Wyo. Code R. 027-0002-9
Effective Date: 02/02/2022 to Current
Rule Type: Current Rules & Regulations
Reference Number: 027.0002.9.02022022
Section 1. Authority. This Chapter is promulgated pursuant to Wyoming Statutes 21-15-114(a)(xv), 21-15-117, 21-15-118(c) and 21-15-123(f)(v).
(a) Master Memoranda of Understanding (MOU's) and Project Agreements shall be developed to establish the working relationship between the Department and the district.
(i) Master MOUs. The Master MOU defines the duties and responsibilities of the Department and the district for non-capital construction functions, including, but not limited to, major building and facility repair and replacement, facility planning, condition assessments, and annual reporting.
(ii) Project Agreements. Project Agreements define the duties and responsibilities of the Department and the district for construction and renovation of school buildings and facilities, including, but not limited to, determination of the most cost effective remedy, land purchase, design, procurement and construction. No work or disbursement of funds shall proceed on projects until a Project Agreement is executed between the Department and the district. Districts shall not expend any appropriated project funds until authorized by the Director.
(b) Departmental Review. The Department shall review school construction projects for compliance with uniform statewide adequacy standards. This review shall be ongoing throughout the planning, budgeting, design, and construction process.
Section 3. Program Planning. Upon determination of the most cost effective remedy, the Department shall develop a detailed scope of the work and estimated budget for the remedy in consultation with the district. The scope of the work and estimated budget shall form the basis of any future budget request. A request to change the scope of the work shall be presented to the Commission along with all financial implications and justification for the change. If approved by the Commission, the Department shall amend the scope of work and estimated budget.
(a) To further the concept of value-added projects, the Commission encourages using prototypical designs and prototypical components. When appropriate and feasible to meet the needs of a district, prototypes may shorten design time, simplify value engineering, decrease costs, and increase construction efficiency.
(b) The Department shall maintain a database of school floor plans that districts may consider for re-use.
(c) School districts may consider the use of prototype designs (past designs) from the Department database or other designs that may be available from architects. The district may utilize the services of a design consultant to determine whether prototype designs may be appropriate or whether modifications of prototype plans are feasible to meet the needs of the district.
(a) Projects shall be designed and constructed using the design-bid-build delivery method unless extenuating circumstances exist that necessitate the adoption of an alternate method. District requests for the Commission to approve an alternate design and construction delivery method shall explain the reason(s) an alternate project delivery method is preferable to the design-bid-build delivery method.
(b) The Commission shall consider the following non-exclusive and non-prioritized list of factors in making a determination to allow alternate design and construction delivery methods:
(a) Requests for land acquisition may originate with a request by a district to the Department or as a Department recommendation. The Commission shall determine if there is a need based on capacity, condition, health, safety, determination of the most cost effective remedy, or the best interests of the State.
(i) Many Wyoming schools pre-date the adoption of current standards. School sites which pre-date the original adoption of standards in 2003 may be larger or smaller than the recommended sizes. School sites smaller than these recommendations are presumed to be adequately sited unless the Commission determines otherwise.
(b) If the Commission determines a need exists, the Commission shall:
(i) Examine availability of current district land;
(ii) If a replacement building or facility renovation or addition, determine if the current site is appropriate;
(iii) If new land is required, consider land swaps and acquisition of publicly-owned land or land in conjunction with a development prior to considering other private land.
(c) If the Commission determines that land acquisition is necessary, the district in consultation with the Department shall conduct an analysis of potential sites or land. Prior to initiating non-confidential site analysis activities the district in consultation with the Department shall obtain a proposed purchase agreement fixing the purchase price and other conditions of purchase, subject to site analysis and due diligence investigation results that are acceptable to the district and Department. Site analysis shall be conducted in accordance and comply with the Commission rules and design guidelines and shall be approved by the Commission. Prior to acquisition the district in consultation with the Department shall conduct a due diligence investigation, which includes the following:
(i) Legal description of property;
(ii) Title commitment;
(iii) Two (2) land appraisals (using the average of two if within five percent (5%) of each other, otherwise a third appraisal will be obtained and the average of the two (2) closest appraisals will be used);
(iv) Site survey to include soil conditions, traffic patterns, utilities and site topography;
(v) Phase 1 environmental assessment;
(vi) Annexation and zoning issues;
(vii) Local development requirements; and
(viii) Preliminary and final plat.
(d) The Commission may grant a waiver to any of the above due diligence requirements for good cause.
(e) All phases of the land acquisition process may be kept confidential to the extent permissible by law and in accordance with this subsection. Neither the district nor the Commission shall divulge information on proposed land acquisitions prior to such time as all due diligence has been completed and the land purchase price has been negotiated, unless both the Commission and the district consent to the disclosure or law requires such disclosure.
(i) Districts shall use Commission contracts for capital projects, unless otherwise approved by the Commission and Attorney General's Office.
(ii) Modifications to Commission contracts, including adjustments to further stipulate services and reflect the scope of the particular project, on a project-by-project basis may be submitted to the Department for review and approval in consultation with the Attorney General's Office. Major modifications, as determined by the Department, or alternatives to Commission contracts require approval by the Department, Attorney General's Office, and the Commission.
(iii) Contracts shall be executed by the district and other parties and routed to the Department for its review and approval as to form.
(iv) Contracts modified and executed without the necessary approvals shall not be eligible for State funding.
(i) Owner's representatives are individuals or entities contracted on a project-specific basis to assist the district and State in ensuring the project is managed and completed in accordance with the contracts related to the project.
(ii) The Department shall determine whether an Owner's Representative is necessary, taking into consideration the expense, time, and ability of district and departmental staff.
(a) Value engineering is a process to achieve the best balance of cost-to-value in projects for districts and the State. In addition to value engineering required by design or construction contracts, the Department shall conduct a value engineering analysis using a collaborative process to objectively consider the best approach to design and construct projects in accordance with Section 12(d) of this Chapter. Value engineering shall include life cycle cost analysis of all major systems in the facility.
(i) Value engineering review shall occur at the schematic design phase (10% Design and the design documents phase (35% Design) or as otherwise determined by the Department. The design of the facility shall conform to value engineering recommendations before it proceeds into the next phase of development unless waived in writing by the Director or by action of the Commission pursuant to Chapter 2 § 3(a)(v) of these Rules.
(ii) Value engineering strategies learned on previous projects shall be considered for subsequent projects.
Section 9. Project Closeout. Absent extenuating circumstances, fund balances remaining from project budgets that are unencumbered or unobligated are subject to reversion no later than one year after the date of Substantial Completion.
(a) On-site or off-site infrastructure includes streets, sidewalks, traffic signals, bike and walk paths, electric, gas, water, sewage systems, storm systems, telephone, data, and other facilities approved by the Commission.
(i) On-site infrastructure solely attributable to the needs of the project and of the capacity required to serve the school facility remedy in accordance with the Commission’s design guidelines shall be included in the cost per square foot budget for the building.
(ii) The Department shall budget for the cost of the development of on-site or off-site infrastructure solely attributable to the needs of the project and additional infrastructure costs attributable to shared use.
(b) Requests for on-site or off-site infrastructure to be shared with others shall be made by the district in writing and shall include a full description of the project, including the cost of the proposed infrastructure, the functional capacity properly attributable to the needs of the project, contemplated excess functional capacity, and a dedicated source of repayment.
(i) Requests shall be presented to the Department during the initial planning and budgeting for the proposed project. The Department shall make a determination whether further information, such as design engineering or cost data, is required before the request is presented to the Commission for its consideration as part of its budget recommendation. The district shall notify the affected municipality or local governmental entity of the request and of the time and location at which it will be considered by the Commission.
(ii) Requests will only address infrastructure needed for the school building and facility.
(iii) The Department, in consultation with the Attorney General’s Office, shall determine if a contractual agreement is required for cost-sharing, repayment, or operation agreement(s) with the affected parties. Cost-sharing or repayment agreements shall include provisions for reimbursement of departmental expenditures for functional capacity beyond the capacity properly attributable to the needs of the project to be repaid to the Department over time with interest. Amounts repaid shall be deposited by the Department into the school capital construction account.
(iv) The functional capacity needs of school buildings and facilities shall take precedence over the needs of others.
(c) If extensions to municipal or other Department-approved utilities are not available or are cost prohibitive, then on-site systems may be constructed.
(d) The district shall notify the affected municipality or other local governmental entity in writing of Commission action taken related to on-site or off-site infrastructure and reasons for the action.
(a) In accordance with W.S. 21-15-119(c) and W.S. 28-11-301(c)(iv), budgets for prioritized projects may be adjusted by the Commission and transfers between project phases may be made by the Department.
(b) In the event that any particular project budget is or appears to be insufficient to fully fund that project remedy, the following non-exclusive and non-prioritized list of factors shall be considered by the Department in recommending whether, and how, that project will be allowed to proceed with legislative funding:
(i) Verify value engineering recommendations have been followed;
(ii) Verify aspects of the design of the project to identify cost savings which may be generated within the project. In this regard, all parties shall reexamine earlier assumptions in the search for viable, cost-effective and efficient design changes;
(iii) Verify the scheduling, or phasing, of the project to determine if budgeted funds will be required and cost-savings or cost-deferrals may be obtained by that scheduling. Decision-making shall take into account the funding cycles of the Legislature and the uncertainty of future funding.
(c) If these non-prioritized factors are insufficient to achieve project costs within the project budget, including adjustment for inflation, the Commission shall consider the following additional factors:
(i) Change of delivery method;
(ii) Other sources of funding, including funding held by the Commission;
(iii) Delayed start date of the project; and
(iv) Complete or partial re-planning or re-design of the project.
(a) The Commission's Facility Design Standards and Guidelines do not apply to existing school buildings and facilities and shall not be used for evaluating the adequacy of any existing school building or facility.
(b) For all Projects, as defined in W.S. 21-15-111(a)(iv), appropriated by the legislature or funded by the Commission, the Department shall include in the Project Agreement the most recent version of the Commission's applicable Facility Design Standards and Guidelines. The Department shall require that the Facility Design Standards and Guidelines incorporated in the Project Agreement govern the expenditure of state funds for that project for the duration of that project.
(c) In accordance with W.S. 21-15-114(a)(vii), the Commission shall adopt Facility Design Standards and Guidelines for the following types of school buildings and facilities:
(iii) School Bus Maintenance and Parking Facilities.
(d) The Department shall include in the Project Agreement a provision requiring that when the Facility Design Standards and Guidelines are not specific on the type, quantity, or quality of a design element or component, the architect shall select the most efficient and cost effective type, quantity, or quality of the element or component, subject to approval by the Department. The provision shall further provide that if a district opts for an element or component exceeding that approved by the Department, such element or component shall be considered district-initiated and shall not be funded out of the capital construction budget.
(e) The Department shall include in the Project Agreement a requirement that, in the event the legislature funds a project of a type that is not covered by the Commission's existing Facility Design Standards and Guidelines, the architect shall work with the Department to ensure that the design is adequate, efficient and cost effective and shall utilize the Commission's existing Facility Design Standards and Guidelines in doing so to the extent those Guidelines are applicable.
(f) Project Agreements. Project Agreements define the duties and responsibilities of the Department and the district for construction and renovation of school buildings and facilities, including, but not limited to, determination of the most cost effective remedy, land purchase, design, procurement and construction. Prior to the beginning of any Project, as defined in W.S. 21-15-111(a)(iv), the Department and district shall sign a Project Agreement that enumerates what portion of the work is state funded. No work or disbursement of funds shall proceed on Projects until a Project Agreement is executed between the Department and the district. Districts shall not be reimbursed and the Department shall not pay for any work done on any portion of the project prior to the Director's authorization. Furthermore, the Department shall not pay for or reimburse any district for expenses incurred prior to the execution of the Project Agreement and a commission-approved contract with the professional service provider or contractor, with the exception of reasonable owner's overhead expenses.
(g) Districts shall provide to the Department, prior to the commencement of any capital construction project as that term is defined in W.S. 9-2-3001(b)(ii), an opportunity to review the final design, drawings and plans of the project. This review shall include, but is not limited to, consideration of whether the design, drawings and plans of the proposed project utilizes energy efficient best practice techniques and processes. This provision applies to any capital construction project for which the state is required to expend state funds to fully or partially pay for operations, routine maintenance or major maintenance expenses, including state-initiated remedies that include district-initiated elements and district-initiated projects.
(h) The Commission shall incorporate reasonable community and district input and participation for conforming an aesthetic design within the community when a new school building or facility is designed. The Commission shall defer to the reasonable aesthetic design choices of the district, provided that those design choices do not bring the building or facility to a condition exceeding the Commission’s relevant adequacy standards.