Certain provisions of the Act apply to all local government
purchases. The County is not free to amend those provisions, which
are summarized here for reference:
A.
State-aid projects. Competitive sealed bidding or competitive negotiation
is required for projects in which over $50,000 in state funds are
expended. [Code of Virginia, § 2.2-4305]
B.
Brand names. Unless an invitation to bid expressly allows only a
certain brand, a bidder may specify alternatives to the brand names
mentioned in the invitation. The County can accept any brand that
it deems to be equivalent to the specified brand. The County may also
limit bidders to a single brand, if it expressly states such a limitation
in the invitation to bid. [Code of Virginia, § 2.2-4315]
C.
Prequalification. Prequalification involves bidding in which only
selected, or "prequalified," bidders are allowed to bid on a project.
The statute governs the method of prequalification. Please consult
the County Attorney prior to undertaking prequalification. [Code of
Virginia, § 2.2-4317]
D.
Withdrawal of erroneous bids. This section allows bidders for a construction
contract to withdraw bids that reflect clerical errors. The statute
sets forth two different withdrawal procedures. The County follows
the simpler method under Code of Virginia, § 2.2-4330(B)(1),
which requires that bidders give notice of withdrawal within two business
days of the bid opening. The County has five business days to issue
a decision on a request to withdraw a bid. [Code of Virginia, § 2.2-4330]
E.
Retainage. Retainage on construction contracts cannot exceed 5%.
Additionally, the County's bid documents must include an option
by which the successful bidder can elect to have the retainage placed
into an escrow account for contracts which 1) are greater than $200,000,
and 2) relate to the construction of highways, roads, streets, bridges,
parking lots, demolition, clearing, grading, excavating, paving, pile
driving, miscellaneous drainage structures, or the installation of
water, gas, sewer lines or pumping stations. [Code of Virginia, §§ 2.2-4333
and 2.2-4334]
F.
Damages for delay by governing body. The County cannot require contractors
to waive any right to damages caused by the County's delay in
performance. [Code of Virginia, § 2.2-4335]
G.
Professional services. Professional services (except for legal services)
must be procured through competitive negotiation where the cost of
the professional service is expected to exceed $80,000 in the aggregate.
[Code of Virginia, § 2.2-4343(A)(12)]
I.
Ethics in public contracting. These sections prohibit kickbacks,
conflicts of interest, gifts from bidders, and the purchase of building
materials from architects or engineers rendering design services.
[Code of Virginia, §§ 2.2-4367 through 2.2-4377]
J.
Public inspection of certain records. With a few exceptions, most
documents, contracts, and other records related to procurement transactions
are open for public inspection in accordance with the Virginia Freedom
of Information Act.[2] [Code of Virginia, § 2.2-4342]
[2]
Editor's Note: See Code of Virginia, § 2.2-3700
et seq.
A.
Every contract must include the following provisions:
(1)
Compliance with immigration law. The contractor does not, and shall
not during the performance of the contract for goods and services
in the commonwealth, knowingly employ an unauthorized alien as defined
in the Federal Immigration Reform and Control Act of 1986.[1]
[1]
Editor's Note: See VA Code Ann. § 40.1-11.1
et seq.
(2)
Compliance with state law; foreign and domestic businesses authorized
to transact business in the commonwealth.
(a)
Any contractor organized as a stock or nonstock corporation,
limited liability company, business trust, or limited partnership
or registered as a registered limited liability partnership shall
be authorized to transact business in the commonwealth as a domestic
or foreign business entity if so required by Code of Virginia, Title
13.1, or Code of Virginia, Title 50, or as otherwise required by law.
(b)
Any contractor described in Subsection A(2)(a) shall not allow its existence to lapse or its certificate of authority or registration to transact business in the commonwealth, if so required under Code of Virginia, Title 13.1 or Code of Virginia, Title 50, to be revoked or cancelled at any time during the term of the contract.
B.
Every contract of $10,000 or more must include the following provisions:
(1)
Employment discrimination prohibited.
(a)
During the performance of this contract, the contractor shall
not discriminate against any employee or applicant for employment
because of race, religion, color, sex, national origin, age, disability,
or other basis prohibited by state law relating to discrimination
in employment, except where there is a bona fide occupational qualification
reasonably necessary to the normal operation of the contractor. The
contractor agrees to post in conspicuous places, available to employees
and applicants for employment, notices setting forth the provisions
of this nondiscrimination clause. The contractor, in all solicitations
or advertisements for employees placed by or on behalf of the contractor,
will state that the contractor is an equal opportunity employer.
(b)
The contractor will include the foregoing clauses in every subcontract
or purchase order of over $10,000, so that the provisions will be
binding upon each subcontractor or vendor.
(c)
Notices, advertisements and solicitations placed in accordance
with federal law, rule or regulation shall be deemed sufficient for
the purpose of meeting the requirements of this section.
(2)
Drug-free workplace.
(a)
During the performance of this contract, the contractor shall:
[1]
Provide a drug-free workplace for the contractor's employees;
[2]
Post in conspicuous places, available to employees and applicants
for employment, a statement notifying employees that the unlawful
manufacture, sale, distribution, dispensation, possession, or use
of a controlled substance or marijuana is prohibited in the contractor's
workplace and specifying the actions that will be taken against employees
for violations of such prohibition;
[3]
State in all solicitations or advertisements for employees placed
by or on behalf of the contractor that the contractor maintains a
drug-free workplace; and
[4]
Include the provisions of the foregoing clauses in every subcontract
or purchase order of over $10,000, so that the provisions will be
binding upon each subcontractor or vendor.
(3)
For the purposes of this section, "drug-free workplace" means a site
for the performance of work done in connection with a specific contract
awarded to a contractor in accordance with this policy, the employees
of whom are prohibited from engaging in the unlawful manufacture,
sale, distribution, dispensation, possession or use of any controlled
substance or marijuana during the performance of the contract.
C.
Additional contract provisions may be required by federal law in
contracts funded either in part or in whole with federal funds. Consultation
with the County Attorney is recommended prior to issuing a solicitation
for any such procurement.
Pre-bid conferences with prospective bidders and offerors are
desirable after draft specifications are prepared. Such conferences
help detect unclear provisions and widen competition by removing unnecessarily
restrictive language. Pre-bid conferences may be scheduled by the
Purchasing Agent, attended by a department representative and, if
requested, the County Attorney. [Code of Virginia, § 2.2-4316]
In the case of a tie bid, preference shall be given to goods,
services and construction produced in the County or provided by persons,
firms or corporations whose principal place of business is in the
County, if such a choice is available. Otherwise, the tie may be decided
by lot unless the provisions of the Code of Virginia, § 2.2-4324,
apply. This section applies only to bids submitted pursuant to an
invitation to bid. [Code of Virginia, § 2.2-4328]
Public contracts may be awarded on a fixed price or cost reimbursement
basis, or on any other basis that is not prohibited. However, no public
contract shall be awarded on the basis of a cost plus a percentage
of cost except in case of an emergency affecting the public health,
safety, or welfare. [Code of Virginia, § 2.2-4331]
Blanket purchase orders may be used for repeat purchases of
goods or services from the same vendor to promote competition and
cost effectiveness. Rather than issue a purchase order for each purchase,
one purchase order may be issued for a time period of up to one year.
The Purchasing Agent may waive informalities. "Informality"
means a minor defect or variation from the exact requirements of an
invitation to bid, request for proposal, this chapter, or the Act
that does not affect the price, quality, quantity, or delivery schedule
for the goods, services, or construction being procured. [Code of
Virginia, §§ 2.2-4301 and 2.2-4319]
An invitation to bid, a request for proposal, any other solicitation
or any and all bids or proposals may be canceled or rejected. The
reasons for cancellation or rejection shall be made part of the contract
file. [Code of Virginia, § 2.2-4319]
Unless otherwise provided by law, a contract for goods, services
or insurance may be entered into for any period of time deemed to
be in the best interests of the County, provided that the term of
the contract and conditions of renewal or extension, if any, are included
in the solicitation and funds are available for the first fiscal period
at the time of contracting. Payment and performance obligations for
succeeding fiscal periods shall be subject to the availability and
appropriation of funds.
All contracts awarded through competitive procurement require
the signature of the Purchasing Agent or his or her designee. The
Purchasing Agent may delegate authority to sign all other contracts
for goods and services to a department head or manager.
No official, elected or appointed, or any employee shall purchase
or contract for any goods, services, insurance or construction within
the purview of this chapter other than by and through the Purchasing
Agent, and any purchase order or contract made contrary to the provisions
hereof is not approved, and the County shall not be bound thereby.
A.
A contract may include provisions for modification of its terms during
performance, but no fixed price contract may be increased by more
than 25% of the amount of the contract or $50,000, whichever is greater,
without the advance written approval of the Board. However, no such
modification shall increase the price of the contract beyond any project
budget set by the Board. In no event may the amount of any contract,
without adequate consideration, be increased for any purpose, including,
but not limited to, relief of an offeror from the consequences of
an error in its bid or offer.
B.
The term of an existing contract for services may be extended to
allow completion of any work undertaken but not completed during the
original term of the contract.
C.
Contract modifications that fail to comply with this section are
voidable at the discretion of the Board, and the unauthorized approval
of a modification cannot be the basis of a contractual claim against
the County. [Code of Virginia, §§ 2.2-4309)
The County shall not discriminate on any basis prohibited by
law in soliciting and awarding contracts.
