HB816: Va. Public Procurement Act; any bid or offer under Act to identify all subcontractors.
Be it enacted by the General Assembly of Virginia:
1. § 1. That the Department of General Services (the Department) shall review the merits of amending the Virginia Public Procurement Act (§ 2.2-4300 et seq. of the Code of Virginia) or otherwise modifying Virginia's public contracting process, to require bidders and their offers to identify all subcontractors involved, the estimated amount of compensation to be paid to the subcontractors, a description of the work to be done by the subcontractors, and a copy of all agreements between the contractor and subcontractors related to the bid or offer. The Department shall also evaluate the merits of amending the Virginia Public Procurement Act, or otherwise modifying Virginia's public contracting process, to provide that no state agency shall furnish final payment to any prime contractor without first ensuring that all subcontractors to such prime contractor on such contract have been paid in full. The Department shall report its findings and, if it deems appropriate, shall include in the report a model policy for state agencies to incorporate the collection of subcontractor information or final payment standards, or both, into their agency public contracting process. The Department shall submit its report to the General Assembly no later than September 1, 2022. The Department may satisfy its duties under this act by incorporating its review into the work of the public body procurement workgroup established by Item 82 of Chapter 552 of the Acts of Assembly of 2021, Special Session I.
HOUSE BILL NO. 816
Be it enacted by the General Assembly of Virginia:
1. That § 2.2-4303 of the Code of Virginia is amended and reenacted as follows:
§ 2.2-4303. Methods of procurement.
A. All public contracts with nongovernmental contractors for the purchase or lease of goods, or for the purchase of services, insurance, or construction, shall be awarded after competitive sealed bidding, or competitive negotiation as provided in this section, unless otherwise authorized by law.
B. Professional services shall be procured by competitive negotiation.
C. Goods, services other than professional services, and insurance may be procured by competitive sealed bidding or competitive negotiation.
Upon a written determination made in advance by (i) the Governor or his designee in the case of a procurement by the Commonwealth or by a department, agency or institution thereof or (ii) the local governing body in the case of a procurement by a political subdivision of the Commonwealth, that competitive negotiation is either not practicable or not fiscally advantageous, insurance may be procured through a licensed agent or broker selected in the manner provided for the procurement of things other than professional services set forth in § 2.2-4302.2. The basis for this determination shall be documented in writing.
D. Construction may be procured only by competitive sealed bidding, except that competitive negotiation may be used in the following instances:
1. By any public body on a fixed price design-build basis or construction management basis as provided in Chapter 43.1 (§ 2.2-4378 et seq.); or
2. By any public body for the construction of highways and any draining, dredging, excavation, grading or similar work upon real property upon a determination made in advance by the public body and set forth in writing that competitive sealed bidding is either not practicable or not fiscally advantageous to the public, which writing shall document the basis for this determination.
E. Upon a determination in writing that there is only one source practicably available for that which is to be procured, a contract may be negotiated and awarded to that source without competitive sealed bidding or competitive negotiation. The writing shall document the basis for this determination. The public body shall issue a written notice stating that only one source was determined to be practicably available, and identifying that which is being procured, the contractor selected, and the date on which the contract was or will be awarded. This notice shall be posted on the Department of General Services' central electronic procurement website or other appropriate websites, and in addition, public bodies may publish in a newspaper of general circulation on the day the public body awards or announces its decision to award the contract, whichever occurs first. Posting on the Department of General Services' central electronic procurement website shall be required of any state public body. Local public bodies are encouraged to utilize the Department of General Services' central electronic procurement website to provide the public with centralized visibility and access to the Commonwealth's procurement opportunities.
F. In case of emergency, a contract may be awarded without competitive sealed bidding or competitive negotiation; however, such procurement shall be made with such competition as is practicable under the circumstances. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file. The public body shall issue a written notice stating that the contract is being awarded on an emergency basis, and identifying that which is being procured, the contractor selected, and the date on which the contract was or will be awarded. This notice shall be posted on the Department of General Services' central electronic procurement website or other appropriate websites, and in addition, public bodies may publish in a newspaper of general circulation on the day the public body awards or announces its decision to award the contract, whichever occurs first, or as soon thereafter as is practicable. Posting on the Department of General Services' central electronic procurement website shall be required of any state public body. Local public bodies are encouraged to utilize the Department of General Services' central electronic procurement website to provide the public with centralized visibility and access to the Commonwealth's procurement opportunities.
G. A public body may establish purchase procedures, if adopted in writing, not requiring competitive sealed bids or competitive negotiation for single or term contracts for:
1. Goods and services other than professional services and non-transportation-related construction, if the aggregate or the sum of all phases is not expected to exceed $200,000; and
2. Transportation-related construction, if the aggregate or sum of all phases is not expected to exceed $25,000.
However, such small purchase procedures shall provide for competition wherever practicable.
Such purchase procedures may allow for single or term contracts for professional services without requiring competitive negotiation, provided the aggregate or the sum of all phases is not expected to exceed $80,000.
Where small purchase procedures are adopted for construction, the procedures shall not waive compliance with the Uniform State Building Code.
For state public bodies, informal solicitations conducted under this subsection shall require the posting of a public notice on the Department of General Services' central electronic procurement website. Local public bodies are encouraged to utilize the Department of General Services' central electronic procurement website to provide the public with centralized visibility and access to the Commonwealth's procurement opportunities.
H. Upon a determination made in advance by a public body and set forth in writing that the purchase of goods, products or commodities from a public auction sale is in the best interests of the public, such items may be purchased at the auction, including online public auctions. Purchase of information technology and telecommunications goods and nonprofessional services from a public auction sale shall be permitted by any authority, department, agency, or institution of the Commonwealth if approved by the Chief Information Officer of the Commonwealth. The writing shall document the basis for this determination. However, bulk purchases of commodities used in road and highway construction and maintenance, and aggregates shall not be made by online public auctions.
I. The purchase of goods or nonprofessional services, but not construction or professional services, may be made by reverse auctioning. However, bulk purchases of commodities used in road and highway construction and maintenance, and aggregates shall not be made by reverse auctioning.
J. For any bid or offer made pursuant to this article, the bidder or offeror shall provide:
1. The identities of all subcontractors, if any, involved in the bid or offer;
2. The estimated amount of compensation to be paid to the subcontractors;
3. A description of the work to be done by the subcontractors; and
4. A copy of all agreements between the contractor and subcontractors related to the bid or offer.