"Affiliate" means an individual or business that controls, is controlledby, or is under common control with another individual or business. A personcontrols an entity if the person owns, directly or indirectly, more than 10percent of the voting securities of the entity. For the purposes of thisdefinition "voting security" means a security that (i) confers upon theholder the right to vote for the election of members of the board ofdirectors or similar governing body of the business or (ii) is convertibleinto, or entitles the holder to receive, upon its exercise, a security thatconfers such a right to vote. A general partnership interest shall be deemedto be a voting security.
"Best value," as predetermined in the solicitation, means the overallcombination of quality, price, and various elements of required services thatin total are optimal relative to a public body's needs.
"Business" means any type of corporation, partnership, limited liabilitycompany, association, or sole proprietorship operated for profit.
"Competitive negotiation" is a method of contractor selection that includesthe following elements:
1. Issuance of a written Request for Proposal indicating in general termsthat which is sought to be procured, specifying the factors that will be usedin evaluating the proposal and containing or incorporating by reference theother applicable contractual terms and conditions, including any uniquecapabilities or qualifications that will be required of the contractor.
2. Public notice of the Request for Proposal at least 10 days prior to thedate set for receipt of proposals by posting in a public area normally usedfor posting of public notices and by publication in a newspaper or newspapersof general circulation in the area in which the contract is to be performedso as to provide reasonable notice to the maximum number of offerors that canbe reasonably anticipated to submit proposals in response to the particularrequest. Public notice may also be published on the Department of GeneralServices' central electronic procurement website and other appropriatewebsites. Effective July 1, 2002, publishing by state agencies, departmentsand institutions on the public Internet procurement website designated by theDepartment of General Services shall be required. In addition, proposals maybe solicited directly from potential contractors.
3. a. Procurement of professional services. The public body shall engage inindividual discussions with two or more offerors deemed fully qualified,responsible and suitable on the basis of initial responses and with emphasison professional competence, to provide the required services. Repetitiveinformal interviews shall be permissible. The offerors shall be encouraged toelaborate on their qualifications and performance data or staff expertisepertinent to the proposed project, as well as alternative concepts. Inaddition, offerors shall be informed of any ranking criteria that will beused by the public body in addition to the review of the professionalcompetence of the offeror. The Request for Proposal shall not, however,request that offerors furnish estimates of man-hours or cost for services. Atthe discussion stage, the public body may discuss nonbinding estimates oftotal project costs, including, but not limited to, life-cycle costing, andwhere appropriate, nonbinding estimates of price for services. Proprietaryinformation from competing offerors shall not be disclosed to the public orto competitors. At the conclusion of discussion, outlined in thissubdivision, on the basis of evaluation factors published in the Request forProposal and all information developed in the selection process to thispoint, the public body shall select in the order of preference two or moreofferors whose professional qualifications and proposed services are deemedmost meritorious. Negotiations shall then be conducted, beginning with theofferor ranked first. If a contract satisfactory and advantageous to thepublic body can be negotiated at a price considered fair and reasonable, theaward shall be made to that offeror. Otherwise, negotiations with the offerorranked first shall be formally terminated and negotiations conducted with theofferor ranked second, and so on until such a contract can be negotiated at afair and reasonable price. Notwithstanding the foregoing, if the terms andconditions for multiple awards are included in the Request for Proposal, apublic body may award contracts to more than one offeror.
Should the public body determine in writing and in its sole discretion thatonly one offeror is fully qualified, or that one offeror is clearly morehighly qualified and suitable than the others under consideration, a contractmay be negotiated and awarded to that offeror.
A contract for architectural or professional engineering services relating toconstruction projects may be negotiated by a public body, for multipleprojects provided (i) the projects require similar experience and expertise,(ii) the nature of the projects is clearly identified in the Request forProposal, and (iii) the contract term is limited to one year or when thecumulative total project fees reach the maximum cost authorized in thisparagraph, whichever occurs first. For state public bodies, such contract,except those awarded for environmental, location, design and inspection workregarding highways and bridges by the Commonwealth TransportationCommissioner may be renewable for four additional one-year terms at theoption of the public body. For local public bodies, such contract may berenewable for four additional one-year terms at the option of the publicbody. Under such contract, (a) the fair and reasonable prices, as negotiated,shall be used in determining the cost of each project performed, (b) exceptthose awarded for environmental, location, design and inspection workregarding highways and bridges by the Commonwealth TransportationCommissioner, the sum of all projects performed in one contract term shallnot exceed $500,000 or, in the case of a state agency, as defined in §2.2-4347, such greater amount as may be determined by the Director of theDepartment of General Services, not to exceed $1 million, except that in anylocality or any authority or sanitation district with a population in excessof 80,000, the sum of all such projects shall not exceed $5 million; and (c)except those awarded for environmental, location, design and inspection workregarding highways and bridges by the Commonwealth TransportationCommissioner or for architectural and engineering services for rail andpublic transportation projects by the Director of the Department of Rail andPublic Transportation, the project fee of any single project shall not exceed$100,000 or, in the case of a state agency, such greater amount as may bedetermined by the Director of the Department of General Services not toexceed $200,000, except that in any locality or any authority or sanitationdistrict with a population in excess of 80,000, such fee shall not exceed $1million. Any unused amounts from the first contract term shall not be carriedforward to the additional term. Competitive negotiations for such contractsmay result in awards to more than one offeror provided (1) the Request forProposal so states and (2) the public body has established procedures fordistributing multiple projects among the selected contractors during thecontract term. For contracts for environmental location, design andinspection work regarding highways and bridges by the CommonwealthTransportation Commissioner, the sum of all projects in one contract termshall not exceed $5 million and such contract may be renewable for twoadditional one-year terms at the option of the Commissioner. Forarchitectural and engineering services for rail and public transportationprojects by the Director of the Department of Rail and Public Transportation,the sum of all projects in one contract term shall not exceed $2 million andsuch contract may be renewable for two additional one-year terms at theoption of the Commissioner.
Multiphase professional services contracts satisfactory and advantageous tothe Department of Transportation for environmental, location, design andinspection work regarding highways and bridges may be negotiated and awardedbased on a fair and reasonable price for the first phase only, whencompletion of the earlier phases is necessary to provide information criticalto the negotiation of a fair and reasonable price for succeeding phases.
Multiphase professional services contracts satisfactory and advantageous to alocal public body for environmental, location, design and inspection workregarding construction of infrastructure projects may be negotiated andawarded based on qualifications at a fair and reasonable price for the firstphase only, when completion of the earlier phases is necessary to provideinformation critical to the negotiation of a fair and reasonable price forsucceeding phases. Prior to the procurement of any such contract, the localpublic body shall state the anticipated intended total scope of the projectand determine in writing that the nature of the work is such that the bestinterests of such public body require awarding the contract.
b. Procurement of other than professional services. Selection shall be madeof two or more offerors deemed to be fully qualified and best suited amongthose submitting proposals, on the basis of the factors involved in theRequest for Proposal, including price if so stated in the Request forProposal. Negotiations shall then be conducted with each of the offerors soselected. Price shall be considered, but need not be the sole determiningfactor. After negotiations have been conducted with each offeror so selected,the public body shall select the offeror which, in its opinion, has made thebest proposal, and shall award the contract to that offeror. When the termsand conditions of multiple awards are so provided in the Request forProposal, awards may be made to more than one offeror. Should the public bodydetermine in writing and in its sole discretion that only one offeror isfully qualified, or that one offeror is clearly more highly qualified thanthe others under consideration, a contract may be negotiated and awarded tothat offeror.
"Competitive sealed bidding" is a method of contractor selection, otherthan for professional services, which includes the following elements:
1. Issuance of a written Invitation to Bid containing or incorporating byreference the specifications and contractual terms and conditions applicableto the procurement. Unless the public body has provided for prequalificationof bidders, the Invitation to Bid shall include a statement of any requisitequalifications of potential contractors. When it is impractical to prepareinitially a purchase description to support an award based on prices, anInvitation to Bid may be issued requesting the submission of unpriced offersto be followed by an Invitation to Bid limited to those bidders whose offershave been qualified under the criteria set forth in the first solicitation.
2. Public notice of the Invitation to Bid at least 10 days prior to the dateset for receipt of bids by posting in a designated public area, orpublication in a newspaper of general circulation, or both. Public notice mayalso be published on the Department of General Services' central electronicprocurement website and other appropriate websites. Effective July 1, 2002,posting by state agencies, departments and institutions on the publicInternet procurement website designated by the Department of General Servicesshall be required. In addition, bids may be solicited directly from potentialcontractors. Any additional solicitations shall include businesses selectedfrom a list made available by the Department of Minority Business Enterprise.
3. Public opening and announcement of all bids received.
4. Evaluation of bids based upon the requirements set forth in theinvitation, which may include special qualifications of potentialcontractors, life-cycle costing, value analysis, and any other criteria suchas inspection, testing, quality, workmanship, delivery, and suitability for aparticular purpose, which are helpful in determining acceptability.
5. Award to the lowest responsive and responsible bidder. When the terms andconditions of multiple awards are so provided in the Invitation to Bid,awards may be made to more than one bidder.
"Construction" means building, altering, repairing, improving ordemolishing any structure, building or highway, and any draining, dredging,excavation, grading or similar work upon real property.
"Construction management contract" means a contract in which a party isretained by the owner to coordinate and administer contracts for constructionservices for the benefit of the owner, and may also include, if provided inthe contract, the furnishing of construction services to the owner.
"Design-build contract" means a contract between a public body and anotherparty in which the party contracting with the public body agrees to bothdesign and build the structure, roadway or other item specified in thecontract.
"Goods" means all material, equipment, supplies, printing, and automateddata processing hardware and software.
"Informality" means a minor defect or variation of a bid or proposal fromthe exact requirements of the Invitation to Bid, or the Request for Proposal,which does not affect the price, quality, quantity or delivery schedule forthe goods, services or construction being procured.
"Multiphase professional services contract" means a contract for theproviding of professional services where the total scope of work of thesecond or subsequent phase of the contract cannot be specified without theresults of the first or prior phase of the contract.
"Nonprofessional services" means any services not specifically identifiedas professional services in the definition of professional services.
"Potential bidder or offeror" for the purposes of §§ 2.2-4360 and 2.2-4364means a person who, at the time a public body negotiates and awards orproposes to award a contract, is engaged in the sale or lease of goods, orthe sale of services, insurance or construction, of the type to be procuredunder the contract, and who at such time is eligible and qualified in allrespects to perform that contract, and who would have been eligible andqualified to submit a bid or proposal had the contract been procured throughcompetitive sealed bidding or competitive negotiation.
"Professional services" means work performed by an independent contractorwithin the scope of the practice of accounting, actuarial services,architecture, land surveying, landscape architecture, law, dentistry,medicine, optometry, pharmacy or professional engineering. "Professionalservices" shall also include the services of an economist procured by theState Corporation Commission.
"Public body" means any legislative, executive or judicial body, agency,office, department, authority, post, commission, committee, institution,board or political subdivision created by law to exercise some sovereignpower or to perform some governmental duty, and empowered by law to undertakethe activities described in this chapter.
"Public contract" means an agreement between a public body and anongovernmental source that is enforceable in a court of law.
"Responsible bidder" or "offeror" means a person who has the capability,in all respects, to perform fully the contract requirements and the moral andbusiness integrity and reliability that will assure good faith performance,and who has been prequalified, if required.
"Responsive bidder" means a person who has submitted a bid that conforms inall material respects to the Invitation to Bid.
"Reverse auctioning" means a procurement method wherein bidders are invitedto bid on specified goods or nonprofessional services through real-timeelectronic bidding, with the award being made to the lowest responsive andresponsible bidder. During the bidding process, bidders' prices are revealedand bidders shall have the opportunity to modify their bid prices for theduration of the time period established for bid opening.
"Services" means any work performed by an independent contractor whereinthe service rendered does not consist primarily of acquisition of equipmentor materials, or the rental of equipment, materials and supplies.
"Sheltered workshop" means a work-oriented rehabilitative facility with acontrolled working environment and individual goals that utilizes workexperience and related services for assisting the handicapped person toprogress toward normal living and a productive vocational status.
(1982, c. 647, § 11-37; 1984, cc. 279, 764; 1985, c. 164; 1987, cc. 176, 218,474; 1989, cc. 309, 323; 1991, c. 559; 1996, cc. 460, 683; 2000, cc. 621,638, 643, 644, 647, 665, 692, 703; 2001, cc. 395, 675, 844; 2003, cc. 185,644, 895, 994, 1006; 2004, c. 458; 2006, c. 206; 2008, c. 371; 2009, cc. 495,562, 564; 2010, c. 440.)
"Affiliate" means an individual or business that controls, is controlledby, or is under common control with another individual or business. A personcontrols an entity if the person owns, directly or indirectly, more than 10percent of the voting securities of the entity. For the purposes of thisdefinition "voting security" means a security that (i) confers upon theholder the right to vote for the election of members of the board ofdirectors or similar governing body of the business or (ii) is convertibleinto, or entitles the holder to receive, upon its exercise, a security thatconfers such a right to vote. A general partnership interest shall be deemedto be a voting security.
"Best value," as predetermined in the solicitation, means the overallcombination of quality, price, and various elements of required services thatin total are optimal relative to a public body's needs.
"Business" means any type of corporation, partnership, limited liabilitycompany, association, or sole proprietorship operated for profit.
"Competitive negotiation" is a method of contractor selection that includesthe following elements:
1. Issuance of a written Request for Proposal indicating in general termsthat which is sought to be procured, specifying the factors that will be usedin evaluating the proposal and containing or incorporating by reference theother applicable contractual terms and conditions, including any uniquecapabilities or qualifications that will be required of the contractor.
2. Public notice of the Request for Proposal at least 10 days prior to thedate set for receipt of proposals by posting in a public area normally usedfor posting of public notices and by publication in a newspaper or newspapersof general circulation in the area in which the contract is to be performedso as to provide reasonable notice to the maximum number of offerors that canbe reasonably anticipated to submit proposals in response to the particularrequest. Public notice may also be published on the Department of GeneralServices' central electronic procurement website and other appropriatewebsites. Effective July 1, 2002, publishing by state agencies, departmentsand institutions on the public Internet procurement website designated by theDepartment of General Services shall be required. In addition, proposals maybe solicited directly from potential contractors.
3. a. Procurement of professional services. The public body shall engage inindividual discussions with two or more offerors deemed fully qualified,responsible and suitable on the basis of initial responses and with emphasison professional competence, to provide the required services. Repetitiveinformal interviews shall be permissible. The offerors shall be encouraged toelaborate on their qualifications and performance data or staff expertisepertinent to the proposed project, as well as alternative concepts. Inaddition, offerors shall be informed of any ranking criteria that will beused by the public body in addition to the review of the professionalcompetence of the offeror. The Request for Proposal shall not, however,request that offerors furnish estimates of man-hours or cost for services. Atthe discussion stage, the public body may discuss nonbinding estimates oftotal project costs, including, but not limited to, life-cycle costing, andwhere appropriate, nonbinding estimates of price for services. Proprietaryinformation from competing offerors shall not be disclosed to the public orto competitors. At the conclusion of discussion, outlined in thissubdivision, on the basis of evaluation factors published in the Request forProposal and all information developed in the selection process to thispoint, the public body shall select in the order of preference two or moreofferors whose professional qualifications and proposed services are deemedmost meritorious. Negotiations shall then be conducted, beginning with theofferor ranked first. If a contract satisfactory and advantageous to thepublic body can be negotiated at a price considered fair and reasonable, theaward shall be made to that offeror. Otherwise, negotiations with the offerorranked first shall be formally terminated and negotiations conducted with theofferor ranked second, and so on until such a contract can be negotiated at afair and reasonable price. Notwithstanding the foregoing, if the terms andconditions for multiple awards are included in the Request for Proposal, apublic body may award contracts to more than one offeror.
Should the public body determine in writing and in its sole discretion thatonly one offeror is fully qualified, or that one offeror is clearly morehighly qualified and suitable than the others under consideration, a contractmay be negotiated and awarded to that offeror.
A contract for architectural or professional engineering services relating toconstruction projects may be negotiated by a public body, for multipleprojects provided (i) the projects require similar experience and expertise,(ii) the nature of the projects is clearly identified in the Request forProposal, and (iii) the contract term is limited to one year or when thecumulative total project fees reach the maximum cost authorized in thisparagraph, whichever occurs first. For state public bodies, such contract,except those awarded for environmental, location, design and inspection workregarding highways and bridges by the Commonwealth TransportationCommissioner may be renewable for four additional one-year terms at theoption of the public body. For local public bodies, such contract may berenewable for four additional one-year terms at the option of the publicbody. Under such contract, (a) the fair and reasonable prices, as negotiated,shall be used in determining the cost of each project performed, (b) exceptthose awarded for environmental, location, design and inspection workregarding highways and bridges by the Commonwealth TransportationCommissioner, the sum of all projects performed in one contract term shallnot exceed $500,000 or, in the case of a state agency, as defined in §2.2-4347, such greater amount as may be determined by the Director of theDepartment of General Services, not to exceed $1 million, except that in anylocality or any authority or sanitation district with a population in excessof 80,000, the sum of all such projects shall not exceed $5 million; and (c)except those awarded for environmental, location, design and inspection workregarding highways and bridges by the Commonwealth TransportationCommissioner or for architectural and engineering services for rail andpublic transportation projects by the Director of the Department of Rail andPublic Transportation, the project fee of any single project shall not exceed$100,000 or, in the case of a state agency, such greater amount as may bedetermined by the Director of the Department of General Services not toexceed $200,000, except that in any locality or any authority or sanitationdistrict with a population in excess of 80,000, such fee shall not exceed $1million. Any unused amounts from the first contract term shall not be carriedforward to the additional term. Competitive negotiations for such contractsmay result in awards to more than one offeror provided (1) the Request forProposal so states and (2) the public body has established procedures fordistributing multiple projects among the selected contractors during thecontract term. For contracts for environmental location, design andinspection work regarding highways and bridges by the CommonwealthTransportation Commissioner, the sum of all projects in one contract termshall not exceed $5 million and such contract may be renewable for twoadditional one-year terms at the option of the Commissioner. Forarchitectural and engineering services for rail and public transportationprojects by the Director of the Department of Rail and Public Transportation,the sum of all projects in one contract term shall not exceed $2 million andsuch contract may be renewable for two additional one-year terms at theoption of the Commissioner.
Multiphase professional services contracts satisfactory and advantageous tothe Department of Transportation for environmental, location, design andinspection work regarding highways and bridges may be negotiated and awardedbased on a fair and reasonable price for the first phase only, whencompletion of the earlier phases is necessary to provide information criticalto the negotiation of a fair and reasonable price for succeeding phases.
Multiphase professional services contracts satisfactory and advantageous to alocal public body for environmental, location, design and inspection workregarding construction of infrastructure projects may be negotiated andawarded based on qualifications at a fair and reasonable price for the firstphase only, when completion of the earlier phases is necessary to provideinformation critical to the negotiation of a fair and reasonable price forsucceeding phases. Prior to the procurement of any such contract, the localpublic body shall state the anticipated intended total scope of the projectand determine in writing that the nature of the work is such that the bestinterests of such public body require awarding the contract.
b. Procurement of other than professional services. Selection shall be madeof two or more offerors deemed to be fully qualified and best suited amongthose submitting proposals, on the basis of the factors involved in theRequest for Proposal, including price if so stated in the Request forProposal. Negotiations shall then be conducted with each of the offerors soselected. Price shall be considered, but need not be the sole determiningfactor. After negotiations have been conducted with each offeror so selected,the public body shall select the offeror which, in its opinion, has made thebest proposal, and shall award the contract to that offeror. When the termsand conditions of multiple awards are so provided in the Request forProposal, awards may be made to more than one offeror. Should the public bodydetermine in writing and in its sole discretion that only one offeror isfully qualified, or that one offeror is clearly more highly qualified thanthe others under consideration, a contract may be negotiated and awarded tothat offeror.
"Competitive sealed bidding" is a method of contractor selection, otherthan for professional services, which includes the following elements:
1. Issuance of a written Invitation to Bid containing or incorporating byreference the specifications and contractual terms and conditions applicableto the procurement. Unless the public body has provided for prequalificationof bidders, the Invitation to Bid shall include a statement of any requisitequalifications of potential contractors. When it is impractical to prepareinitially a purchase description to support an award based on prices, anInvitation to Bid may be issued requesting the submission of unpriced offersto be followed by an Invitation to Bid limited to those bidders whose offershave been qualified under the criteria set forth in the first solicitation.
2. Public notice of the Invitation to Bid at least 10 days prior to the dateset for receipt of bids by posting in a designated public area, orpublication in a newspaper of general circulation, or both. Public notice mayalso be published on the Department of General Services' central electronicprocurement website and other appropriate websites. Effective July 1, 2002,posting by state agencies, departments and institutions on the publicInternet procurement website designated by the Department of General Servicesshall be required. In addition, bids may be solicited directly from potentialcontractors. Any additional solicitations shall include businesses selectedfrom a list made available by the Department of Minority Business Enterprise.
3. Public opening and announcement of all bids received.
4. Evaluation of bids based upon the requirements set forth in theinvitation, which may include special qualifications of potentialcontractors, life-cycle costing, value analysis, and any other criteria suchas inspection, testing, quality, workmanship, delivery, and suitability for aparticular purpose, which are helpful in determining acceptability.
5. Award to the lowest responsive and responsible bidder. When the terms andconditions of multiple awards are so provided in the Invitation to Bid,awards may be made to more than one bidder.
"Construction" means building, altering, repairing, improving ordemolishing any structure, building or highway, and any draining, dredging,excavation, grading or similar work upon real property.
"Construction management contract" means a contract in which a party isretained by the owner to coordinate and administer contracts for constructionservices for the benefit of the owner, and may also include, if provided inthe contract, the furnishing of construction services to the owner.
"Design-build contract" means a contract between a public body and anotherparty in which the party contracting with the public body agrees to bothdesign and build the structure, roadway or other item specified in thecontract.
"Goods" means all material, equipment, supplies, printing, and automateddata processing hardware and software.
"Informality" means a minor defect or variation of a bid or proposal fromthe exact requirements of the Invitation to Bid, or the Request for Proposal,which does not affect the price, quality, quantity or delivery schedule forthe goods, services or construction being procured.
"Multiphase professional services contract" means a contract for theproviding of professional services where the total scope of work of thesecond or subsequent phase of the contract cannot be specified without theresults of the first or prior phase of the contract.
"Nonprofessional services" means any services not specifically identifiedas professional services in the definition of professional services.
"Potential bidder or offeror" for the purposes of §§ 2.2-4360 and 2.2-4364means a person who, at the time a public body negotiates and awards orproposes to award a contract, is engaged in the sale or lease of goods, orthe sale of services, insurance or construction, of the type to be procuredunder the contract, and who at such time is eligible and qualified in allrespects to perform that contract, and who would have been eligible andqualified to submit a bid or proposal had the contract been procured throughcompetitive sealed bidding or competitive negotiation.
"Professional services" means work performed by an independent contractorwithin the scope of the practice of accounting, actuarial services,architecture, land surveying, landscape architecture, law, dentistry,medicine, optometry, pharmacy or professional engineering. "Professionalservices" shall also include the services of an economist procured by theState Corporation Commission.
"Public body" means any legislative, executive or judicial body, agency,office, department, authority, post, commission, committee, institution,board or political subdivision created by law to exercise some sovereignpower or to perform some governmental duty, and empowered by law to undertakethe activities described in this chapter.
"Public contract" means an agreement between a public body and anongovernmental source that is enforceable in a court of law.
"Responsible bidder" or "offeror" means a person who has the capability,in all respects, to perform fully the contract requirements and the moral andbusiness integrity and reliability that will assure good faith performance,and who has been prequalified, if required.
"Responsive bidder" means a person who has submitted a bid that conforms inall material respects to the Invitation to Bid.
"Reverse auctioning" means a procurement method wherein bidders are invitedto bid on specified goods or nonprofessional services through real-timeelectronic bidding, with the award being made to the lowest responsive andresponsible bidder. During the bidding process, bidders' prices are revealedand bidders shall have the opportunity to modify their bid prices for theduration of the time period established for bid opening.
"Services" means any work performed by an independent contractor whereinthe service rendered does not consist primarily of acquisition of equipmentor materials, or the rental of equipment, materials and supplies.
"Sheltered workshop" means a work-oriented rehabilitative facility with acontrolled working environment and individual goals that utilizes workexperience and related services for assisting the handicapped person toprogress toward normal living and a productive vocational status.
(1982, c. 647, § 11-37; 1984, cc. 279, 764; 1985, c. 164; 1987, cc. 176, 218,474; 1989, cc. 309, 323; 1991, c. 559; 1996, cc. 460, 683; 2000, cc. 621,638, 643, 644, 647, 665, 692, 703; 2001, cc. 395, 675, 844; 2003, cc. 185,644, 895, 994, 1006; 2004, c. 458; 2006, c. 206; 2008, c. 371; 2009, cc. 495,562, 564; 2010, c. 440.)
"Affiliate" means an individual or business that controls, is controlledby, or is under common control with another individual or business. A personcontrols an entity if the person owns, directly or indirectly, more than 10percent of the voting securities of the entity. For the purposes of thisdefinition "voting security" means a security that (i) confers upon theholder the right to vote for the election of members of the board ofdirectors or similar governing body of the business or (ii) is convertibleinto, or entitles the holder to receive, upon its exercise, a security thatconfers such a right to vote. A general partnership interest shall be deemedto be a voting security.
"Best value," as predetermined in the solicitation, means the overallcombination of quality, price, and various elements of required services thatin total are optimal relative to a public body's needs.
"Business" means any type of corporation, partnership, limited liabilitycompany, association, or sole proprietorship operated for profit.
"Competitive negotiation" is a method of contractor selection that includesthe following elements:
1. Issuance of a written Request for Proposal indicating in general termsthat which is sought to be procured, specifying the factors that will be usedin evaluating the proposal and containing or incorporating by reference theother applicable contractual terms and conditions, including any uniquecapabilities or qualifications that will be required of the contractor.
2. Public notice of the Request for Proposal at least 10 days prior to thedate set for receipt of proposals by posting in a public area normally usedfor posting of public notices and by publication in a newspaper or newspapersof general circulation in the area in which the contract is to be performedso as to provide reasonable notice to the maximum number of offerors that canbe reasonably anticipated to submit proposals in response to the particularrequest. Public notice may also be published on the Department of GeneralServices' central electronic procurement website and other appropriatewebsites. Effective July 1, 2002, publishing by state agencies, departmentsand institutions on the public Internet procurement website designated by theDepartment of General Services shall be required. In addition, proposals maybe solicited directly from potential contractors.
3. a. Procurement of professional services. The public body shall engage inindividual discussions with two or more offerors deemed fully qualified,responsible and suitable on the basis of initial responses and with emphasison professional competence, to provide the required services. Repetitiveinformal interviews shall be permissible. The offerors shall be encouraged toelaborate on their qualifications and performance data or staff expertisepertinent to the proposed project, as well as alternative concepts. Inaddition, offerors shall be informed of any ranking criteria that will beused by the public body in addition to the review of the professionalcompetence of the offeror. The Request for Proposal shall not, however,request that offerors furnish estimates of man-hours or cost for services. Atthe discussion stage, the public body may discuss nonbinding estimates oftotal project costs, including, but not limited to, life-cycle costing, andwhere appropriate, nonbinding estimates of price for services. Proprietaryinformation from competing offerors shall not be disclosed to the public orto competitors. At the conclusion of discussion, outlined in thissubdivision, on the basis of evaluation factors published in the Request forProposal and all information developed in the selection process to thispoint, the public body shall select in the order of preference two or moreofferors whose professional qualifications and proposed services are deemedmost meritorious. Negotiations shall then be conducted, beginning with theofferor ranked first. If a contract satisfactory and advantageous to thepublic body can be negotiated at a price considered fair and reasonable, theaward shall be made to that offeror. Otherwise, negotiations with the offerorranked first shall be formally terminated and negotiations conducted with theofferor ranked second, and so on until such a contract can be negotiated at afair and reasonable price. Notwithstanding the foregoing, if the terms andconditions for multiple awards are included in the Request for Proposal, apublic body may award contracts to more than one offeror.
Should the public body determine in writing and in its sole discretion thatonly one offeror is fully qualified, or that one offeror is clearly morehighly qualified and suitable than the others under consideration, a contractmay be negotiated and awarded to that offeror.
A contract for architectural or professional engineering services relating toconstruction projects may be negotiated by a public body, for multipleprojects provided (i) the projects require similar experience and expertise,(ii) the nature of the projects is clearly identified in the Request forProposal, and (iii) the contract term is limited to one year or when thecumulative total project fees reach the maximum cost authorized in thisparagraph, whichever occurs first. For state public bodies, such contract,except those awarded for environmental, location, design and inspection workregarding highways and bridges by the Commonwealth TransportationCommissioner may be renewable for four additional one-year terms at theoption of the public body. For local public bodies, such contract may berenewable for four additional one-year terms at the option of the publicbody. Under such contract, (a) the fair and reasonable prices, as negotiated,shall be used in determining the cost of each project performed, (b) exceptthose awarded for environmental, location, design and inspection workregarding highways and bridges by the Commonwealth TransportationCommissioner, the sum of all projects performed in one contract term shallnot exceed $500,000 or, in the case of a state agency, as defined in §2.2-4347, such greater amount as may be determined by the Director of theDepartment of General Services, not to exceed $1 million, except that in anylocality or any authority or sanitation district with a population in excessof 80,000, the sum of all such projects shall not exceed $5 million; and (c)except those awarded for environmental, location, design and inspection workregarding highways and bridges by the Commonwealth TransportationCommissioner or for architectural and engineering services for rail andpublic transportation projects by the Director of the Department of Rail andPublic Transportation, the project fee of any single project shall not exceed$100,000 or, in the case of a state agency, such greater amount as may bedetermined by the Director of the Department of General Services not toexceed $200,000, except that in any locality or any authority or sanitationdistrict with a population in excess of 80,000, such fee shall not exceed $1million. Any unused amounts from the first contract term shall not be carriedforward to the additional term. Competitive negotiations for such contractsmay result in awards to more than one offeror provided (1) the Request forProposal so states and (2) the public body has established procedures fordistributing multiple projects among the selected contractors during thecontract term. For contracts for environmental location, design andinspection work regarding highways and bridges by the CommonwealthTransportation Commissioner, the sum of all projects in one contract termshall not exceed $5 million and such contract may be renewable for twoadditional one-year terms at the option of the Commissioner. Forarchitectural and engineering services for rail and public transportationprojects by the Director of the Department of Rail and Public Transportation,the sum of all projects in one contract term shall not exceed $2 million andsuch contract may be renewable for two additional one-year terms at theoption of the Commissioner.
Multiphase professional services contracts satisfactory and advantageous tothe Department of Transportation for environmental, location, design andinspection work regarding highways and bridges may be negotiated and awardedbased on a fair and reasonable price for the first phase only, whencompletion of the earlier phases is necessary to provide information criticalto the negotiation of a fair and reasonable price for succeeding phases.
Multiphase professional services contracts satisfactory and advantageous to alocal public body for environmental, location, design and inspection workregarding construction of infrastructure projects may be negotiated andawarded based on qualifications at a fair and reasonable price for the firstphase only, when completion of the earlier phases is necessary to provideinformation critical to the negotiation of a fair and reasonable price forsucceeding phases. Prior to the procurement of any such contract, the localpublic body shall state the anticipated intended total scope of the projectand determine in writing that the nature of the work is such that the bestinterests of such public body require awarding the contract.
b. Procurement of other than professional services. Selection shall be madeof two or more offerors deemed to be fully qualified and best suited amongthose submitting proposals, on the basis of the factors involved in theRequest for Proposal, including price if so stated in the Request forProposal. Negotiations shall then be conducted with each of the offerors soselected. Price shall be considered, but need not be the sole determiningfactor. After negotiations have been conducted with each offeror so selected,the public body shall select the offeror which, in its opinion, has made thebest proposal, and shall award the contract to that offeror. When the termsand conditions of multiple awards are so provided in the Request forProposal, awards may be made to more than one offeror. Should the public bodydetermine in writing and in its sole discretion that only one offeror isfully qualified, or that one offeror is clearly more highly qualified thanthe others under consideration, a contract may be negotiated and awarded tothat offeror.
"Competitive sealed bidding" is a method of contractor selection, otherthan for professional services, which includes the following elements:
1. Issuance of a written Invitation to Bid containing or incorporating byreference the specifications and contractual terms and conditions applicableto the procurement. Unless the public body has provided for prequalificationof bidders, the Invitation to Bid shall include a statement of any requisitequalifications of potential contractors. When it is impractical to prepareinitially a purchase description to support an award based on prices, anInvitation to Bid may be issued requesting the submission of unpriced offersto be followed by an Invitation to Bid limited to those bidders whose offershave been qualified under the criteria set forth in the first solicitation.
2. Public notice of the Invitation to Bid at least 10 days prior to the dateset for receipt of bids by posting in a designated public area, orpublication in a newspaper of general circulation, or both. Public notice mayalso be published on the Department of General Services' central electronicprocurement website and other appropriate websites. Effective July 1, 2002,posting by state agencies, departments and institutions on the publicInternet procurement website designated by the Department of General Servicesshall be required. In addition, bids may be solicited directly from potentialcontractors. Any additional solicitations shall include businesses selectedfrom a list made available by the Department of Minority Business Enterprise.
3. Public opening and announcement of all bids received.
4. Evaluation of bids based upon the requirements set forth in theinvitation, which may include special qualifications of potentialcontractors, life-cycle costing, value analysis, and any other criteria suchas inspection, testing, quality, workmanship, delivery, and suitability for aparticular purpose, which are helpful in determining acceptability.
5. Award to the lowest responsive and responsible bidder. When the terms andconditions of multiple awards are so provided in the Invitation to Bid,awards may be made to more than one bidder.
"Construction" means building, altering, repairing, improving ordemolishing any structure, building or highway, and any draining, dredging,excavation, grading or similar work upon real property.
"Construction management contract" means a contract in which a party isretained by the owner to coordinate and administer contracts for constructionservices for the benefit of the owner, and may also include, if provided inthe contract, the furnishing of construction services to the owner.
"Design-build contract" means a contract between a public body and anotherparty in which the party contracting with the public body agrees to bothdesign and build the structure, roadway or other item specified in thecontract.
"Goods" means all material, equipment, supplies, printing, and automateddata processing hardware and software.
"Informality" means a minor defect or variation of a bid or proposal fromthe exact requirements of the Invitation to Bid, or the Request for Proposal,which does not affect the price, quality, quantity or delivery schedule forthe goods, services or construction being procured.
"Multiphase professional services contract" means a contract for theproviding of professional services where the total scope of work of thesecond or subsequent phase of the contract cannot be specified without theresults of the first or prior phase of the contract.
"Nonprofessional services" means any services not specifically identifiedas professional services in the definition of professional services.
"Potential bidder or offeror" for the purposes of §§ 2.2-4360 and 2.2-4364means a person who, at the time a public body negotiates and awards orproposes to award a contract, is engaged in the sale or lease of goods, orthe sale of services, insurance or construction, of the type to be procuredunder the contract, and who at such time is eligible and qualified in allrespects to perform that contract, and who would have been eligible andqualified to submit a bid or proposal had the contract been procured throughcompetitive sealed bidding or competitive negotiation.
"Professional services" means work performed by an independent contractorwithin the scope of the practice of accounting, actuarial services,architecture, land surveying, landscape architecture, law, dentistry,medicine, optometry, pharmacy or professional engineering. "Professionalservices" shall also include the services of an economist procured by theState Corporation Commission.
"Public body" means any legislative, executive or judicial body, agency,office, department, authority, post, commission, committee, institution,board or political subdivision created by law to exercise some sovereignpower or to perform some governmental duty, and empowered by law to undertakethe activities described in this chapter.
"Public contract" means an agreement between a public body and anongovernmental source that is enforceable in a court of law.
"Responsible bidder" or "offeror" means a person who has the capability,in all respects, to perform fully the contract requirements and the moral andbusiness integrity and reliability that will assure good faith performance,and who has been prequalified, if required.
"Responsive bidder" means a person who has submitted a bid that conforms inall material respects to the Invitation to Bid.
"Reverse auctioning" means a procurement method wherein bidders are invitedto bid on specified goods or nonprofessional services through real-timeelectronic bidding, with the award being made to the lowest responsive andresponsible bidder. During the bidding process, bidders' prices are revealedand bidders shall have the opportunity to modify their bid prices for theduration of the time period established for bid opening.
"Services" means any work performed by an independent contractor whereinthe service rendered does not consist primarily of acquisition of equipmentor materials, or the rental of equipment, materials and supplies.
"Sheltered workshop" means a work-oriented rehabilitative facility with acontrolled working environment and individual goals that utilizes workexperience and related services for assisting the handicapped person toprogress toward normal living and a productive vocational status.
(1982, c. 647, § 11-37; 1984, cc. 279, 764; 1985, c. 164; 1987, cc. 176, 218,474; 1989, cc. 309, 323; 1991, c. 559; 1996, cc. 460, 683; 2000, cc. 621,638, 643, 644, 647, 665, 692, 703; 2001, cc. 395, 675, 844; 2003, cc. 185,644, 895, 994, 1006; 2004, c. 458; 2006, c. 206; 2008, c. 371; 2009, cc. 495,562, 564; 2010, c. 440.)
