2. Definitions.


“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.

“Council” means the Broadband Enhancement Council established pursuant to chapter 31G of this code which determines whether a public project satisfies the requirements of this article.

“Multi Phase Procurement” is defined as a method of construction which consists of a conceptual phase and a detailed phase which is intended to provide flexibility in public-private partnerships for broadband infrastructure projects.

“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.

“Proposal” means an offer to enter into a multiphase procurement contract, as further defined in this article.

“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 multiphase contract so the agency can occupy or utilize the work for its intended use.

“Board” means the Design Build Board, created by §5-22A-41 of this code.

“Work” means the design, construction and services required by the multiphase contract, whether completed or partially completed, and includes all other labor, materials, equipment, and services provided or to be provided by the firm to fulfill the firm’s obligations. The work may constitute the whole or a part of the project.

§5-22B-3. Purposes.


(a) The purpose of this section is to provide an innovative legislative framework in the form of a two-phase process which enables agencies to seek ideas, develop plans, and enter into agreements authorizing firms to design, construct, improve, maintain, and/or operate broadband infrastructure projects.

(b)The legislature finds that:

(1) Offsetting capital costs for private partners makes serving areas with cost prohibitive topography and population density feasible;

(2) Flexibility in the procurement process for broadband projects will accelerate the deployment of broadband infrastructure;

(3) Open-net broadband infrastructure produces competition between service providers, reducing cost and improving service;

(4) Agencies may solicit proposals for qualifying projects;

(5) Firms may submit unsolicited proposals based on the provisions of §5-22B-6 of this code which is the conceptual phase. This preliminary phase is designed to give an innovative framework to agencies looking to develop broadband projects; and

(6) Agencies may choose based upon qualitative scoring which proposals submitted under the conceptual phase qualify for further consideration and development under the provisions of §5-22B-5 which is the detailed phase.

§5-22B-4. Qualifications to Submit Proposals.


Any firm may propose a project under the provisions of §5-22B-6 of this code.

An agency may request proposals from firms for projects under the provisions of §5-22B-6 of this code.  All proposals submitted to an agency under these provisions shall be reviewed by the design-build board to make a determination upon whether the proposal qualifies as a broadband project and conforms to the needs of the conceptual phase proposal.

§5-22B-5. Duties of Design Build Board to approve and monitor projects.


(a) Upon receipt of information that an agency wants to pursue the multiphase procurement method of project delivery, the design build board, with the administrative support of the Secretary of the Department of Administration, shall notify the agency that failure to comply with the requirements of this article is a violation of state law. The council shall notify the Secretary of the Department of Administration of any agency knowingly proceeding without meeting the requirements of this article.

(b) Prior to an agency soliciting projects, the board must determine that the project is appropriate as a multiphase procurement project in accordance with the requirements of the conceptual phase and all of the following:

(1) The agency may enter into a multiphase procurement project;

(2) The agency provides a written plan for funding the project; and

(3) 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) Upon the proposal moving to the detailed phase, the agency shall submit monthly reports detailing the progress of the approved project to the board. 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 at any time prior to the start of construction. If the board withdraws its approval, the agency may not proceed with the project as a multiphase procurement project until the requirements set forth in the board’s approval and the requirements of the detailed phase are met, as determined by the board.

§5-22B-6. Conceptual Phase.


(a) An agency may make a public announcement describing what they would like to see from a conceptual proposal submitted by a firm in the multiphase procurement process.

(b) Proposals for qualifying projects shall be submitted containing these provisions but exceptions may be made by the agency charged with accepting or declining the proposal:

(1) A description of the project, including the conceptual design and a conceptual plan for service in sufficient detail to explain the intent of the project;

(2) A description of how the conceptual design will result in a broadband network capable of delivering affordable broadband at the lowest possible cost with the potential to provide upgrades in the future to meet future demand;

(3) A topographic map of appropriate scale indicating the location of the qualifying project;

(4) A listing of major responsibilities divided between the firm and the agency;

(5) A preliminary time-schedule for the start and end date of the qualifying project;

(6) A detail of the firm’s Customer Relationship Management systems which demonstrate the firm’s ability to deliver quality customer service;

(7) Typical price plans for service demonstrating speeds and associated rates;

Provide the total number of customers the firm currently provides Internet service. If possible, please provide total residential, business and government customers;

(8) The organizational/leadership structure of the firm;

(9) Project manager’s experience and management approach;

(10 A list of each partner and subcontractor utilized in the project;

(11) The role of each partner and subcontractor in the project;

(12) West Virginia licensure of the firm, each partner, and each subcontractor;

(13) Staffing plans and the qualifications of the workforce for the project;

(14) Experience of the firm in similar projects;

(15) A list and contact information of major clients for the past three years;

(16) Explanation of financial capacity and capability to undertake this project including data;

(17) Up-to-date audited financial statements, bank statements, or SEC filings;

(18) Any local, state, or federal resources identified for use in the project;

(19) Estimated costs to develop this conceptual proposal into a detailed broadband network design in the event of the firm’s proposal selection to the detailed phase;

(20) Estimated time frame to complete the detailed design and associated phased deployment project plan; and

(21) Clearly identify any assumptions regarding ownership and operation of the proposed broadband network. Include any assumptions regarding short or long-term maintenance.

(c) Upon approval by the agency of a submitted proposal, written notice shall be given to the council.

(d) Upon approval by the agency, the proposal must also be sent to the design-build board to be approved or denied under these provisions. If the proposal is not acted upon within 60 days, the proposal is automatically accepted and moved to the detailed phase.

§5-22B-7. Detailed Phase.


(a) This phase shall work to provide details and a working plan for the proposed broadband project. The agency that approved the initial conceptual proposal shall work with the firm to meet the criteria under these provisions.

(b) Upon acceptance of a proposal to this phase, the agency shall submit monthly reports until the completion of the project to the design-build board and may have this approval revoked if the design-build board has concerns that are not remedied in a timely manner under these provisions.

(c) All proposals shall include:

(1) Detailed broadband network design to expand broadband access and capacity;

(2) Description of the plan to provide cost-effective services that are reasonably priced given the target market;

(3) Detailed Deployment Plan which includes:

(A) Comprehensive Scope of Work;

(B) Deliverables;

(C) Financial Plan for construction cost estimates and necessary funding other than private investment which contains enough detail to allow analysis of the proposal’s feasibility; and

(D) Any other factors deemed necessary by the design-build board.

(d) The agency and the firm shall meet with the county to review the design and estimated costs to determine available funding and set a phased approach to :

(1) Develop final design and engineering drawings to support the deployment;

(2) Prepare a phased deployment project plan in collaboration with the locality; and

(3) Plan to work with the agency to pursue state and federal funding opportunities to offset the costs of deployment.

chapter 31g. broadband enhancement and expansion policies.

ARTICLE 1. Broadband enhancement council.

§31G-1-4. Powers and duties of the council generally.


(a) The council shall:

(1) Explore any and all ways to expand access to broadband services, including, but not limited to, middle mile, last mile, and wireless applications;

(2) Gather data regarding the various speeds provided to consumers in comparison to what is advertised. The council may request the assistance of the Legislative Auditor in gathering this data;

(3) Explore the potential for increased use of broadband service for the purposes of education, career readiness, workforce preparation and alternative career training;

(4) Explore ways for encouraging state and municipal agencies to expand the development and use of broadband services for the purpose of better serving the public, including audio and video streaming, voice-over Internet protocol, teleconferencing and wireless networking; and

(5) Cooperate and assist in the expansion of electronic instruction and distance education services.

(b) In addition to the powers set forth elsewhere in this article, the council is hereby granted, has and may exercise the powers necessary or appropriate to carry out and effectuate the purpose and intent of this article, as enumerated herein. The council shall have the power and capacity to may:

(1) Provide consultation services to project sponsors in connection with the planning, acquisition, improvement, construction, or development of any broadband deployment project;

(2) Promote awareness of public facilities that have community broadband access that can be used for distance education and workforce development;

(3) Advise on deployment of e-government portals such that all public bodies and political subdivisions have homepages, encourage one-stop government access and that all public entities stream audio and video of all public meetings;

(4) Make and execute contracts, commitments, and other agreements necessary or convenient for the exercise of its powers, including, but not limited to, the hiring of consultants to assist in the mapping of the state and categorization of areas within the state;

(5) Acquire by gift or purchase, hold, or dispose of real property and personal property in the exercise of its powers and performance of its duties as set forth in this article;

(6) Receive and dispense funds appropriated for its use by the Legislature or other funding sources or solicit, apply for, and receive any funds, property or services from any person, governmental agency, or organization to carry out its statutory duties;

(7) to oversee Oversee the use of conduit installed pursuant to section two of article three of this chapter; and to

(8) Perform any and all other activities in furtherance of its purpose.

(c) The council shall exercise its powers and authority to advise and make recommendations to the Legislature on bringing broadband service to unserved and underserved areas, as well as to propose statutory changes that may enhance and expand broadband in the state.

(d) The council shall report to the Joint Committee on Government and Finance on or before January 1 of each year. The report shall include the action that was taken by the council during the previous year in carrying out the provisions of this article. The council shall also make any other reports as may be required by the Legislature or the Governor.

(e) The council together with the Design Build Board shall administer duties of the Multi Phase Procurement for Broadband Projects Act pursuant to §5-22B-1 et seq. of this code.

 

NOTE: The purpose of this bill is to create the Multi Phase Procurement for Broadband Projects Act for public-private partnership broadband projects.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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