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1996 SESSION


CHAPTER 962
An Act to amend and reenact §§ 2.1-1.6 and 9-6.25:2 of the Code of Virginia; to amend the Code of Virginia by adding sections numbered 2.1-483.1:2 and 11-41.2:2 through 11-41.2:5; and to repeal § 11-41.2:1 of the Code of Virginia effective January 1, 1997, relating to the Virginia Public Procurement Act; design-build authority for public bodies other than the Commonwealth.
[H 336]
Approved April 17, 1996

Be it enacted by the General Assembly of Virginia:

1. That §§ 2.1-1.6 and 9-6.25:2 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding sections numbered 2.1-483.1:2 and 11-41.2:2 through 11-41.2:5 as follows:

§ 2.1-1.6. State boards.

A. There shall be, in addition to such others as may be established by law, the following permanent collegial bodies affiliated with a state agency within the executive branch:

Accountancy, Board for

Aging, Advisory Board on the

Agriculture and Consumer Services, Board of

Air Pollution, State Advisory Board on

Alcoholic Beverage Control Board, Virginia

Apple Board, Virginia State

Appomattox State Scenic River Advisory Board

Aquaculture Advisory Board

Architects, Professional Engineers, Land Surveyors and Landscape Architects, State Board for

Art and Architectural Review Board

Athletic Board, Virginia

Auctioneers Board

Audiology and Speech-Language Pathology, Board of

Aviation Board, Virginia

Barbers, Board for

Branch Pilots, Board for

Bright Flue-Cured Tobacco Board, Virginia

Building Code Technical Review Board, State

Catoctin Creek State Scenic River Advisory Board

Cattle Industry Board, Virginia

Cave Board

Certified Seed Board, State

Chesapeake Bay Local Assistance Board

Chickahominy State Scenic River Advisory Board

Child Abuse and Neglect, Advisory Board on

Chippokes Plantation Farm Foundation, Board of Trustees

Clinch Scenic River Advisory Board

Coal Mining Examiners, Board of

Coal Research and Development Advisory Board, Virginia

Coal Surface Mining Reclamation Fund Advisory Board

Coastal Land Management Advisory Council, Virginia

Conservation and Development of Public Beaches, Board on

Conservation and Recreation, Board of

Contractors, Board for

Corn Board, Virginia

Correctional Education, Board of

Corrections, State Board of

Cosmetology, Board for

Criminal Justice Services Board

Dark-Fired Tobacco Board, Virginia

Deaf and Hard-of-Hearing, Advisory Board for the Department for the

Dentistry, Board of

Design-Build/Construction Management Review Board

Education, State Board of

Egg Board, Virginia

Emergency Medical Services Advisory Board

Employment Agency Advisory Board

Farmers Market Board, Virginia

Film Office Advisory Board

Fire Services Board, Virginia

Forensic Science Advisory Board

Forestry, Board of

Funeral Directors and Embalmers, Board of

Game and Inland Fisheries, Board of

Geology, Board for

Goose Creek Scenic River Advisory Board

Health Planning Board, Virginia

Health Professions, Board of

Health, State Board of

Hearing Aid Specialists, Board for

Hemophilia Advisory Board

Historic Resources, Board of

Housing and Community Development, Board of

Industrial Development Services Advisory Board

Insurance Advisory Board, State

Irish Potato Board, Virginia

Laboratory Services Advisory Board

Litter Control and Recycling Fund Advisory Board

Marine Products Board, Virginia

Medical Advisory Board, Department of Motor Vehicles

Medical Board of the Virginia Retirement System

Medicare and Medicaid, Advisory Board on

Medicine, Board of

Mental Health, Mental Retardation and Substance Abuse Services Board, State

Migrant and Seasonal Farmworkers Board

Military Affairs, Board of

Mineral Mining Examiners, Board of

Minority Business Enterprise, Interdepartmental Board of the Department of

Networking Users Advisory Board, State

Nottoway State Scenic River Advisory Board

Nursing, Board of

Nursing Home Administrators, Board of

Occupational Therapy, Advisory Board on

Oil and Gas Conservation Board, Virginia

Opticians, Board for

Optometry, Board of

Peanut Board, Virginia

Personnel Advisory Board

Pesticide Control Board

Pharmacy, Board of

Physical Therapy to the Board of Medicine, Advisory Board on

Plant Pollination Advisory Board

Polygraph Examiners Advisory Board

Pork Industry Board, Virginia

Poultry Products Board, Virginia

Private College Advisory Board

Private Security Services Advisory Board

Professional and Occupational Regulation, Board for

Professional Counselors, Board of

Professional Soil Scientists, Board for

Psychiatric Advisory Board

Psychology, Board of

Public Buildings Board, Virginia

Public Telecommunications Board, Virginia

Radiation Advisory Board

Real Estate Appraiser Board

Real Estate Board

Reciprocity Board, Department of Motor Vehicles

Recreational Fishing Advisory Board, Virginia

Recreation Specialists, Board of

Reforestation Board

Rehabilitation Providers, Advisory Board on

Rehabilitative Services, Board of

Respiratory Therapy, Advisory Board on

Retirement System Review Board

Rockfish State Scenic River Advisory Board

Safety and Health Codes Board

Seed Potato Board

Sewage Handling and Disposal Appeal Review Board, State Health Department

Shenandoah State Scenic River Advisory Board

Small Business Advisory Board

Small Business Environmental Compliance Advisory Board

Small Grains Board, Virginia

Social Services, Board of

Social Work, Board of

Soil and Water Conservation Board, Virginia

Soybean Board, Virginia

State Air Pollution Control Board

Substance Abuse Certification Board

Surface Mining Review, Board of

Sweet Potato Board, Virginia

T & M Vehicle Dealers' Advisory Board

Teacher Education and Licensure, Advisory Board on

Tourism and Travel Services Advisory Board

Transportation Board, Commonwealth

Transportation Safety, Board of

Treasury Board, The, Department of the Treasury

Veterans' Affairs, Board on

Veterinary Medicine, Board of

Virginia Board for Asbestos Licensing

Virginia Coal Mine Safety Board

Virginia Correctional Enterprises Advisory Board

Virginia Employment Commission, State Advisory Board for the

Virginia Higher Education Tuition Trust Fund, Board of the

Virginia Horse Industry Board

Virginia Manufactured Housing Board

Virginia Retirement System, Board of Trustees

Virginia Sheep Industry Board

Virginia Veterans Cemetery Board

Virginia Waste Management Board

Visually Handicapped, Virginia Board for the

Voluntary Formulary Board, Virginia

War Memorial Foundation, Virginia, Board of Trustees

(Contingently repealed) Waste Management Facility Operators, Board for

Water Resources Research Center Statewide Advisory Board, Virginia

Waterworks and Wastewater Works Operators, Board for

Well Review Board, Virginia

Youth and Family Services, State Board of.

B. Notwithstanding the definition for "board" as provided in § 2.1-1.2, the following entities shall be referred to as boards:

Compensation Board

State Board of Elections

State Water Control Board

Virginia Parole Board

Virginia Veterans Care Center Board of Trustees.

§ 2.1-483.1:2. Assistance to the Design-Build/Construction Management Review Board.

The Director of the Division of Engineering and Buildings or his designee shall serve as a member of the Design-Build/Construction Management Review Board (the Review Board) created pursuant to § 11-41.2:3. The Division shall provide staff support to the Review Board in the conduct of its duties in accordance with § 11-41.2:4.

§ 9-6.25:2. Policy boards, commissions and councils.

There shall be, in addition to such others as may be designated in accordance with § 9-6.25, the following policy boards, commissions and councils:

Apprenticeship Council

Athletic Board

Auctioneers Board

Blue Ridge Regional Education and Training Council

Board for Accountancy

Board for Architects, Professional Engineers, Land Surveyors and Landscape Architects

Board for Barbers

Board for Contractors

Board for Cosmetology

Board for Geology

Board for Hearing Aid Specialists

Board for Opticians

Board for Professional and Occupational Regulation

Board for Professional Soil Scientists

Board for Waterworks and Wastewater Works Operators

Board of Agriculture and Consumer Services

Board of Audiology and Speech-Language Pathology

Board of Coal Mining Examiners

Board of Conservation and Recreation

Board of Correctional Education

Board of Dentistry

Board of Directors, Virginia Student Assistance Authorities

Board of Funeral Directors and Embalmers

Board of Health Professions

Board of Historic Resources

Board of Housing and Community Development

Board of Medical Assistance Services

Board of Medicine

Board of Mineral Mining Examiners

Board of Nursing

Board of Nursing Home Administrators

Board of Optometry

Board of Pharmacy

Board of Professional Counselors

Board of Psychology

Board of Recreation Specialists

Board of Social Services

Board of Social Work

Board of Surface Mining Review

Board of Veterinary Medicine

Board on Conservation and Development of Public Beaches

Chesapeake Bay Local Assistance Board

Child Day Care and Early Childhood Programs, Virginia Council on

Child Day-Care Council

Commission on Local Government

Commonwealth Transportation Board

Council on Human Rights

Council on Information Management

Criminal Justice Services Board

Design-Build/Construction Management Review Board

Disability Services Council

Farmers Market Board, Virginia

Immigrant and Refugee Policy Council

Interdepartmental Council on Rate-setting for Children's Facilities

Library Board, The Library of Virginia

Marine Resources Commission

Milk Commission

Pesticide Control Board

Real Estate Appraiser Board

Real Estate Board

Reciprocity Board, Department of Motor Vehicles

Safety and Health Codes Board

Seed Potato Board

Southside Virginia Marketing Council

Specialized Transportation Council

State Air Pollution Control Board

State Board of Corrections

State Board of Elections

State Board of Health

State Board of Youth and Family Services

State Health Department, Sewage Handling and Disposal Appeal Review Board

State Library Board

State Mental Health, Mental Retardation and Substance Abuse Services Board

State Water Control Board

Substance Abuse Certification Board

Treasury Board, The, Department of the Treasury

Virginia Aviation Board

Virginia Board for Asbestos Licensing

Virginia Fire Services Board

Virginia Gas and Oil Board

Virginia Health Planning Board

Virginia Health Services Cost Review Council

Virginia Manufactured Housing Board

Virginia Parole Board

Virginia Public Telecommunications Board

Virginia Soil and Water Conservation Board

Virginia Voluntary Formulary Board

Virginia Waste Management Board

Virginia World Trade Council

(Contingently repealed) Waste Management Facility Operators, Board for.

§ 11-41.2:2. Design-build or construction management contracts for public bodies other than the Commonwealth; eligibility requirements; award of contract; records to be kept.

A. While the competitive sealed bid process remains the preferred method of construction procurement for public bodies in the Commonwealth, any public body other than the Commonwealth may enter into a contract for construction on a fixed price or not-to-exceed price design-build or construction management basis provided the public body complies with the requirements of this section and has obtained the approval of the Design-Build/Construction Management Review Board (the Review Board) pursuant to § 11-41.2:5.

Prior to making a determination as to the use of design-build or construction management for a specific construction project, the public body shall have in its employ or under contract a licensed architect or engineer with professional competence appropriate to the project who shall advise the public body regarding the use of design-build or construction management for that project and who shall assist the public body with the preparation of the Request for Proposal.

Prior to issuing a Request for Proposal for any design-build or construction management contract for a specific construction project, the public body shall:

1. Have adopted, by ordinance or resolution, written procedures governing the selection, evaluation and award of design-build and construction management contracts. Such procedures shall be consistent with those described in this chapter for the procurement of nonprofessional services through competitive negotiation. Such procedures shall also require Requests for Proposals to include and define the criteria of such construction project in areas such as site plans; floor plans; exterior elevations; basic building envelope materials; fire protection information plans; structural, mechanical (HVAC), and electrical systems; and special telecommunications; and may define such other requirements as the public body determines appropriate for that particular construction project. Except as may otherwise be approved by the Review Board, such procedures for:

a. Design-build construction projects shall include a two-step competitive negotiation process consistent with the applicable provisions of the Design-Build Selection Procedures of paragraph D of Chapter IX (Special Construction Procedures) of the Capital Outlay Manual of the Commonwealth developed by the Department of General Services through the Division of Engineering and Buildings. The provisions of the Capital Outlay Manual shall apply, mutatis mutandis, to such procedures for design-build construction projects.

b. Construction management projects shall include (i) selection procedures consistent with the applicable provisions of the Selection Procedures of paragraphs D and E of Chapter IX (Special Construction Procedures) of the Capital Outlay Manual of the Commonwealth and (ii) required construction management contract terms consistent with applicable provisions of the Required Construction Management Contract Terms of paragraph F of Chapter IX (Special Construction Procedures) of the Capital Outlay Manual. The provisions of the Capital Outlay Manual shall apply, mutatis mutandis, to such procedures for construction management projects.

2. Have documented in writing that for a specific construction project (i) a design-build or construction management contract is more advantageous than a competitive sealed bid construction contract; (ii) there is a benefit to the public body by using a design-build or construction management contract; and (iii) competitive sealed bidding is not practical or fiscally advantageous.

B. Once approved by the Review Board in accordance with § 11-41.2:5, the public body may award a design-build or construction management contract. Unless otherwise specified in the Request for Proposal, such contract shall be awarded to the fully qualified offeror who submits an acceptable proposal at the lowest cost in response to the Request for Proposal. The provisions of this subsection shall supersede any related provision in the Capital Outlay Manual.

C. The public body shall provide information as requested by the Review Board to allow post-project evaluation by the Review Board.

§ 11-41.2:3. Design-Build/Construction Management Review Board created; membership; terms; staffing; seal.

A. There is hereby created the Design-Build/Construction Management Review Board, hereinafter referred to as the Review Board, which shall be composed of nine members to be appointed by the Governor as follows: the Director of the Division of Engineering and Buildings of the Department of General Services, or his designee; two Class A general contractors selected from a list recommended by the Associated General Contractors; one architect and one engineer selected from a list recommended by the Consulting Engineers Council of Virginia, the Virginia Society of the American Institute of Architects, and the Virginia Society of Professional Engineers; and four representatives of public bodies other than the Commonwealth selected from a list recommended by the Virginia Municipal League and the Virginia Association of Counties. Each such list shall include the names of at least four persons who are experienced in competitive sealed bidding or competitive negotiation and in design-build or construction management procedures. The Director of the Division of Engineering and Buildings or his designee shall be a nonvoting member of the Review Board, except in the event of a tie vote of the Review Board.

B. The initial terms of the Review Board shall be as follows: three members shall be appointed for two-year terms, three members shall be appointed for three-year terms and three members shall be appointed for four-year terms. Thereafter, all appointments shall be for terms of four years, except that appointments to fill vacancies shall be for the unexpired terms. No person shall be eligible to serve for more than two successive full terms, except the Director of the Division of Engineering and Buildings, who shall serve until a successor qualifies.

C. The Review Board shall elect its chairman and vice-chairman from among its members. Members shall receive no compensation for their services as members of the Review Board, but shall receive reasonable expenses.

D. The Review Board shall meet monthly to conduct its business as required by § 11-41.2:4. However, monthly meetings may be canceled by the chairman if there is no business before the Review Board. Five members shall constitute a quorum.

E. Such staff support as is necessary for the conduct of the Review Board's business shall be furnished by the Division of Engineering and Buildings of the Department of General Services pursuant to § 2.1-483.1:2.

F. The Review Board shall adopt a seal by which it shall authenticate its proceedings.

§ 11-41.2:4. Duties of the Design-Build/Construction Management Review Board; transitional provisions relating to regulations.

A. The Review Board shall have the following duties:

1. Review submissions by public bodies other than the Commonwealth of draft or adopted ordinances or resolutions to determine if the process for the selection, evaluation and award of a design-build or construction management contract is in compliance with the provisions of subdivision A 1 of § 11-41.2:2;

2. Determine if the public body has complied with the provisions of § 11-41.2:2 relating to the retention of a licensed architect or engineer;

3. Review the findings and the basis of such findings submitted by the public body to determine if the public body has complied with the requirements of § 11-41.2:2 and that the findings made by the public body pursuant to § 11-41.2:2 are not unreasonable;

4. Develop guidelines relating to the documents and information to be reviewed by the Review Board;

5. Make post-project evaluations of construction projects procured by design-build or construction management contracts entered into by public bodies other than the Commonwealth, including cost and time savings, effectiveness of the selection, evaluation and award of such contracts, and the benefit to the public body; and

6. Report to the General Assembly and the Governor on or before December 1, 1999, concerning the Review Board's evaluation of and findings regarding all design-build and construction management construction undertaken by public bodies other than the Commonwealth since July 1, 1996, and any recommendations relating to future use of design-build or construction management contracts by such public bodies.

B. On or before July 1, 1997, the Review Board shall adopt regulations, as it deems appropriate, based on the substantive requirements of Chapter IX of the Capital Outlay Manual of the Commonwealth, for a two-step competitive negotiation process which shall be applied to design-build and construction management projects undertaken by public bodies other than the Commonwealth. For construction management projects, such regulations shall also include applicable provisions of the Required Construction Management Contract Terms of the Capital Outlay Manual. Such regulations shall also allow the Review Board to approve deviations from provisions of the Capital Outlay Manual that it deems appropriate. Such regulations, upon final adoption, shall supersede the provisions of subdivisions A 1 a and A 1 b of § 11-41.2:2. Regulations of the Review Board shall be adopted in accordance with the Administrative Process Act (§ 9-6.14:1 et seq.), except that regulations adopted pursuant to this subsection during the Review Board's first year of operation shall not be subject to the Administrative Process Act. Thereafter, all regulations shall be adopted in accordance with the Administrative Process Act.

§ 11-41.2:5. Review by the Review Board for design-build or construction management approval; effect of disapproval; review of Review Board decision.

The Review Board shall conduct such inquiry it deems appropriate and may require the submission of additional documents or information by the public body, in a form prescribed by the Review Board, to determine if the public body has complied with the provisions of § 11-41.2:2.

Within sixty days of the receipt of the request for review, the Review Board shall render a decision, unless a different timetable is agreed to by the public body. If the Review Board determines that the public body has complied with the provisions of § 11-41.2:2 and the findings made by the public body pursuant to subdivision A 2 of § 11-41.2:2 are not unreasonable, the Review Board shall approve such use. If the Review Board determines that (i) the public body has not complied with the provisions of § 11-41.2:2 or (ii) the findings made by the public body pursuant to subdivision A 2 of § 11-41.2:2 are unreasonable, it shall disapprove such use, and the public body shall not use a design-build or construction management contract to procure construction for the proposed project. If no decision is made by the Review Board within the sixty-day period or as otherwise agreed to by the public body, the proposed use of a design-build or construction management contract shall be deemed approved.

Any public body other than the Commonwealth which has been aggrieved by any action of the Review Board shall be entitled to a review of such action. Appeals from such actions shall be in accordance with the provisions of the Administrative Process Act (§ 9-6.14:1 et seq.).

2. That the provisions of §§ 11-41.2:2 through 11-41.2:5 shall not apply to any project authorized pursuant to § 11-41.2:1 on or before July 1, 1996, except to the extent such provisions relate to post-project evaluations by the Review Board of projects for which a construction contract is entered into by the public body on or after July 1, 1996.

3. That § 11-41.2:1 of the Code of Virginia is repealed, effective January 1, 1997.

4. That the authority granted to public bodies other than the Commonwealth pursuant to § 11-41.2:1 for projects listed therein shall continue notwithstanding the repeal of § 11-41.2:1 on January 1, 1997.