                                 CODE OF VIRGINIA

CONSTRUCTION MANAGEMENT OR DESIGN-BUILD CONTRACTS FOR COVERED INSTITUTIONS
AUTHORIZED (§ 2.2-4381)

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;

   3. Post all documents open to public inspection pursuant to &#xA7; 2.2-4342
   that are exchanged between the covered institution and the Department on the
   Department&#8217;s central electronic procurement website, known as eVA, prior
   to the date of submission of proposals; and

   4. Submit Department-reviewed procedures to its board of visitors or governing
   board for adoption.

C. Procedures adopted by a board of visitors pursuant to this article shall
include the following requirements:

   1. A written determination is made in advance by the covered institution that
   the design-bid-build project delivery method 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&#8217;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 Division shall not be 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 of similar complexity and size;

   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;

   7. The procedures allow for a two-step competitive negotiation process;

   8. The procedures allow the covered institution to post on the
   Department&#8217;s central electronic procurement website known as eVA when
   and where the general contractor plans to advertise bid packages for
   subcontracting opportunities when appropriate; and

   9. The procedures require the covered institution to provide documentation to
   all of the unsuccessful proposers, upon request, of the processes used in
   awarding the contract.

D. The Department shall evaluate the proposed procurement method selected by a
covered institution and offer its 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 approval or denial
within such five-working-day period. The written 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 decision
of the Department to the contrary, the Department shall present the written
denial issued pursuant to subsection E to the board of visitors or governing
board of such covered institution and the covered institution shall obtain
approval by a majority vote of such board for (i) projects funded by funds other
than those provided to such covered institution from the state general fund or
(ii) projects of $65 million or more funded in whole or in part from state
general funds. If the project is funded in whole or in part from state general
funds, a representative from the Department, to the extent the Department deems
practicable, shall be included in the process for the selection of a contractor
following such approval by the board of visitors or governing board. For
projects under $65 million funded in whole or in part from state general funds,
the covered institution shall obtain approval from the Chairmen of the House
Committee on Appropriations and the Senate Committee on Finance and
Appropriations, or their designees, and a representative of the Department.
			A written statement of a covered institution&#8217;s decision to not follow
the 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.

HISTORY: 2017, cc. 699, 704; 2024, cc. 469, 490.