Code of Virginia — Title 2.2 (Administration of Government), Chapter 43.1 (Construction Management and Design-Build Contracting)
§ 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;

3. Post all documents open to public inspection pursuant to § 2.2-4342 that are exchanged between the covered institution and the Department on the Department'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'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'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'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.

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