by Marc Monteleone and Damon Thomas | Bowles Rice LLP

In 1999, the West Virginia Legislature passed the Design-Build Procurement Act (“Act”), which is codified at Chapter 5, Article 22A of the West Virginia Code. Pursuant to the Act, all state departments, agencies, authorities, quasi-public corporations and all political subdivisions, including cities, counties, boards of education and public service districts, must comply with the Act when considering the use of design-build for an upcoming construction project.

Under the “Design-Build” delivery system of construction in accordance with the Act, the design and construction are performed under a single contract between a state agency and an engineer or architect duly registered in West Virginia, or a contractor duly qualified and licensed under the laws of West Virginia. According to national figures, the design-build delivery system of construction can reduce a project’s overall cost by as much as 30 percent and reduce construction time by as much as 25 percent. Therefore, the design-build method should be considered for any public project that can satisfy the requirements of the Act.

In order for a project to be constructed under the design-build method, the “agency” must receive approval from the Design-Build Review Board (“Board”).

The Board reviews potential projects based upon the following criteria:

  1. the agency has the appropriate legal authority to enter into a design-build contract;
  2. the agency requires a project design and construction timeline 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 early cost commitments;
  5. the agency provides a written plan for funding the project; and
  6. the agency has completed and submitted a written application for approval by the Board.

An agency considering the design-build method must make a presentation to the Board. If the presentation is successful, the Board approves a project for use of design-build construction.

In the private sector, more and more development projects are being constructed under the design-build method of construction. As with public sector projects, the process streamlines project delivery by converting the relationship between designers and builders into an alliance that fosters accountability, collaboration and teamwork. Essentially, design-build creates a one-stop shop integrated project delivery method that can bring significant benefits to owners. For example, in 1996, we were very pleased to implement the design-build method during construction of a new Charleston, West Virginia headquarters for our law firm, Bowles Rice. The massive urban project was completed ahead of schedule and under budget.

The benefits of design-build also includes improved communication between teams, increased levels of interdisciplinary fluency and transparency, increased innovation and significantly better budget control. For instance, cost efficiencies can be more easily achieved since the contractor and designer are working together throughout the entire process. By having a single source of responsibility for both design and construction, an owner can mitigate the risk of delays and claims that impact the cost and delivery of a project.

Finally, design-build reduces the delivery schedule by overlapping the project’s design and construction timelines, allowing the building to be designed in phases. Moreover, design-build encourages the design-builder to take more innovative and best-value approaches to designing and constructing the building. The designer and contractor working together from the inception of the project allows them to immediately address potential issues such as the early identification of any design errors, resulting in savings of cost and time for the owner.

Overall, the design-build method’s cost-effective and optimized approach serves as a real catalyst to construction and economic development projects of all sizes. Our regional law firm is extremely well-versed in the design-build process and welcomes the opportunity to help get your next project off the ground.

About the Authors:

Marc Monteleone serves as the Assistant Managing Partner and CFO of Bowles Rice. He authored West Virginia’s design-build legislation and served as Chair of the state’s Design-Build Review Board for nearly 20 years. He is a Charter Fellow in the Construction Lawyers Society of America. Contact Marc in the Charleston, WV office at 304-347-1132 or [email protected].

Damon Thomas is the newest member of the Bowles Rice Construction Law team. His practice covers the full spectrum of construction law, including but not limited to project contracts, project planning, project design and project management issues requiring mediation, arbitration or litigation. Contact Damon in the Southpointe, PA office at 724-514-8944 or [email protected].