· Web viewState Law References: Similar provisions, Code of Virginia, 2.2-4304. Sec. 74-45. Conditions for use of competitive sealed bidding. All public contracts with nongovernmental

Chapter 74

PUBLIC PROCUREMENT*__________ * Cross References: Any ordinance or resolution granting a franchise, right, privilege, license or permit to use any public property or facility or any other property owned or controlled by the city saved from repeal, § 1-4(5); administration, ch. 2; department of procurement services, § 2-631 et seq.

State Law References: Virginia Public Procurement Act, Code of Virginia, § 2.2-4300 et seq.__________

Article I. In GeneralSec. 74-1. Purpose.Sec. 74-2. Applicability.Sec. 74-3. Exemptions.Sec. 74-4. Definitions.Sec. 74-5. Public inspection of certain records.Sec. 74-6. Financing arrangements.Sec. 74-7. Unauthorized purchases.Sec. 74-8. Purchasing of recycled materials.Sec. 74-9. Prompt payment of bills.Secs. 74-10--74-40. Reserved.

Article II. Contract Formation and Methods of Source SelectionSec. 74-41. Small purchases.Sec. 74-42. Only practical source procurement.Sec. 74-43. Emergency purchases.Sec. 74-44. Cooperative procurement; conditions for use.Sec. 74-45. Conditions for use of competitive sealed bidding.Sec. 74-46. Competitive sealed bidding or competitive negotiations on state-aid projects.Sec. 74-47. Permitted contracts with certain religious organizations; purpose; limitations.Sec. 74-48. Design-build or construction management contracts; eligibility requirements; award of contract; records to be kept.Sec. 74-49. Prequalification of nonconstruction bidders and offerors.Sec. 74-50. Prequalification of construction bidders.Sec. 74-51. Notice of invitation to bid.Sec. 74-52. Use of brand names.Sec. 74-53. Comments on specifications.Sec. 74-54. Bid bonds on construction contracts.Sec. 74-55. Bonds for other than construction contracts.Sec. 74-56. Bid opening.Sec. 74-57. Withdrawal of bid due to error.Sec. 74-58. Bid evaluation under competitive sealed bidding.Sec. 74-59. Bid award under competitive sealed bidding.Sec. 74-60. Tie bids.Sec. 74-61. Contract pricing arrangements.Sec. 74-62. Multiterm contracts.Sec. 74-63. Contract modification or supplement.Sec. 74-64. Retainage on construction contracts.Sec. 74-65. Deposit of certain retained funds on certain contracts; penalty for failure to timely complete.Sec. 74-66. Public construction contract provisions barring damages for unreasonable delays declared void.Sec. 74-67. Performance and payment bonds.Sec. 74-68. Action on performance bond.Sec. 74-69. Actions on payment bond.Sec. 74-70. Alternative forms of security.Sec. 74-71. Competitive negotiation for nonprofessional services.Sec. 74-72. Contracting for professional services by competitive negotiation.Sec. 74-73. Consideration of accessibility of contractors.

Sec. 74-74. Employment discrimination by contractor prohibited; required contract provisions.Sec. 74-75. Obstruction of practices required under chapter.Sec. 74-76. Cancellation of solicitations and rejection of bids or proposals; waiver of informalities.Secs. 74-77--74-110. Reserved.

Article III. Disposal of Surplus PropertySec. 74-111. Reports of unused property.Sec. 74-112. Transfer of stock to other using agencies.Sec. 74-113. Sale or exchange.Sec. 74-114. Donation.Sec. 74-115. Special restrictions.Secs. 74-116--74-150. Reserved.

Article IV. DebarmentSec. 74-151. Authority to debar or suspend.Sec. 74-152. Decision to debar or suspend.Sec. 74-153. Notice of decision.Sec. 74-154. Finality of decision.Secs. 74-155--74-185. Reserved.

Article V. Appeals and Remedies for ProtestsSec. 74-186. Ineligibility of bidder, offeror or contractor.Sec. 74-187. Appeal of denial of withdrawal of bid.Sec. 74-188. Determination of nonresponsibility.Sec. 74-189. Protest of award or decision to award.Sec. 74-190. Effect of appeal upon contract.Sec. 74-191. Stay of award during protest.Sec. 74-192. Contractual disputes.Sec. 74-193. Administrative appeals procedure.Sec. 74-194. Legal actions.Sec. 74-195. Alternative dispute resolution.Secs. 74-196--74-230. Reserved.

Article VI. Development Assistance to Minority Business Enterprises and Emerging Small BusinessesSec. 74-231. Purpose.Sec. 74-232. Authority to establish programs to facilitate development and expand participation in public procurement.Sec. 74-233. Sheltered market program.Secs. 74-234--74-265. Reserved.

Article VII. Utilization of Minority Business Enterprises and Emerging Small Businesses

Division 1. GenerallySec. 74-266. Purpose.Sec. 74-267. Covered contracts.Sec. 74-268. Applicability to non-city recipients of city funds.Sec. 74-269. Discrimination prohibited.Sec. 74-270. Official goals for contracting with minority business enterprises and emerging small businesses.Sec. 74-271. Rules and regulations.Secs. 74-272--74-300. Reserved.

Division 2. Enforcement and AccountabilitySec. 74-301. Debarment of contractors for improper activities.Sec. 74-302. Racial discrimination in construction contract bonding and insurance.Sec. 74-303. Chief administrative officer to enforce article and to make reports to city council.Sec. 74-304. Renewal of existing contracts.Sec. 74-305. Chief administrative officer to provide sufficient staff.Secs. 74-306--74-340. Reserved.

Article VIII. Ethics in Public Contracting

Sec. 74-341. Purpose.Sec. 74-342. Definitions.Sec. 74-343. Proscribed participation by public employees in procurement transaction.Sec. 74-344. Solicitation or acceptance of gifts.Sec. 74-345. Disclosure of subsequent employment.Sec. 74-346. Gifts by bidders, offerors, contractors or subcontractors.Sec. 74-347. Kickbacks.Sec. 74-348. Participation in bid preparation; limitation on submitting bid for same procurement.Sec. 74-349. Purchase of building materials, etc., from architect or engineer prohibited.Sec. 74-350. Certification of compliance required; penalty for false statements.Sec. 74-351. Misrepresentations prohibited.Sec. 74-352. Penalty for violation.Secs. 74-353--74-400. Reserved.

Article IX. Public-Private PartnershipsSec. 74-401. Purpose; definitions; application.Sec. 74-402. Proposal submission--Generally.Sec. 74-403. Proposal submission--Solicited proposals.Sec. 74-404. Proposal submission--Unsolicited proposals.Sec. 74-405. Proposal submission--Format of proposals.Sec. 74-406. Proposal review--Conceptual phase.Sec. 74-407. Proposal review--Evaluation and selection.Sec. 74-408. Comprehensive agreement.

ARTICLE I.

IN GENERAL

Sec. 74-1. Purpose.

The purpose of this chapter is to:

(1) Increase public confidence in purchasing by this city;

(2) Encourage competition in public purchasing among vendors or contractors;

(3) Administer fairly and equitably purchasing policies among bidders; and

(4) Obtain high quality goods and services at the lowest possible price within the specified time. (Code 1993, § 22.1-1)

Sec. 74-2. Applicability.

(a) This chapter applies to contracts for the procurement of goods, services, insurance and construction entered into by the city involving every expenditure for public purchasing from nongovernmental sources.

(b) When the procurement involves the expenditure of federal assistance or contract funds, the procurement shall be conducted in accordance with any applicable mandatory federal laws and/or regulations that are not reflected in this chapter. Nothing in this chapter shall prevent any public agency from complying with the terms and conditions of any grant, gift or bequest which are otherwise consistent with law. (Code 1993, § 22.1-2)

Sec. 74-3. Exemptions.

(a) The requirements of this chapter shall not apply to the following:

(1) Purchases by the department of social services for the acquisition of motor vehicles for sale or transfer to temporary assistance to needy families (TANF) recipients.

(2) Procurement transactions involving the expenditure of federal assistance or contract funds, the receipt of which is conditioned upon compliance with mandatory requirements in federal laws or regulations not in conformance with this chapter, where the director has determined in a writing, which states the specific section of this chapter in conflict with the conditions of the grant or contract, that acceptance of the grant or contract funds under the applicable conditions is in the public interest and where the city complies with such federal requirements.

(3) The purchase of goods or services that are produced or performed by:

a. Persons, or in schools or workshops, under the supervision of the state department for the blind and vision impaired; or

b. Nonprofit sheltered workshops or other nonprofit organizations that offer transitional or supported employment services serving the handicapped.

(4) The purchase of legal services or expert witnesses or other services associated with litigation or regulatory proceedings, including the printing of legal briefs.

(5) The purchase of insurance or electric utility services if purchased through an association of which the city is a member if the association was formed and is maintained for the purpose of promoting the interest and welfare of and developing close relationships with public bodies similar to the city, provided such association has procured the insurance or electric utility services by use of competitive principles and provided that the director has made a determination in advance after reasonable notice to the public and set forth in writing that competitive sealed bidding and competitive negotiation are not fiscally advantageous to the public and the basis for this determination.

(6) Any purchase for the administration of public assistance and social services programs as defined in Code of Virginia, § 63.2-100; any purchase for a community services board as defined in Code of Virginia, § 37.1-1; and any purchase of services under (i) the comprehensive services act for at-risk youth and families, Code of Virginia, §§ 2.2-5200--2.2-5214, or (ii) the Virginia Juvenile Community Crime Control Act, Code of Virginia, §§ 16.1-309.2--16.1-309.10, for goods or personal services for direct use by the recipients of such programs if the procurement is made for an individual recipient; however, contracts for the bulk procurement of goods or services for the use of recipients shall not be exempted from the requirements of this chapter.

(7) Contracts for or purchases of equipment, services, the printing of ballots or statements of results, or other materials essential to the conduct of a general, primary or special election.

(8) Purchases from the Virginia Correctional Enterprises, from the state department of general services division of purchases and supply and from the state department of transportation.

(9) Purchases for special police work when the chief of police certifies to the director that items are needed for undercover police operations.

(10) Scientific instruments and equipment, medicines and drugs, legal and scientific books and periodicals, and professional books and periodicals.

(11) Manuscripts, maps, charts, sheet music, phonograph records, compact video or audio discs, video or audio cassette tapes, books, pamphlets and periodicals.

(12) Such perishable articles as may be designated in the rules and regulations established by ordinance.

(13) Association dues and membership in professional associations for city agencies and employees.

(14) Expenses for city-sponsored:

a. Conference-related room deposits;

b. Hotel and motel lodging;

c. Conference registration;

d. Banquets; and

e. Catering.

(15) Advertising in publications.

(16) Sculptures, paintings or other works of art.

(17) Purchases on existing contracts established by professional organizations that the city may use by virtue of its membership in such organizations.

(18) Purchases on existing contracts established by other public bodies.

(19) Services purchased by the city retirement system related to the management, purchase, or sale of investments authorized by this section, including but not limited to actuarial services, when governed by the standard of care set forth in Code of Virginia, § 51.1-803.

(b) Notwithstanding subsection (a) of this section, the requirements of section 74-9 concerning prompt payment of bills and article IX of this chapter concerning ethics in public contracting shall apply to any procurement transaction listed in this section.

(c) The director of procurement services may delegate to the director of public utilities the authority to purchase natural gas and to arrange for the transportation of natural gas without requiring that sealed bids be received pursuant to invitations extended as set out in section 74-51. (Code 1993, § 22.1-67)

State Law References: Similar provisions, Code of Virginia, §§ 2.2-4343-2.2-4346.

Sec. 74-4. Definitions.

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Business means any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture or any other private legal entity.

Competitive negotiation means a method of source selection that involves individual discussions between the city and the offeror on the basis of responses to the city's request for proposals.

Competitive sealed bidding means a method of contractor selection under this chapter, not required for the procurement of professional services, that begins with the public notice and issuance of a written invitation for bids under section 74-51, includes a public opening under section 74-56, and results in the evaluation of bids under section 74-58 and an award under section 74-59.

Construction means building, altering, repairing, improving or demolishing any structure, building, road, street or highway, and any draining, dredging, excavation, grading or similar work upon real property.

Construction management contract means a contract in which a party is retained by the city to coordinate and administer contracts for construction services for the benefit of the city, and may also include, if provided in the contract, the furnishing of construction services to the city.

Contract means all types of city agreements, regardless of what they may be called, for the procurement of goods, services, insurance or construction.

Contract modification/supplement means any written alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity or other provision of any contract accomplished by mutual action of the parties to the contract.

Contractor means any person, company, corporation, or partnership having a contract with the city or a using agency thereof.

Cost analysis means the evaluation of cost data for the purpose of arriving at costs actually incurred or estimates of costs to be incurred, prices to be paid, and costs to be reimbursed.

Cost data means factual information concerning the cost of labor, material, overhead, and other cost elements, which are expected to be incurred or which have been actually incurred by the contractor in performing the contract.

Cost reimbursement contract means a contract under which a contractor is reimbursed for costs which are allowable and allocable in accordance with the contract terms and this chapter and a fee or profit, if any.

Design-build contract means a contract between the city and another party in which the party contracting with the city agrees to both design and build the structure, roadway or other item specified in the contract.

Direct or indirect participation means involvement through decision, approval, disapproval, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or any other advisory capacity.

Director means the director of procurement services of the city.

Disadvantaged business means a business meeting the definitions set forth in the Code of Federal Regulations pertaining to the applicable federal grant program.

Emerging small business means a business that:

(1) Has been certified by the office of minority business development for a period of up to seven years;

(2) Has annual gross receipts of $500,000.00 or less for each of its three fiscal years preceding application for such certification if engaged primarily in the construction business or of $250,000.00 or less if engaged primarily in a nonconstruction business;

(3) Has fewer than ten full-time, permanent employees;

(4) Is not a subsidiary of another business and does not belong to a group of businesses owned and controlled by the same individuals;

(5) Has its principal place of business entirely within the boundaries of a city enterprise zone;

(6) Possesses a city business license; and

(7) Pays personal property, real estate, and business taxes, as applicable, to the city.

Good faith minority business enterprise and emerging small business participation efforts means the sum total of efforts by a particular business to provide for the equitable participation of minority business enterprises or emerging small business subcontractors. For past efforts, this sum total shall be comprised of the record of participation by minority business enterprises and emerging small businesses through subcontracting or joint ventures. For future efforts, it shall be comprised of such efforts which are proposed to allow equitable participation of minority business enterprises or emerging small business subcontractors.

Goods means all material, equipment, supplies, printing and automated data processing hardware and software.

Informality means a minor defect or variation of a bid or proposal from the exact requirements of the invitation for bids or the request for proposals which does not affect the quality, quantity or delivery schedule for the goods, services or construction being procured.

Insurance means a contract whereby, for a stipulated consideration, one party undertakes to compensate the other for loss on a specified subject by specified perils.

Intent to award means an intent by the city to accept a bid or proposal.

Invitation for bids means all documents, whether attached or incorporated by reference, utilized for soliciting sealed bids.

Minority business enterprise means a business, at least 51 percent of which is owned and controlled or 51 percent minority-owned and operated by minority group members or, for a stock corporation, at least 51 percent of the stock which is owned and controlled by minority group members.

Minority group members means citizens of the United States who are Blacks, Hispanics, Asians, Indians, Eskimos or Aleuts.

Nominal value means a value so small, slight, or the like, in comparison to what might properly be expected, as scarcely to be entitled to the same, but in no case to be more than $30.00.

Nonprofessional services means any services not specifically identified as professional services.

Person means any business, individual, corporation, union, committee, club, other organization, or group of individuals.

Professional services means work performed by an independent contractor within the scope of the practice of accounting, actuarial services, architecture, land surveying, landscape architecture, law, dentistry, medicine, optometry, pharmacy or professional engineering.

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 sovereign power or to perform some governmental duty, and empowered by law to undertake the activities described in this chapter.

Public contract means an agreement between a public body and a nongovernmental source that is enforceable in a court of law.

Qualified products list means an approved list of goods, services or construction items described by model or catalog number that, prior to competitive solicitation, the city has determined will meet the applicable specification requirements.

Recycled paper means any paper having a total weight consisting of not less than 50 percent recovered materials, as that term is defined for purposes of purchasing paper and paper products in 40 CFR 247.3 (2001), as amended.

Request for proposals means all documents, whether attached or incorporated by reference, utilized for soliciting proposals.

Request for qualifications means all documents, whether attached or incorporated by reference, utilized for soliciting qualification statements.

Responsible bidder and responsible offeror mean a person who has the capability, in all respects, to perform fully the contract requirements and the moral and business integrity and reliability which will ensure good faith performance, and who has been prequalified, if required.

Responsive bidder means a person who has submitted a bid which conforms in all material respects to the invitation for bids.

Services means any work performed by an independent contractor which does not consist primarily of acquisition of equipment or materials, or the rental of equipment, materials and supplies.

Specification means any written description of the physical or functional characteristics or of the nature of a good, service or construction item. It may include a description of any requirement for inspecting, testing, or preparing a good, service or construction item for delivery.

Using agency means any department, agency, bureau, board, commission, court, city jail or jail forum or other unit in the city government requiring goods, services, insurance or construction as provided for in this chapter. (Code 1993, § 22.1-3; Ord. No. 2006-134-105, § 1, 5-8-2006)

Cross References: Definitions generally, § 1-2.State Law References: Definitions, Code of Virginia, § 2.2-4301.

Sec. 74-5. Public inspection of certain records.

(a) Except as provided in this section, all proceedings, records, contracts and other public records relating to procurement transactions shall be open to the inspection of any citizen or any interested person, firm or corporation, in accordance with the Virginia Freedom of Information Act, Code of Virginia, § 2.2-3700 et seq.

(b) Cost estimates relating to a proposed procurement transaction prepared by or for a public body shall not be open to public inspection.

(c) Any competitive sealed bidding bidder, upon request, shall be afforded the opportunity to inspect bid records within a reasonable time after the opening of all bids but prior to award, except in the event that the public body decides not to accept any of the bids and to reopen the contract. Otherwise, bid records shall be open to public inspection only after award of the contract.

(d) Any competitive negotiation offeror, upon request, shall be afforded the opportunity to inspect proposal records within a reasonable time after the evaluation and negotiations of proposals are completed but prior to award, except in the event that the public body decides not to accept any of the proposals and to reopen the contract. Otherwise, proposal records shall be open to public inspection only after award of the contract.

(e) Any inspection of procurement transaction records under this section shall be subject to reasonable restrictions to ensure the security and integrity of the records.

(f) Trade secrets or proprietary information submitted by a bidder, offeror or contractor in connection with a procurement transaction or prequalification application submitted pursuant to section 74-50 shall not be subject to the Virginia Freedom of Information Act, Code of Virginia, § 2.2-3700 et seq.; however, the bidder, offeror or contractor shall:

(1) Invoke the protections of this section prior to or upon submission of the data or other materials;

(2) Identify the data or other materials to be protected; and

(3) State the reasons why protection is necessary. (Code 1993, § 22.1-38)

State Law References: Similar provisions, Code of Virginia, § 2.2-4342.

Sec. 74-6. Financing arrangements.

As a requisite for entering into any contract for the procurement of goods, services, insurance, construction or other purchase to be made pursuant to this chapter, the approval of the director of finance shall be obtained prior to agreeing to the terms of any contract that will involve lease-purchase, installment payments, payment of interest on deferred balances or any other means of financing a deferred balance of the cost of purchase of such goods or services. (Code 1993, § 22.1-2.1)

Charter References: Certification of fund, § 6.20.

Sec. 74-7. Unauthorized purchases.

Except as provided in this chapter, 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 director. Any purchase order or contract made contrary to this chapter or any purchase order or contract made when sufficient funds are not available is not approved, and the city shall not be bound thereby. (Code 1993, § 22.1-17)

Sec. 74-8. Purchasing of recycled materials.

In determining the award of any contract for paper or paper products to be purchased for use by city agencies, the department of procurement services shall award to the lowest responsible and responsive bidder offering recycled paper of a quality suitable for the purpose intended, so long as the bid price is not more than ten percent greater than the bid price of the lowest responsive and responsible bidder offering a product that does not qualify under the definition of the term "recycled paper" found in section 74-4. (Code 1993, § 22.1-4)


Sec. 74-9. Prompt payment of bills.

(a) Every city agency that acquires goods or services or conducts any other type of contractual business with a nongovernmental, privately owned enterprise shall promptly pay for the completed delivered goods or services by the required payment date. The required payment date shall be either:

(1) The date on which payment is due under the terms of the contract for the provision of the goods or services; or

(2) If a date is not established by contract, not more than 45 days after goods or services are received or not more than 45 days after the invoice is rendered, whichever is later.

(b) Separate payment dates may be specified for contracts under which goods or services are provided in a series of partial executions or deliveries to the extent that the contract provides for separate payment for partial execution or delivery.

(c) Within 20 days after the receipt of the invoice or goods or services, the agency shall notify the supplier of any defect or impropriety that would prevent payment by the payment date.

(d) Unless otherwise provided under the terms of the contract for the provision of goods or services, every agency that fails to pay by the payment date shall pay any finance charges assessed by the supplier that shall not exceed one percent per month.

(e) This section shall not apply to the late payment provisions in any public utility tariffs or public utility negotiated contracts. (Code 1993, § 22.1-71)


Secs. 74-10--74-40. Reserved.

ARTICLE II.

CONTRACT FORMATION AND METHODS OF SOURCE SELECTION

Sec. 74-41. Small purchases.

Any contract not exceeding the amount specified in Code of Virginia, § 2.2-4303(G) as the ceiling for the use of small purchase procedures may be made in accordance with small purchase procedures established by the director; provided, however, that contract requirements shall not be artificially divided so as to constitute a small purchase under this section. Insofar as it is practical, no less than three businesses shall be solicited to submit quotations, at least one of which shall be a local minority business enterprise or emerging small business. The efforts to solicit a local minority business enterprise or emerging small business shall be recorded and maintained as a public record. Award shall be made to the business offering the lowest acceptable quotation. The names of the businesses submitting a quotation and the dates and amounts of each quotation shall be recorded and maintained as a public record. (Code 1993, § 22.1-66)

State Law References: Similar provisions, Code of Virginia, § 2.2-4303(G).

Sec. 74-42. Only practical source procurement.

Should the director determine in writing, after conducting a good faith review of available sources, that there is only one source practicably available for that which is to be procured, the director may award a contract to that source without competitive sealed bidding or competitive negotiation and may conduct negotiations, as appropriate, as to price, delivery and terms. However, the director shall not make such a determination until the director has contacted the office of minority business development and learned whether minority business enterprises or emerging small businesses exist that would be qualified, willing and able to provide that which is to be procured. The writing shall document the basis for this determination. The director shall maintain a record of only practical source procurements that lists the following for each procurement:

(1) A description of that which is being procured;

(2) The contractor selected;

(3) The date on which the contract was or will be awarded;

(4) The amount and type of the contract; and

(5) The identification number of the contract file. (Code 1993, § 22.1-64; Ord. No. 2006-134-105, § 1, 5-8-2006)

State Law References: Similar provisions, Code of Virginia, § 2.2-4303(E).

Sec. 74-43. Emergency purchases.

(a) In an emergency, the director may authorize or order the expenditure of funds for emergency purchases of supplies, materials, equipment and contractual services for the using agencies 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 shall be included in the contract file.

(b) An emergency shall be deemed to exist when the director determines that:

(1) A breakdown or failure of machinery or other equipment has occurred;

(2) A curtailment, diminution or termination of an essential service is threatened; or

(3) A dangerous condition has developed and that a procurement without recourse to competitive sealed bidding or competitive negotiation is:

a. Needed to prevent loss of life or property;

b. Essential to protect and preserve the interests of the city and its inhabitants;

c. Needed to maintain the proper functioning of the city government; or

d. Needed to maintain the efficient rendering of public services.

(c) Whenever, because of scarcity, the department of public utilities is curtailed in excess of 15 percent of the quantity of natural gas which it is otherwise entitled to receive from its supplier pursuant to the terms of a contract approved by the city council, the director of public utilities is authorized, during the period of curtailment, to make purchases permitted by regulations of the Federal Energy Regulatory Commission or other governmental authorities having jurisdiction of such additional and emergency supplies of natural gas as may be available, without recourse to competitive bidding. The director of public utilities shall advise the chief administrative officer and the director of procurement services of the fact of such purchase. (Code 1993, § 22.1-65; Ord. No. 2004-360-330, § 1, 12-13-2004)

State Law References: Similar provisions, Code of Virginia, § 2.2-4303(F).

Sec. 74-44. Cooperative procurement; conditions for use.

(a) The city may participate in, sponsor, conduct or administer a cooperative procurement agreement with one or more other public bodies for the purpose of combining requirements to increase efficiency or reduce administrative expenses. Any public body which enters into a cooperative procurement agreement with the city shall comply with the policies and procedures adopted by this chapter.

(b) The city, which is also a utility operator, may purchase services through or participate in contracts awarded by one or more utility operators which are not public bodies for utility marking services, as required by the underground utility damage prevention act, Code of Virginia, § 56-265.14 et seq. A purchase of services under this subsection may deviate from the procurement procedures set forth in this chapter, upon a determination made in advance by the director and set forth in writing that competitive sealed bidding is either not practicable or not fiscally advantageous to the public and the contract is awarded based on competitive principles. (Code 1993, § 22.1-26)


Sec. 74-45. Conditions for use of competitive sealed bidding.

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 chapter, unless otherwise authorized by law. (Code 1993, § 22.1-36)

State Law References: Similar provisions, Code of Virginia, § 2.2-4303(A).

Sec. 74-46. Competitive sealed bidding or competitive negotiations on state-aid projects.

No contract for the construction of any building or for an addition to or improvement of an existing building for which state funds of not more than $30,000.00 in the aggregate or for the sum of all phases of a contract or project, either by appropriation, grant-in-aid or loan, are used or are to be used for all or part of the cost of construction shall be let except after competitive sealed bidding or after competitive negotiation as provided under section 74-71(a)(3). The procedure for the advertising for bids or for proposals and for letting of the contract shall conform, mutatis mutandis, to this chapter. (Code 1993, § 22.1-37)


Sec. 74-47. Permitted contracts with certain religious organizations; purpose; limitations.

(a) The general assembly has indicated its intent, in accordance with the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, PL 104-193, to authorize the city to enter into contracts with faith-based organizations for the purposes described in this section on the same basis as any other nongovernmental source without impairing the religious character of such organization and without diminishing the religious freedom of the beneficiaries of assistance provided under this section.

(b) For the purposes of this section, the term "faith-based organization" means a religious organization that is or applies to be a contractor to provide goods or services for programs funded by the block grant provided pursuant to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, PL 104-193.

(c) The city, in procuring goods or services or in making disbursements pursuant to this section shall not:

(1) Discriminate against a faith-based organization on the basis of the organization's religious character; or

(2) Impose conditions that:

a. Restrict the religious character of the faith-based organization, except as provided in subsection (f) of this section; or

b. Impair, diminish, or discourage the exercise of religious freedom by the recipients of such goods, services, or disbursements.

(d) The city shall ensure that all invitations for bids, requests for proposals, contracts, and purchase orders prominently display a nondiscrimination statement indicating that the city does not discriminate against faith-based organizations.

(e) A faith-based organization contracting with the city:

(1) Shall not discriminate against any recipient of goods, services, or disbursements made pursuant to a contract authorized by this section on the basis of the recipient's religion, religious belief, refusal to participate in a religious practice or on the basis of race, age, color, gender or national origin; and

(2) Shall be subject to the same rules as other organizations that contract with the city to account for the use of the funds; provided, however, if the faith-based organization segregates public funds into separate accounts, only the accounts and programs funded with public funds shall be subject to audit by the city.

Nothing in subsection (e)(2) of this section shall be construed to supersede or otherwise override any other applicable state law.

(f) Consistent with the Personal Responsibility and Work Opportunity Reconciliation Act of 1996,

PL 104-193, funds provided for expenditure pursuant to contracts with the city shall not be spent for sectarian worship, instruction, or proselytizing; however, this prohibition shall not apply to expenditures pursuant to contracts, if any, for the services of chaplains.

(g) Nothing in this section shall be construed as barring or prohibiting a faith-based organization from any opportunity to make a bid or proposal or contract on the grounds that the faith-based organization has exercised the right, as expressed in 42 USC 2000e-1 et seq., to employ persons of a particular religion.

(h) If an individual, who applies for or receives goods, services, or disbursements provided pursuant to a contract between the city and a faith-based organization, objects to the religious character of the faith-based organization from which the individual receives or would receive the goods, services, or disbursements, the city shall offer the individual, within a reasonable period of time after the date of the individual's objection, access to equivalent goods, services, or disbursements from an alternative provider. The city shall provide to each individual who applies for or receives goods, services, or disbursements provided pursuant to a contract between the city and a faith-based organization a notice in boldface type that states:

"Neither the City's selection of a charitable or faith-based provider of services nor the expenditure of funds under this contract is an endorsement of the provider's charitable or religious character, practices, or expression. No provider of services may discriminate against you on the basis of religion, a religious belief, or your refusal to actively participate in a religious practice. If you object to a particular provider because of its religious character, you may request assignment to a different provider. If you believe that your rights have been violated, please discuss the complaint with your provider or notify the appropriate person as indicated in this form."

(Code 1993, § 22.1-72)State Law References: Similar provisions, Code of Virginia, § 2.2-4343.1.

Sec. 74-48. Design-build or construction management contracts; eligibility requirements; award of contract; records to be kept.

(a) While the competitive sealed bid process remains the preferred method of construction procurement for the city, the city may enter into a contract for construction on a fixed price or not-to-exceed price design-build or construction management basis provided the city complies with the requirements of this section and has obtained the approval of the design-build/construction management review board (referred to as "the review board") pursuant to Code of Virginia, § 2.2-2406.

(b) Prior to making a determination as to the use of design-build or construction management for a specific construction project, the city shall have in its employ or under contract a licensed architect or engineer with professional competence appropriate to the project who shall advise the city regarding the use of design-build or construction management for that project and who shall assist the city with the preparation of the request for proposals and the evaluation of such proposals. Prior to issuing a request for proposals for any design-build or construction management contract for a specific construction project, the city shall:

(1) Have adopted, by ordinance or resolution, written procedures governing the selection, evaluation and award of design-build and construction management contracts. Such procedures shall be consistent with those described in this chapter for the procurement of nonprofessional services through competitive negotiation. Such procedures shall also require requests for proposals to include and define the criteria of such construction project in areas such as site plans; floor plans;

exterior elevations; basic building envelope materials; fire protection information plans; structural, mechanical (HVAC), and electrical systems; and special telecommunications; and may define such other requirements as the city determines appropriate for that particular construction project. Except as may otherwise be approved by the review board, such procedures for:

a. Design-build construction projects shall include a two-step competitive negotiation process consistent with the review board's regulations.

b. Construction management projects shall include selection procedures and required construction management contract terms consistent with the review board's regulations.

(2) Have documented in writing that for a specific construction project:

a. A design-build or construction management contract is more advantageous than a competitive sealed bid construction contract;

b. There is a benefit to the public body by using a design-build or construction management contract; and

c. Competitive sealed bidding is not practical or fiscally advantageous.

(c) Once approved by the review board in accordance with Code of Virginia, § 2.2-2406, the city may procure a design-build or construction management contract for the specific construction project presented to the review board. Unless otherwise specified in the request for proposals, the contract shall be awarded to the fully qualified offeror who submits an acceptable proposal at the lowest cost in response to the request for proposals.

(d) The city shall provide information as requested by the review board to allow post-project evaluation by the review board. (Code 1993, § 22.1-37.1)


Sec. 74-49. Prequalification of nonconstruction bidders and offerors.

(a) The director is authorized to prequalify bidders or offerors prior to a solicitation of bids or proposals, whether for goods, services, or insurance, by requiring prospective bidders or offerors to submit such information as the director shall deem appropriate, including but not limited to samples, financial reports, and references. The opportunity to prequalify shall be given to any prospective bidder or offeror who has not been suspended or debarred under this chapter.

(b) The director may refuse to prequalify any prospective bidder or offeror provided that the bidder or offeror is notified in writing. Such notice shall state the reasons for the action taken. A prospective bidder or offeror who fails to prequalify for a procurement may not bid on the procurement. However, such prospective bidder or offeror may appeal the disqualification as provided in section 74-186.

(c) In considering any request for prequalification, the director shall determine whether there is

reason to believe that the bidder or offeror possesses the management, financial soundness, and history of performance which indicate apparent ability to successfully complete the plans and specifications of the invitations for bids or request for proposals, and the bidder's or offeror's past and proposed future good faith minority business enterprise and emerging small business participation efforts. In the absence of different weights or criteria established by the office of minority business development, a prospective bidder's good faith minority business enterprise and emerging small business participation efforts shall comprise 30 percent of the total prequalification score. The office of minority business development shall develop forms and criteria for and shall assess a bidder's prequalification with respect to past and proposed minority business enterprise and emerging small business participation efforts. No prospective bidder receiving less than 50 percent of the possible minority business enterprise and emerging small business participation efforts percentage points shall be prequalified unless granted a waiver by the chief administrative officer. The chief administrative officer may allow a waiver only when:

(1) No other qualified, willing, and able prospective bidders have applied for prequalification; and

(2) The director of the office of minority business development certifies that the prospective bidder is unable due to circumstances beyond its control to make good faith minority business enterprise and emerging small business participation efforts that would achieve a higher number of percentage points. The proposed efforts must be set forth in detail in writing and must be legally binding on the prospective bidder.

(d) Prequalification of a bidder or offeror shall not constitute a conclusive determination that the bidder or offeror is responsible, and such bidder or offeror may be rejected as nonresponsible on the basis of subsequently discovered information.

(e) Failure of a bidder or offeror to prequalify with respect to a given procurement shall not bar the bidder or offeror from seeking prequalification as to future procurements or from bidding or offering proposals on procurements which do not require prequalification. (Code 1993, § 22.1-41; Ord. No. 2004-360-330, § 1, 12-13-2004; Ord. No. 2006-134-105, § 1, 5-8-2006)


Sec. 74-50. Prequalification of construction bidders.

(a) Any prequalification of prospective contractors for construction shall be pursuant to a prequalification process consistent with this section. The opportunity to prequalify shall be given to any prospective bidder who has not been suspended or debarred under this chapter.

(b) Good faith minority business enterprise and emerging small business participation efforts previously made and those efforts proposed to be made by the prospective bidder shall be information required to prequalify. In the absence of different weights or criteria established by the office of minority business development, a prospective bidder's good faith minority business enterprise and emerging small business participation efforts shall comprise 30 percent of the total prequalification score. The office of minority business development shall develop forms and criteria for and shall assess a bidder's prequalification with respect to past and proposed minority business enterprise and emerging small business participation efforts. No prospective bidder receiving less than 50 percent of the possible minority business enterprise and emerging small business participation efforts percentage points shall be prequalified unless granted a waiver by the chief administrative officer. The chief administrative officer may allow a waiver only when:

(1) No other qualified, willing, and able prospective bidders have applied for prequalification; and

(2) The director of the office of minority business development certifies that the prospective bidder is unable due to circumstances beyond its control to make good faith minority business enterprise and emerging small business participation efforts that would achieve a higher number of percentage points. The proposed efforts must be set forth in detail in writing and must be legally binding on the prospective bidder.

(c) The office of minority business development shall maintain and update a list of bona fide minority business enterprises and emerging small businesses that are engaged in various fields of construction subcontracting and shall make this list available to all prospective prime construction contractors who desire to use it for assistance in attaining the highest possible ranking for good faith minority business enterprise and emerging small business participation efforts.

(d) The application form used in the prequalification process shall set forth the criteria upon which the qualifications of prospective contractors will be evaluated. The application form shall request of prospective contractors only such information as is appropriate for an objective evaluation of all prospective contractors pursuant to such criteria. Such form shall allow the prospective contractor seeking prequalification to request, by checking the appropriate box, that all information voluntarily submitted by the contractor pursuant to this subsection shall be considered a trade secret or proprietary information subject to section 74-5(f).

(e) Advance notice shall be given of the deadline for the submission of prequalification applications. The deadline for submission shall be sufficiently in advance of the date set for the submission of bids as to allow the procedures set forth in this subsection to be accomplished.

(f) At least 30 calendar days prior to the date established for submission of bids or proposals under the procurement of the contract for which the prequalification applies, the city shall advise in writing each contractor which submitted an application whether that contractor has been prequalified. If a contractor is denied prequalification, the written notification to such contractor shall state the reasons for such denial of prequalification and the factual basis of such reasons. A decision by the city denying prequalification under this section shall be final and conclusive unless the contractor appeals the decision as provided in section 74-186.

(g) Prequalification may be denied to any contractor only if the city finds one of the following:

(1) The contractor does not have sufficient financial ability to perform the contract that would result from such procurement. If a bond is required to ensure performance of a contract, evidence that the contractor can acquire a surety bond from a corporation included on the United States Treasury list of acceptable surety corporations in the amount and type required by the city shall be sufficient to establish the financial ability of such contractor to perform the contract resulting from such procurement;

(2) The contractor does not have appropriate experience to perform the construction project in question;

(3) The contractor or any officer, director or owner thereof has had judgments entered against the

contractor within the past ten years for the breach of contracts for governmental or nongovernmental construction, including but not limited to design-build or construction management;

(4) The contractor has been in substantial noncompliance with the terms and conditions of prior construction contracts with the city without good cause. If the city has not contracted with a contractor in any prior construction contracts, the city may deny prequalification if the contractor has been in substantial noncompliance with the terms and conditions of comparable construction contracts with another public body without good cause. The city may not utilize this subsection (g)(4) to deny prequalification unless the facts underlying such substantial noncompliance were documented in writing in the prior construction project file and such information relating thereto was given to the contractor at that time, with the opportunity to respond;

(5) The contractor or any officer, director, owner, project manager, procurement manager or chief financial official thereof has been convicted within the past ten years of a crime related to governmental or nongovernmental construction or contracting, including, but not limited to, a violation of:

a. Article VIII of this chapter;

b. The Virginia Governmental Frauds Act, Code of Virginia, § 18.2-498.1 et seq.;

c. Code of Virginia, § 59.1-68.6 et seq., which pertains to conspiracy to rig bids to government; or

d. Any substantially similar law of the United States or another state;

(6) The contractor or any officer, director or owner thereof is currently debarred pursuant to an established debarment procedure from bidding or contracting by any public body, agency of another state or agency of the federal government;

(7) The contractor failed to provide to the city in a timely manner any information requested by the city relevant to subsections (g)(1)--(6) of this section; and

(8) The contractor failed to make or propose to make good faith minority business enterprise and emerging small business participation efforts as set forth in subsection (b) of this section. A contractor that fails to receive a score of at least 50 percent of the possible minority business enterprise and emerging small business participation efforts percentage points shall not be prequalified to bid on or receive the contract.

(Code 1993, § 22.1-41.1; Ord. No. 2004-360-330, § 1, 12-13-2004; Ord. No. 2006-134-105, § 1, 5-8-2006)

Sec. 74-51. Notice of invitation to bid.

(a) Notice inviting bids or requesting proposals shall be posted in a designated public area at least ten calendar days preceding the last day set for the receipt of bids or proposals.

(b) When requesting proposals or inviting bids, the director shall also solicit proposals or sealed bids from a minimum of three responsible prospective suppliers who have requested their names to be added to a vendors' list, which the director shall maintain, by sending another notice as will acquaint them with the proposed purchase or sale. Where there exist less than three known suppliers, the director shall solicit proposals or sealed bids from each source. In any case, solicitations sent to the vendors on the vendors' list shall be limited to goods or services that are similar in character and ordinarily handled by the trade group to which the solicitations are sent.

(c) The director shall also advertise pending purchases or sales by notice posted on the public bulletin board in the office of the department of procurement services.

(d) In addition to the requirements of this section, the director may provide the notices required by this section electronically and on the city's World Wide Web site in accordance with such policies and procedures as the director may promulgate to govern such notices. (Code 1993, § 22.1-42)

Sec. 74-52. Use of brand names.

Unless otherwise provided in the invitation for bids, the name of a certain brand, make or manufacturer shall not restrict bidders to the specific brand, make or manufacturer named and shall be deemed to convey the general style, type, character and quality of the article desired. Any article that the city in its sole discretion determines to be the equal of that specified, considering quality, workmanship, economy of operation, and suitability for the purpose intended, shall be accepted. The burden of proof as to the comparative quality and suitability of the alternative equipment, articles, materials or supplies shall be on the bidder or offeror, who shall furnish at the bidder's or offeror's own expense such information relating thereto as may be required by the purchasing agent. (Code 1993, § 22.1-43)


Sec. 74-53. Comments on specifications.

For complex equipment, supplies, services or construction, pre-bid conferences with prospective bidders may be desirable after draft specifications have been prepared. Such conferences may be utilized to help detect unclear provisions that tend to widen competition by removing unnecessarily restrictive language. Conferences on purchasing bids will be called by the director and attended by a requesting agency or department representative and, if necessary, the city attorney. (Code 1993, § 22.1-44)


Sec. 74-54. Bid bonds on construction contracts.

(a) Except in an emergency, all bids or proposals for construction contracts in excess of $100,000.00 shall be accompanied by a bid bond from a surety company selected by the bidder that is authorized to do business in the state, as a guarantee that, if the contract is awarded to the bidder, the bidder will enter into the contract for the work mentioned in the bid. The amount of the bid bond shall not exceed five percent of the amount bid.

(b) No forfeiture under a bid bond shall exceed the lesser of:

(1) The difference between the bid for which the bond was written and the next low bid; or

(2) The face amount of the bid bond.

(c) Nothing in this section shall preclude the city from requiring bid bonds to accompany bids or proposals for construction contracts anticipated to be less than $100,000.00. (Code 1993, § 22.1-45)


Sec. 74-55. Bonds for other than construction contracts.

(a) At the discretion of the director, bidders may be required to submit with their bids a bid bond from a surety company selected by the bidder that is authorized to do business in the state, or a certified check, in an amount to be determined by the director and specified in the invitation for bids, which shall be forfeited to the city upon the bidder's failure to execute a contract awarded to the bidder or upon the bidder's failure to furnish any required performance or payment bonds in connection with a contract awarded.

(b) The director may require successful bidders to furnish a performance bond and/or a payment bond from a surety company selected by the bidder that is authorized to do business in the state at the expense of the successful bidder, in amounts to be determined by the director and specified in the invitation for bids, to ensure the satisfactory completion of the work for which a contract or purchase order is awarded. (Code 1993, § 22.1-46)


Sec. 74-56. Bid opening.

Bids received pursuant to this article shall be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids. The amount of each bid and such other relevant information as the director deems appropriate, together with the name of each bidder, shall be recorded; the record and each bid shall be open to public inspection upon completion of the award. A tabulation of all bids received shall be made available for public inspection after the bid opening. (Code 1993, § 22.1-47)

Sec. 74-57. Withdrawal of bid due to error.

(a) A bidder for a public construction contract, other than a contract for construction or maintenance of public highways, may withdraw the bid from consideration if the price bid was substantially lower than the other bids due solely to a mistake in the bid, provided the bid was submitted in good faith, and the mistake was a clerical mistake as opposed to a judgment mistake and was actually due to an unintentional arithmetic error or an unintentional omission of a quantity of work, labor or material made directly in the compilation of a bid, which unintentional arithmetic error or unintentional omission can be clearly shown by objective evidence drawn from inspection of original work papers, documents and materials used in the preparation of the bid sought to be withdrawn.

(b) If a bid contains both clerical and judgment mistakes, a bidder may withdraw the bid from

consideration if the price bid would have been substantially lower than the other bids due solely to the clerical mistake that was an unintentional arithmetic error or an unintentional omission of a quantity of work, labor or material made directly in the compilation of a bid that shall be clearly shown by objective evidence drawn from inspection of original work papers, documents and materials used in the preparation of the bid sought to be withdrawn.

(c) One of the following procedures for withdrawal of a bid shall be selected by the director and stated in the advertisement for bids:

(1) The bidder shall give notice in writing of the claim of right to withdraw the bid within two business days after the conclusion of the bid opening procedure and shall submit original work papers with such notice; or

(2) The bidder shall submit to the director the bidder's original work papers, documents and materials used in the preparation of the bid within one day after the date fixed for submission of bids.

The work papers shall be delivered by the bidder in person or by registered mail at or prior to the time fixed for the opening of bids. In either instance, the work papers, documents and materials may be considered as trade secrets or proprietary information subject to the conditions of section 74-5(f). The bids shall be opened one day following the time fixed by the director for the submission of bids. Thereafter, the bidder shall have two hours after the opening of bids within which to claim in writing any mistake as defined in this subsection and withdraw the bid. The contract shall not be awarded by the city until the two-hour period has elapsed. The mistake shall be proved only from the original work papers, documents and materials delivered as required in this subsection.

(d) The director may establish procedures for the withdrawal of bids for other than construction contracts.

(e) No bid shall be withdrawn under this section when the result would be the awarding of the contract on another bid of the same bidder or of another bidder in which the ownership of the withdrawing bidder is more than five percent.

(f) If a bid is withdrawn in accordance with this section, the lowest remaining bid shall be deemed to be the low bid.

(g) No bidder who is permitted to withdraw a bid shall, for compensation, supply any material or labor to or perform any subcontract or other work agreement for the person to whom the contract is awarded or otherwise benefit, directly or indirectly, from the performance of the project for which the withdrawn bid was submitted.

(h) If the director denies the withdrawal of a bid under this section, the director shall notify the bidder in writing stating the reasons for the decision and award the contract to such bidder at the bid price, provided such bidder is a responsible and responsive bidder. (Code 1993, § 22.1-48)


Sec. 74-58. Bid evaluation under competitive sealed bidding.

In determining the lowest responsive and responsible bidder on purchases or contracts, the following factors, among such others as will protect and preserve the interests of the city and its inhabitants, shall be considered:

(1) The ability, capacity and will of the bidder to perform the contract or provide the service required.

(2) Whether the bidder can perform the contract or provide the services promptly or within the time specified, without delay or interference.

(3) The character, integrity, reputation, judgment, experience and efficiency of the bidder.

(4) The quality of performance of previous contracts or services.

(5) The previous and existing compliance by the bidder with laws and ordinances relating to the contract, purchase or service.

(6) The equipment, personnel and facilities available to the bidder to perform the contract or provide the service.

(7) The sufficiency of the financial resources and ability of the bidder to perform the contract or provide the service.

(8) The quality, availability and adaptability of the supplies, materials, equipment or services to the particular use required.

(9) The ability of the bidder to provide future maintenance and service for the use of the subject of the purchase or contract.

(10) The amount and conditions, if any, of the bid;

(11) The bidder's showing that it can and will comply with its proposed commitments to minority business enterprise and emerging small business participation efforts;

(12) The bidder's past performance with regard to its minority business enterprise and emerging small business participation efforts.

(Code 1993, § 22.1-49)

Sec. 74-59. Bid award under competitive sealed bidding.

(a) Bids under competitive sealed bidding shall be awarded to the lowest responsive and responsible bidder. When the terms and conditions of multiple bids are so provided in the invitation to bid, awards may be made to more than one bidder.

(b) The contract shall be awarded with reasonable promptness by written notice to the lowest responsible bidder whose bid meets the requirements and criteria set forth in the invitation for bids. If all bids for a procurement exceed available funds allocated to that procurement by prior agency, departmental or other official action, as certified by the agency head or department director, the director, with the approval of the chief administrative officer, is authorized, when time or economic considerations preclude resolicitations of work of a reduced scope, to negotiate an adjustment of the bid price with the lowest responsive and responsible bidder in order to bring the bid within the amount of available funds allocated to that procurement.

(c) When the award is not given to the lowest bidder, a full and complete statement of the reasons for placing the order elsewhere shall be prepared by the purchasing office and filed with the other papers relating to this transaction. (Code 1993, § 22.1-50; Ord. No. 2004-360-330, § 1, 12-13-2004)

Sec. 74-60. Tie bids.

(a) In the case of a tie bid, preference shall be given to goods, services and construction produced in the city or provided by persons in the city, if such a choice is available; otherwise, the tie shall be decided by lot, unless section 74-8 applies.

(b) Whenever any bidder is a resident of any other state and such state under its laws allows a resident contractor of that state a preference, a like preference may be allowed to the lowest responsible bidder who is a resident of this state.

(c) In any contract which is to be awarded through competitive sealed bidding, if there are equal bids among qualified bidders, the contract shall be awarded to the contractor who will be able to provide the greatest degree of accessibility to the city officials who will be administering the contract.

(d) If more than two bids received are tied, the city shall compare location, payment terms, delivery terms, and other terms and shall select the bid most favorable to the city based on that comparison, which shall be documented in writing.

(e) If none of the subsections of this section resolve the tie, the director may cancel the solicitation and rebid. Records shall be kept of any proceeding connected with tie bids. (Code 1993, § 22.1-51)

State Law References: Similar provisions, Code of Virginia, § 2.2-4328(A).

Sec. 74-61. Contract pricing arrangements.

(a) Except as prohibited in this article, public contracts may be awarded on a fixed price or cost reimbursement basis or on any other basis that is not prohibited.

(b) Subject to the limitations of this section, any type of contract which is appropriate to the procurement and which will promote the best interests of the city may be used, provided that the use of a cost-plus-a-percentage-of-cost contract or a cost-plus-a-percentage-of-construction-cost contract is prohibited.

(c) A cost reimbursement contract may be used only when a determination is made in writing that such contract is likely to be less costly to the city than any other type or that it is impracticable to obtain the

supply, service, or construction item required except under such a contract. (Code 1993, § 22.1-53)

Sec. 74-62. Multiterm contracts.

(a) Specified period. 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 interest of the city, provided 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 therefor.

(b) Cancellation due to unavailability of funds in succeeding fiscal periods. When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract shall be canceled. (Code 1993, § 22.1-54)

Charter References: Certification of funds, § 6.20.

Sec. 74-63. Contract modification or supplement.

A public contract may include provisions for modification of the contract during performance, but no fixed-price contract that will increase the amount to be expended under such contract in an amount in excess of $100,000.00 in the aggregate shall be made unless the chief administrative officer approves such change in writing in advance of such modification being made. (Code 1993, § 22.1-55; Ord. No. 2004-360-330, § 1, 12-13-2004)


Sec. 74-64. Retainage on construction contracts.

(a) In any public contract for construction that provides for progress payments in installments based upon an estimated percentage of completion, the contractor shall be paid at least 95 percent of the earned sum when payment is due, with not more than five percent being retained to ensure faithful performance of the contract. All amounts withheld may be included in the final payment.

(b) Any subcontract for a public project that provides for similar progress payments shall be subject to this section. (Code 1993, § 22.1-56)


Sec. 74-65. Deposit of certain retained funds on certain contracts; penalty for failure to timely complete.

(a) When contracting directly with contractors for public contracts of $200,000.00 or more for construction of highways, roads, streets, bridges, parking lots, demolition, clearing, grading, excavating, paving, pile driving, miscellaneous drainage structures, and the installation of water, gas, sewer lines and pumping stations where portions of the contract price are to be retained, the city shall include in the bid proposal an option for the contractor to use an escrow account procedure for utilization of the city's retainage funds by so indicating in the space provided in the proposal documents. If the contractor elects to use the escrow account procedure, the escrow agreement form included in the bid proposal and contract shall be executed and

submitted to the director within 15 calendar days after notification. If the escrow agreement form is not submitted within the 15-day period, the contractor shall forfeit the contractor's rights to the use of the escrow account procedure.

(b) In order to have retained funds paid to an escrow agent, the contractor, the escrow agent, and the surety shall execute an escrow agreement form. The contractor's escrow agent shall be a trust company, bank or savings institution with its principal office located in the commonwealth. The escrow agreement and all regulations adopted by the city shall be substantially the same as that used by the state department of transportation.

(c) This section shall not apply to public contracts for construction for railroads, public transit systems, runways, dams, foundations, installation or maintenance of power systems for the generation and primary and secondary distribution of electric current ahead of the customer's meter, the installation or maintenance of telephone, telegraph or signal systems for public utilities, and the construction or maintenance of solid waste or recycling facilities and treatment plants.

(d) Any such public contract for construction with the city which includes payment of interest on retained funds may require a provision whereby the contractor, exclusive of reasonable circumstances beyond the control of the contractor stated in the contract, shall pay a specified penalty for each day exceeding the completion date stated in the contract.

(e) Any subcontract for such public project which provides for similar progress payments shall be subject to this section. (Code 1993, § 22.1-56.1)


Sec. 74-66. Public construction contract provisions barring damages for unreasonable delays declared void.

(a) Any provision contained in any public construction contract that purports to waive, release, or extinguish the rights of a contractor to recover costs or damages for unreasonable delay in performing such contract, either on the contractor's behalf or on behalf of the contractor's subcontractor if and to the extent the delay is caused by acts or omissions of the city, its agents or employees and due to causes within their control shall be void and unenforceable as against public policy.

(b) Subsection (a) of this section shall not be construed to render void any provision of a public construction contract that:

(1) Allows the city to recover that portion of delay costs caused by the acts or omissions of the contractor or its subcontractors, agents or employees;

(2) Requires notice of any delay by the party claiming the delay;

(3) Provides for liquidated damages for delay; or

(4) Provides for arbitration or any other procedure designed to settle contract disputes.

(c) A contractor making a claim against the city for costs or damages due to the alleged delaying of the contractor in the performance of its work under any public construction contract shall be liable to the city and shall pay it for a percentage of all costs incurred by the city in investigating, analyzing, negotiating, litigating and arbitrating the claim, which percentage shall be equal to the percentage of the contractor's total delay claim which is determined through litigation or arbitration to be false or to have no basis in law or in fact.

(d) If the city denies a contractor's claim for costs or damages due to the alleged delaying of the contractor in the performance of work under any public construction contract, the city shall be liable to and shall pay such contractor a percentage of all costs incurred by the contractor to investigate, analyze, negotiate, litigate and arbitrate the claim. The percentage paid by the city shall be equal to the percentage of the contractor's total delay claim for which the city's denial is determined through litigation or arbitration to have been made in bad faith. (Code 1993, § 22.1-56.2)


Sec. 74-67. Performance and payment bonds.

(a) Upon the award of any public construction contract exceeding $100,000.00 awarded to any prime contractor or construction contract exceeding $100,000.00 awarded to any prime contractor requiring the performance of labor or the furnishing of materials for buildings, structures or other improvements to real property owned by a public body, the contractor shall furnish to the city the following bonds:

(1) Except for transportation-related projects, a performance bond in the sum of the contract amount conditioned upon the faithful performance of the contract in strict conformity with the plans, specifications and conditions of the contract. For transportation-related projects, such bond shall be in a form and amount satisfactory to the director.

(2) A payment bond in the sum of the contract amount. Such bond shall be for the protection of claimants who have and fulfill contracts to supply labor or materials to the prime contractor to whom the contract was awarded or to any subcontractors in furtherance of the work provided for in such contract and shall be conditioned upon the prompt payment for all such material furnished or labor supplied or performed in furtherance of the work. The term "labor or materials" shall include public utility services and reasonable rentals of equipment, but only for periods when the equipment rented is actually used at the site.

(b) Each of such bonds shall be executed by one or more surety companies selected by the contractor that are authorized to do business in the state.

(c) Bonds shall be made payable to the city.

(d) Each of the bonds shall be filed with the director.

(e) Nothing in this section shall preclude the director from requiring payment or performance bonds for construction contracts below $100,000.00.

(f) Nothing in this section shall preclude such contractor from requiring each subcontractor to furnish a payment bond with surety thereon in the sum of the full amount of the contract with such

subcontractor conditioned upon the payment to all persons who have and fulfill contracts that are directly with the subcontractor for performing labor and furnishing materials in the prosecution of the work provided for in the subcontract. (Code 1993, § 22.1-57)


Sec. 74-68. Action on performance bond.

No action against the surety on a performance bond given pursuant to this article shall be brought unless within one year after:

(1) Completion of the contract, including the expiration of all warranties and guaranties; or

(2) Discovery of the defect or breach of warranty, if the action is for such. (Code 1993, § 22.1-58)

State Law References: Similar provisions, § 2.2-4340.

Sec. 74-69. Actions on payment bond.

(a) Subject to subsection (b) of this section, any claimant who has performed labor or furnished material in accordance with the contract documents in furtherance of the work provided in any contract for which a payment bond has been given and who has not been paid in full before the expiration of 90 days after the day on which the claimant performed the last of the labor or furnished the last of the materials for which the claimant claims payment may bring an action on such payment bond to recover any amount due for the labor or material and may prosecute such action to final judgment and have execution on the judgment. The obligee named in the bond need not be named a party to such action.

(b) Any claimant who has a direct contractual relationship with any subcontractor from whom the contractor has not required a subcontractor payment bond under section 74-67(f), but who has no contractual relationship, express or implied, with the contractor, may bring an action on the contractor's payment bond only if the claimant has given written notice to such contractor within 180 days from the day on which the claimant performed the last of the labor or furnished the last of the materials for which the claimant claims payment, stating with substantial accuracy the amount claimed and the name of the person for whom the work was performed or to whom the material was furnished. Any claimant who has a direct contractual relationship with a subcontractor from whom the contractor has required a subcontractor payment bond under section 74-67(f), but who has no contractual relationship, express or implied, with such contractor, may bring an action on the subcontractor's payment bond. Notice to the contractor shall be served by registered or certified mail, postage prepaid, in an envelope addressed to such contractor at any place where the contractor's office is regularly maintained for the transaction of business. Claims for sums withheld as retainages with respect to labor performed or materials furnished shall not be subject to the time limitations stated in this subsection.

(c) Any action on a payment bond must be brought within one year after the day on which the person bringing such action last performed labor or last furnished or supplied materials.

(d) Any waiver of the right to sue on the payment bond required by this section shall be void unless it is in writing, signed by the person whose right is waived, and executed after such person has performed labor or furnished material in accordance with the contract documents.

(Code 1993, § 22.1-59)State Law References: Similar provisions, § 2.2-4341.

Sec. 74-70. Alternative forms of security.

(a) In lieu of a bid, payment or performance bond issued pursuant to this article, a bidder may furnish a certified check or cash escrow in the face amount required for the bond.

(b) If approved by the city attorney, a bidder may furnish a personal bond, property bond, or bank or savings institution's letter of credit on certain designated funds in the face amount required for the bid, payment or performance bond. Approval shall be granted only upon a determination that the alternative form of security proffered affords protection to the city equivalent to a corporate surety's bond. (Code 1993, § 22.1-60)

State Law References: Similar provisions, § 2.2-4338.

Sec. 74-71. Competitive negotiation for nonprofessional services.

(a) Conditions for use. Conditions for use of competitive negotiation for nonprofessional services shall be as follows:

(1) Upon a determination made in advance by the director and set forth in writing that competitive sealed bidding is either not practicable or not fiscally advantageous to the public, goods, services, or insurance may be procured by competitive negotiation. The writing shall document the basis for this determination.

(2) Upon a written determination made in advance by the chief administrative officer that competitive negotiation is either not practicable or not fiscally advantageous, insurance may be procured through a licensed agent or broker selected in the following manner, the basis for this determination being documented in writing:

a. Selection shall be made of two or more offerors deemed to be fully qualified and best suited among those submitting proposals, on the basis of the factors involved in the request for proposals, including price if so stated in the request for proposals. Negotiations shall then be conducted with each of the offerors so selected. Price shall be considered, but need not be the sole determining factor. After negotiations have been conducted with each offeror so selected, the director shall select the offeror which, in the director's opinion, has made the best proposal and shall award the contract to that offeror. When the terms and conditions of multiple awards are so provided in the request for proposals, awards may be made to more than one offeror.

b. Should the director determine in writing and in the director's sole discretion that only one offeror is fully qualified or that one offeror is clearly more highly qualified than the others under consideration, a contract may be negotiated and awarded to that offeror.

(3) Construction may be procured only by competitive sealed bidding. However, upon a determination made in advance by the director and set forth in writing by the director that competitive sealed bidding is either not practicable or not fiscally advantageous to the public,

competitive negotiation may be used in the following instances:

a. For the alteration, repair, renovation or demolition of buildings when the contract is not expected to cost more than $500,000.00; and

b. For the construction of highways and any draining, dredging, excavation, grading or similar work upon real property.

(b) Request for proposals. A request for proposals shall be in writing and indicate in general terms what is sought to be procured, specifying the factors which will be used in evaluating the proposal and containing or incorporating by reference the other applicable contractual terms and conditions, including any unique capabilities or qualifications which will be required of the contractor. If appropriate, requests for qualifications can be requested prior to the release of a request for proposals. In such case, only those vendors who have demonstrated that they are qualified may submit a response to the request for proposals.

(c) Public notice. At least ten days prior to the date set for receipt of proposals, public notice shall be given by posting in a public area normally used for posting of public notices or by publication in a newspaper of general circulation in the Richmond area or both. In addition, proposals may be solicited directly from potential contractors.

(d) Receipt of proposals. No proposals shall be handled so as to permit disclosure of the identity of any offeror or the contents of any proposal to competing offerors during the process of negotiation.

(e) Evaluation factors. The request for proposals shall state the relative importance of price and other evaluation factors. One evaluation factor shall be good faith minority business enterprise and emerging small business participation efforts. Such good faith minority business enterprise and emerging small business participation efforts shall comprise 30 percent of the total evaluation. The office of minority business development shall develop criteria to assess an offeror's good faith minority business enterprise and emerging small business participation efforts and shall evaluate the offeror's response based on those criteria. No offeror receiving less than 50 percent of the possible good faith minority business enterprise and emerging small business participation efforts percentage points from the office of minority business development shall receive a contract award under competitive negotiation unless granted a waiver by the chief administrative officer. The chief administrative officer may allow a waiver only when:

(1) No other qualified, willing, and able offerors have submitted proposals; and

(2) Either the director of the office of minority business development certifies that the offeror is unable due to circumstances beyond its control to make good faith minority business enterprise and emerging small business participation efforts that would achieve a higher number of percentage points or the chief administrative officer determines that the city will suffer substantial cost, financial or otherwise, if a waiver is not granted.

(f) Discussion with responsible offerors and revision to proposals. As provided in the request for proposals, discussion may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarification to ensure full understanding of and conformance with the solicitation requirements. Offerors shall be accorded fair and equal treatment with

respect to any opportunity for discussion and revision of proposals, and such revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there shall be no disclosure of the identity of competing offerors or of any information derived from proposals submitted by competing offerors.

(g) Award. Award shall be made to the responsible and responsive offeror whose proposal is determined in writing to be the most advantageous to the city, taking into consideration price and the evaluation factors set forth in the request for proposals. No other factors or criteria shall be used in the evaluation. The contract file shall contain the basis on which the award is made. (Code 1993, § 22.1-61; Ord. No. 2004-360-330, § 1, 12-13-2004; Ord. No. 2006-134-105, § 1, 5-8-2006)

State Law References: Similar provisions, Code of Virginia, § 2.2-4303(C), (D).

Sec. 74-72. Contracting for professional services by competitive negotiation.

(a) Conditions for use. Where the cost of professional services is not expected to exceed $30,000.00 in the aggregate or for the sum of all phases of a contract or project, professional services may be procured by direct negotiation with a contractor deemed by the using agency to be qualified. Where the cost of professional services is expected to exceed $30,000.00 in the aggregate or for the sum of all phases of a contract or project, professional services shall be procured by competitive negotiation.

(b) Competitive negotiation; discussion and award. The director shall engage in individual discussions with two or more offerors deemed fully qualified, responsible and suitable on the basis of initial responses and with emphasis on professional competence to provide the required services. Repetitive informal interviews shall be permissible. The offerors shall be encouraged to elaborate on their qualifications and performance data or staff expertise pertinent to the proposed project, as well as alternative concepts. The request for proposals shall not, however, request that offerors furnish estimates of man-hours or cost for services. At the discussion stage, the director may discuss nonbinding estimates of total project costs, including, but not limited to, life cycle costing and, where appropriate, nonbinding estimates of price for services. Proprietary information from competing offerors shall not be disclosed to the public or to competitors. At the conclusion of discussion, outlined in this subsection, on the basis of evaluation factors published in the request for proposals and all information developed in the selection process to this point, the director shall select in the order of preference two or more offerors whose professional qualifications and proposed services are deemed most meritorious. Negotiations shall then be conducted, beginning with the offeror ranked first. If a contract satisfactory and advantageous to the city can be negotiated at a price considered fair and reasonable, the award shall be made to that offeror. Otherwise, negotiations with the offeror ranked first shall be formally terminated and negotiations conducted with the offeror ranked second, and so on until such a contract can be negotiated at a fair and reasonable price. Should the director determine in writing and in the director's sole discretion that only one offeror is fully qualified or that one offeror is clearly more highly qualified and suitable than any others under consideration, a contract may be negotiated and awarded to that offeror. If appropriate, requests for qualifications can be made prior to the release of a request for proposals. In such cases, only those vendors who have demonstrated that they are qualified may submit a response to the request for proposals.

(c) Architectural or professional engineering services for multiple projects. A contract for architectural or professional engineering services relating to construction projects may be negotiated by the city for multiple projects, provided:

(1) The projects require similar experience and expertise;

(2) The nature of the projects is clearly identified in the request for proposals; and

(3) The contract term is limited to one year or when the cumulative total project fees reach the maximum cost authorized in this subsection, whichever occurs first.

Such contract may be renewable for two additional one-year terms at the option of the city. Under such contract, the fair and reasonable prices, as negotiated, shall be used in determining the cost of each project performed; the sum of all projects performed in one contract term shall not exceed $1,000,000.00; and the project fee of any single project shall not exceed $200,000.00. Any unused amounts from the first contract term shall not be carried forward to the additional term. Competitive negotiations for such contracts may result in awards to more than one offeror provided the request for proposals so states. (Code 1993, § 22.1-63)


Sec. 74-73. Consideration of accessibility of contractors.

In any contract which is to be awarded through competitive negotiation, the request for proposals shall contain, as one factor for evaluation of proposals, the degree of accessibility that the contractor will be able to provide to the city officials who will be administering the contract. (Code 1993, § 22.1-63.1)

Sec. 74-74. Employment discrimination by contractor prohibited; required contract provisions.

The city shall include in every contract of more than $10,000.00 the following provisions:

(1) During the performance of this contract, the contractor agrees as follows:

a. 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.

b. The contractor, in all solicitations or advertisements for employees placed by or on behalf of the contractor, shall state that such contractor is an equal opportunity employer.

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) During the performance of this contract, the contractor shall include the provisions of subsection (1) of this section in every subcontract or purchase order of over $10,000.00, so that the provisions will be binding upon each subcontractor or vendor.

(Code 1993, § 22.1-68)


Sec. 74-75. Obstruction of practices required under chapter.

It shall be unlawful for any person to:

(1) Directly or indirectly cause or coerce or attempt to cause or coerce any person to disregard any practice required to be performed under this chapter.

(2) Directly or indirectly engage in economic reprisal or intimidation or harm or threaten harm to any person or retaliate or interfere with any person because such person is willing to or has complied with any practice required to be performed under this chapter or encouraged others to comply with any section in this chapter or has exercised or attempted to exercise any right conferred in this chapter.

(3) Directly or indirectly cause or coerce or attempt to cause or coerce another person to engage in economic reprisal or intimidation or harm or threaten harm to any person or retaliate against or interfere with any person because such person is willing to or has complied with any practice required to be performed under this chapter or encouraged others to comply with any section in this chapter or has exercised or attempted to exercise any right conferred in this chapter.

(Code 1993, § 22.1-69)

Sec. 74-76. Cancellation of solicitations and rejection of bids or proposals; waiver of informalities.

(a) The director may cancel an invitation for bids, a request for proposals, or any other solicitation and may reject any or all bids or proposals in whole or in part when the director determines that it is in the best interest of the city to do so. The reasons for cancellation or rejection shall be made part of the contract file. The director shall not cancel or reject an invitation for bids, a request for proposals, or any other solicitation, bid or proposal pursuant to this section solely to avoid awarding a contract to a particular responsive and responsible bidder or offeror.

(b) The director may waive informalities in bids. (Code 1993, § 22.1-70)

Secs. 74-77--74-110. Reserved.

ARTICLE III.

DISPOSAL OF SURPLUS PROPERTY

Sec. 74-111. Reports of unused property.

All using agencies shall submit to the director, at such time and in such form as prescribed, reports showing stocks of all supplies, materials and equipment which are no longer used or which have become obsolete, worn out or scrapped. Agencies having surplus, obsolete or unused supplies, materials or equipment shall declare such property surplus to the director by completing a declaration of surplus property form, including quantity, description, location and other details required by the form.

(Code 1993, § 22.1-76)

Sec. 74-112. Transfer of stock to other using agencies.

The director shall have the sole authority to transfer surplus stock to other using agencies. (Code 1993, § 22.1-77)

Sec. 74-113. Sale or exchange.

The director shall have the authority to sell all supplies, materials and equipment that the director determines in writing to be unsuitable for public use. Further, the director shall have the authority to exchange such supplies, materials and equipment for or to trade in such supplies, materials and equipment on new supplies, materials, or equipment. When property is sold in lieu of being traded in on the purchase of new supplies, materials or equipment, the amount received shall be credited to the appropriate city account. Agencies shall list all possible trade-in items on their replacement purchase requisitions. (Code 1993, § 22.1-78)

Sec. 74-114. Donation.

(a) If the director finds in writing that it is impractical to sell or exchange supplies, materials, equipment or vehicles that are unsuitable for public use as provided in section 74-113, the director shall have the authority to donate such supplies, materials, equipment or vehicles to other public bodies or to nonprofit organizations.

(b) The library director shall have the authority to transfer city-owned books that the library director determines to be surplus to private nonprofit organizations that will dispose of such books through a public book sale and return the proceeds to the city for the purchase of additional books or materials for the public library. (Code 1993, § 22.1-78.1; Ord. No. 2005-290-247, § 1, 11-14-2005)

Sec. 74-115. Special restrictions.

(a) Whenever items are surplus, obsolete or unused in one agency, they shall be transferred to another city agency, sold only by the director, or traded in on the purchase of needed supplies, materials or equipment.

(b) Surplus property not transferred to a city agency or traded in shall be sold by competitive bidding or public auction whenever practicable. When determined in writing to be impractical or when no bids or offers are received, the director may sell surplus property on a negotiated basis. Receipts shall be credited to the appropriate income account.

(c) Employees and dependents of employees of the disposing agency and selling agency may purchase city surplus property at uniform prices available to the general public in accordance with the state and local government conflict of interest act, Code of Virginia, § 2.2-3100 et seq. (Code 1993, § 22.1-79)

Secs. 74-116--74-150. Reserved.

ARTICLE IV.

DEBARMENT*__________ * State Law References: Similar provisions, Code of Virginia, § 2.2-4321.__________

Sec. 74-151. Authority to debar or suspend.

After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the chief administrative officer, after consulting with the city attorney, is authorized to debar a person for cause from consideration for award of contracts. The debarment shall be for a period of not more than three years. After consultation with the city attorney, the chief administrative officer is authorized to suspend a person from consideration for award of contracts if there is probable cause to believe that the person has engaged in any activity which might lead to debarment. The suspension shall be for a period not exceeding three months. The causes for debarment include the following:

(1) Conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract or in the performance of such contract or subcontract;

(2) Conviction under state and federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a city contractor;

(3) Conviction under state or federal antitrust statutes arising out of the submission of bids or proposals;

(4) Violation of contract provisions, as follows, of a character which is regarded by the chief administrative officer to be so serious as to justify debarment action:

a. Deliberate failure without good cause to perform in accordance with specifications or within the time limit provided in the contract; or

b. A recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts, provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment; and

(5) Any other cause that the chief administrative officer determines to be so serious and compelling as to affect responsibility as a city contractor, including debarment by another governmental entity for any cause in this chapter and for violation of the ethical standards set forth in this chapter.

(Code 1993, § 22.1-91; Ord. No. 2004-360-330, § 1, 12-13-2004)

Sec. 74-152. Decision to debar or suspend.

The chief administrative officer shall issue a written decision to debar or suspend pursuant to this article. The decision shall state the reasons for the action taken and shall inform the debarred or suspended person involved of such person's rights concerning judicial or administrative review. (Code 1993, § 22.1-92; Ord. No. 2004-360-330, § 1, 12-13-2004)

Sec. 74-153. Notice of decision.

A copy of the decision required by section 74-152 shall be mailed or otherwise furnished immediately to the debarred or suspended person. (Code 1993, § 22.1-93)

Sec. 74-154. Finality of decision.

A decision under section 74-152 shall be final and conclusive, unless the debarred or suspended person appeals the decision as provided in section 74-193 for administrative appeals or, in the alternative, by instituting legal action as provided in section 74-194. (Code 1993, § 22.1-94)

Secs. 74-155--74-185. Reserved.

ARTICLE V.

APPEALS AND REMEDIES FOR PROTESTS*__________ * State Law References: Similar provisions, Code of Virginia, § 2.2-4365.__________

Sec. 74-186. Ineligibility of bidder, offeror or contractor.

(a) Any bidder, offeror or contractor refused permission to participate or disqualified from participating in public contracts shall be notified in writing. Such notice shall state the reasons for the action taken. This decision shall be final unless the bidder, offeror or contractor appeals the decision as provided in section 74-193 for administrative appeals or, in the alternative, by instituting legal action as provided in section 74-194.

(b) If, upon appeal, it is determined that the action taken was not an honest exercise of discretion, but rather was arbitrary or capricious or not in accordance with the state constitution or any applicable state law or regulation, then the sole relief shall be restoration of eligibility. (Code 1993, § 22.1-106)

Sec. 74-187. Appeal of denial of withdrawal of bid.

(a) A decision denying withdrawal of a bid under section 74-57 on withdrawal of bid due to error shall be final and conclusive unless the bidder appeals the decision as provided in section 74-193 for administrative appeals or, in the alternative, by instituting legal action as provided in section 74-194.

(b) If no bid bond was posted, a bidder refused withdrawal of a bid under section 74-57, prior to appealing, shall deliver to the director a certified check or cash bond in the amount of the difference between the bid sought to be withdrawn and the next lowest bid. Such security shall be released only upon a final determination that the bidder was entitled to withdraw the bid.

(c) If, upon appeal, it is determined that the decision refusing withdrawal of the bid was not an honest exercise of discretion, but rather was arbitrary or capricious or not in accordance with the state constitution, any applicable state law or regulation or the terms and conditions of the invitation for bids, the sole relief shall be withdrawal of the bid. (Code 1993, § 22.1-107)

Sec. 74-188. Determination of nonresponsibility.

(a) Following public opening and announcement of bids received on an invitation for bids, the city shall evaluate the bids in accordance with section 74-58. At the same time, the city shall determine whether the apparent low bidder is responsible. If the city so determines, it may proceed with an award in accordance with section 74-59. If the city determines that the apparent low bidder is not responsible, it shall proceed as follows:

(1) Prior to the issuance of a written determination of nonresponsibility, the city shall:

a. Notify the apparent low bidder in writing of the results of the evaluation;

b. Disclose the factual support for the determination; and

c. Allow the apparent low bidder an opportunity to inspect any documents which relate to the determination, if so requested by the bidder within five business days after receipt of the notice.

(2) Within ten business days after receipt of the notice, the bidder may submit rebuttal information challenging the evaluation. The city shall issue its written determination of nonresponsibility based on all information in the possession of the city, including any rebuttal information, within five business days of the date the city received such rebuttal information. At the same time, the city shall notify the bidder in writing of its determination.

(3) Such notice shall state the basis for the determination, which shall be final unless the bidder appeals the decision as provided in section 74-193 for administrative appeals or, in the alternative, by instituting legal action as provided in section 74-194.

This subsection shall not apply to procurements involving the prequalification of bidders and the rights of any potential bidders under such prequalification to appeal a decision that such bidders are not responsible.

(b) If, upon appeal, it is determined that the decision of the city was not an honest exercise of

discretion, but rather was arbitrary or capricious or not in accordance with the state constitution, any applicable state law or regulation or the terms and conditions of the invitation for bids and the award of the contract in question has not been made, the sole relief shall be a finding that the bidder is a responsible bidder for the contract in question or a directed award as provided in section 74-193(a) or both. If it is determined that the decision of the city was not an honest exercise of discretion, but rather was arbitrary or capricious or not in accordance with the state constitution, any applicable state law or regulation or the terms and conditions of the invitation for bids and an award of the contract has been made, the relief shall be as set forth in section 74-189(b).

(c) A bidder contesting a determination that the bidder is not a responsible bidder for a particular contract shall proceed under this section and may not protest the award or proposed award under section 74-189.

(d) Nothing contained in this section shall be construed to require the city, when procuring by competitive negotiation, to furnish a statement of the reasons why a particular proposal was not deemed to be the most advantageous. (Code 1993, § 22.1-107.1)

Sec. 74-189. Protest of award or decision to award.

(a) Any bidder or offeror may protest the award or decision to award a contract by submitting such protest in writing to the director no later than ten calendar days after the award or the announcement of the decision to award, whichever occurs first. The director shall not be required to consider protests not properly addressed and delivered to the director within the ten-calendar-day period. Any potential bidder or offeror on a contract negotiated on an only practical source or emergency basis who desires to protest the award or decision to award such contract shall submit such protest in the same manner no later than ten calendar days after the notice of such contract. However, if the protest of any actual or potential bidder or offeror depends in whole or in part upon information contained in public records pertaining to the procurement transaction which are subject to inspection under section 74-5, the time within which the protest must be submitted shall expire ten calendar days after those records are available for inspection by such bidder or offeror under section 74-5 or at such later time as provided in this section. No protest shall be for a claim that the selected bidder or offeror is not a responsible bidder or offeror. The written protest shall include the basis for the protest and the relief sought. The director shall issue a decision in writing within ten calendar days stating the reasons for the action taken. This decision shall be final unless the bidder or offeror appeals as provided in section 74-193 for administrative appeals or, in the alternative, by instituting legal action as provided in section 74-194. Nothing in this subsection shall be construed to permit a bidder or offeror to challenge the validity of the terms or conditions of the invitation for bids or request for proposals.

(b) If, prior to an award, it is determined that the decision to award was not an honest exercise of discretion, but rather was arbitrary or capricious or not in accordance with the state constitution, applicable state law, or the terms and conditions of the invitation for bids, the sole relief shall be a finding to that effect. The director shall cancel the proposed award or revise it to comply with the law. If, after an award, it is determined that an award of a contract was not an honest exercise of discretion, but rather was arbitrary or capricious or not in accordance with the state constitution, applicable state law, or the terms and conditions of the invitation for bids, the sole relief shall be as provided in subsection (c) of this section. Where the award has been made, but performance has not begun, the performance of the contract may be enjoined. Where the award has been made

and performance has begun, the chief administrative officer may declare the contract void upon a finding that this action is in the best interest of the public. Where a contract is declared void, the performing contractor shall be compensated for the cost of performance up to the time of such declaration. In no event shall the performing contractor be entitled to lost profits.

(c) If the procurement review board established by section 74-193(c)(1) determines, after a hearing held following reasonable notice to all bidders or offerors, that there is probable cause to believe that a decision to award was based on fraud or corruption or on an act in violation of article VIII of this chapter, the procurement review board may enjoin the award of the contract to a particular bidder or offeror. (Code 1993, § 22.1-108; Ord. No. 2004-360-330, § 1, 12-13-2004)

Sec. 74-190. Effect of appeal upon contract.

Pending final determination of a protest or appeal pursuant to this article, the validity of a contract awarded and accepted in good faith in accordance with this chapter shall not be affected by the fact that a protest or appeal has been filed. (Code 1993, § 22.1-109)

Sec. 74-191. Stay of award during protest.

An award need not be delayed for the period allowed a bidder or offeror to protest, but if a timely protest is filed as provided in section 74-189 or a timely legal action is filed as provided in section 74-194, no further action to award the contract will be taken unless there is a written determination that proceeding without delay is necessary to protect the public interest or unless the bid or offer would expire. (Code 1993, § 22.1-110)

Sec. 74-192. Contractual disputes.

(a) Contractual claims, whether for money or other relief, shall be submitted in writing to the director no later than 60 calendar days after final payment; however, written notice of the contractor's intention to file such claim shall have been given at the time of the occurrence or beginning of the work upon which the claim is based. Nothing in this section shall preclude a contract from requiring submission of an invoice for final payment within a certain time after completion and acceptance of the work or acceptance of the goods. Pendency of claims shall not delay payment of amounts agreed due in the final payment.

(b) A procedure for consideration of contractual claims shall be included in each contract. Such procedure, which may be incorporated into the contract by reference, shall establish a time limit for a final decision in writing by the director.

(c) A contractor may not invoke administrative procedures as provided in section 74-193 or institute legal action as provided in section 74-194 prior to receipt of the decision on the claim, unless the director fails to render such decision within the time specified in the contract.

(d) The decision of the director shall be final and conclusive unless the contractor appeals within 30 calendar days of the date of the final decision on the claim by the director as provided in section 74-193 for administrative appeals or, in the alternative, by instituting legal action as provided in section 74-194.

(e) Nothing in this section shall be construed to authorize or permit any contractor pursuing, by any available procedure, an appeal of a contractual claim or dispute to cease performance of a contract while such claim or dispute is pending. (Code 1993, § 22.1-111)

Sec. 74-193. Administrative appeals procedure.

(a) An administrative appeals procedure is hereby established for hearing protests of a decision to award or an award, appeals from refusals to allow withdrawal of bids, appeals from disqualifications and determinations of nonresponsibility, appeals from debarments or suspensions, and appeals from decisions on disputes arising during the performance of a contract, or any of these.

(b) Procedures for the initial administrative appeal shall be as follows:

(1) Any act or decision of the city listed in subsection (a) of this section may be appealed or protested by writing to the director within ten calendar days of the act or decision at issue. The writing must indicate the basis for the protest and the relief sought.

(2) The director must send a written response to the appeal or protest within ten calendar days of the director's receipt of the appeal or protest.

(3) If the decision of the director is not satisfactory to the offeror, bidder or contractor, the offeror, bidder or contractor has ten calendar days from the receipt of the director's decision to request, in writing, a hearing before the procurement review board. Such letter of request shall be addressed and delivered to the office of the director of procurement services.

(c) Procedures for hearings shall be as follows:

(1) A procurement review board shall be established, to be comprised of three disinterested individuals, each appointed by the director for one-year terms. At the director's discretion, the director may reappoint members for additional one-year terms. The members of the procurement review board shall not be employees of the city.

(2) From the receipt of the letter requesting a hearing, the office of the director of procurement services has ten calendar days to inform the offeror, bidder or contractor of the date, time and location of the hearing. Notice of the hearing must be sent at least ten calendar days prior to the hearing date.

(3) At the hearing before the procurement review board, there shall be an opportunity for both the offeror, bidder or contractor and the city to present pertinent information.

(4) The procurement review board shall issue a written decision containing findings of fact. The findings of fact shall be final and conclusive and shall not be set aside unless they are:

a. Fraudulent, arbitrary or capricious;

b. So grossly erroneous as to imply bad faith; or

c. For denial of prequalification of a potential construction bidder;

such findings were not based upon the criteria for denial of prequalification set forth in section 74-50. No determination on an issue of law shall be final if appropriate legal action pursuant to section 74-194 is instituted in a timely manner.

(d) Any party to the administrative appeals procedure, including the city, shall be entitled to institute judicial review if such action is brought within 30 calendar days of receipt of the written decision of the procurement review board. (Code 1993, § 22.1-112)

Sec. 74-194. Legal actions.

(a) A bidder or offeror, actual or prospective, who is refused permission or disqualified from participating in bidding or competitive negotiations or who is determined not to be a responsible bidder or offeror for a particular contract, may bring an action in the circuit court of the city challenging that decision, which shall be reversed only if the petitioner establishes that the decision was not an honest exercise of discretion, but rather was arbitrary or capricious or not in accordance with the state constitution, any applicable state law or regulation, or the terms or conditions of the invitation for bids or request for proposals or, for denial of prequalification of a potential construction bidder, that the decision to deny prequalification was not based upon the criteria for denial of prequalification set forth in section 74-50(g). If the apparent low bidder, having been previously determined by the city to be not responsible, is found by the court to be a responsible bidder, the court may direct the city to award the contract, forthwith, to such bidder in accordance with the requirements of this section and the invitation for bids. Section 74-189(b) shall apply to any such award directed by the court.

(b) A bidder denied withdrawal of a bid under section 74-57 may bring an action in the circuit court of the city challenging that decision, which shall be reversed only if the bidder establishes that the decision of the city was not an honest exercise of discretion, but rather was arbitrary or capricious or not in accordance with the state constitution, any applicable state law or regulation, or the terms and conditions of the invitation for bids.

(c) A bidder, offeror or contractor may bring an action in the circuit court of the city challenging a proposed award or the award of a contract, which shall be reversed only if the petitioner establishes that the proposed award or the award is not an honest exercise of discretion, but rather is arbitrary, capricious or not in accordance with the state constitution, applicable state law or regulation, or the terms and conditions of the invitation for bids or request for proposals.

(d) If injunctive relief is granted, the court, upon request of the city, shall require the posting of reasonable security to protect the city.

(e) A contractor may bring an action involving a contract dispute with the city in the circuit court of the city.

(f) A bidder, offeror or contractor need not utilize administrative procedures as provided in section 74-193, but if those procedures are invoked by the bidder, offeror or contractor, the procedures shall be exhausted prior to instituting legal action concerning the same procurement transaction unless the city council adopts a resolution providing otherwise.

(g) Nothing in this section shall be construed to prevent the city from instituting legal action against a contractor. (Code 1993, § 22.1-113)

Sec. 74-195. Alternative dispute resolution.

The city may enter into agreements to submit disputes arising from contracts entered into pursuant to this chapter to arbitration and to utilize mediation and other alternative dispute resolution procedures; however, such procedures entered into by the city shall be nonbinding. (Code 1993, § 22.1-114)

Secs. 74-196--74-230. Reserved.

ARTICLE VI.

DEVELOPMENT ASSISTANCE TO MINORITY BUSINESS ENTERPRISES AND EMERGING SMALL BUSINESSES

Sec. 74-231. Purpose.

The purpose of this article is to promote the wider participation by minority business enterprises and emerging small businesses in public contracts, either as general contractors or subcontractors, by assisting such businesses in their growth and development. (Code 1993, § 22.1-126)

Sec. 74-232. Authority to establish programs to facilitate development and expand participation in public procurement.

In addition to the programs set forth in this article, the office of minority business development may establish other programs consistent with all provisions of this chapter to facilitate the growth, development and participation of minority business enterprises and emerging small businesses in public procurement transactions. Such programs shall be in writing and may include cooperation with the state department of minority business enterprise, the United States Small Business Administration and other public or private agencies. (Code 1993, § 22.1-127; Ord. No. 2006-134-105, § 1, 5-8-2006)

Sec. 74-233. Sheltered market program.

The office of minority business development may establish a sheltered market program for minority business enterprises and emerging small businesses. Any such sheltered market program shall be designed to

assist in the growth and development of minority business enterprises and emerging small businesses by providing them with the opportunity to compete against similar firms for certain contracts. The sheltered market program shall at a minimum require the following:

(1) That not more than 50 percent of all contracts procured by competitive sealed bidding and competitive negotiation as required by this chapter with a value under $200,000.00 be procured only from minority business enterprises and emerging small businesses qualifying as participants in the sheltered market program;

(2) That all contracts procured under small purchase or other provisions of this chapter that exempt such contracts from competitive sealed bidding and competitive negotiation requirements first be solicited solely from participants in the sheltered market program offered by the city where there are qualified, willing and able participants;

(3) Each participant in the sheltered market program to submit to a business needs assessment and to obtain technical assistance offered by a technical assistance program in those areas where such assistance is shown to be necessary; and

(4) Any participant in the sheltered market program serving as a prime contractor for a city contract to offer all subcontracting opportunities to other participants in the sheltered market program prior to hiring other businesses as subcontractors.

(Code 1993, § 22.1-128; Ord. No. 2006-134-105, § 1, 5-8-2006)

Secs. 74-234--74-265. Reserved.

ARTICLE VII.

UTILIZATION OF MINORITY BUSINESS ENTERPRISES AND EMERGING SMALL BUSINESSES

DIVISION 1.

GENERALLY


The purpose of this article is to increase the number of minority business enterprises and emerging small businesses that participate meaningfully in all contracts. To this end, the city shall use good faith efforts and shall require good faith efforts by all parties who engage in contracting with the city to the following ends:

(a) To stimulate the creation and development of minority business enterprise and emerging small business contractors and subcontractors, and to advance in reasonable and responsible ways, and deliberately and consistently over the longterm, their entrance into and participation in contracts;

(b) To encourage, in reasonable and responsible ways and deliberately and consistently over the longterm, the participation of minority and local disadvantaged individuals at higher skill and responsibility levels within non-minority firms engaged in contracting and subcontracting; and

(c) To encourage voluntary efforts by the private sector aimed at increasing the participation of minority business enterprises and emerging small businesses in contracts.

(Code 1993, § 22.1-136)

Sec. 74-267. Covered contracts.

The city, in awarding contracts to its contractors, including suppliers, for the sale and furnishing of supplies, materials and equipment, for providing contractual services, and for writing and furnishing policies of insurance and surety bonds in which the city is the principal insured or party for whom such bond is written and for which policy of insurance or bond the premium charged is billed to the city, shall strive to obtain a minimum of 20 percent of same from minority business enterprises and emerging small businesses in the annual aggregate expenditure for such contracts and services. (Code 1993, § 22.1-137)

Sec. 74-268. Applicability to non-city recipients of city funds.

To the maximum extent permitted by applicable law, all non-city recipients of more than $100,000.00 of city funds in a fiscal year shall comply in all respects with the requirements of this article in the expenditure of such funds. Further, such recipients shall be subject to an audit, at their sole expense, by the city auditor of their compliance with the requirements of this article. The mayor shall ensure that each ordinance he proposes which appropriates city funds to such recipients contains the requirements of this section as conditions of the appropriation. (Code 1993, § 22.1-138; Ord. No. 2004-360-330, § 1, 12-13-2004)

Sec. 74-269. Discrimination prohibited.

In the solicitation or awarding of contracts, the city shall not discriminate because of race, religion, color, sex, or national origin of the bidder or offeror. (Code 1993, § 22.1-139)

Sec. 74-270. Official goals for contracting with minority business enterprises and emerging small businesses.

(a) It shall be the official goal of the city to increase the dollar value of all contracts awarded to minority business enterprise and emerging small business contractors and subcontractors to the highest level that is reasonably achievable for any particular field of contracting.

(b) It is acknowledged that the availability of minority business enterprise and emerging small business contractors and subcontractors may be lower in some areas than in others and that this lack of availability may have an impact on the degree to which contractors can reasonably comply with this policy. Therefore, the chief administrative officer shall take the current availability of minority business enterprise and emerging small business contractors and subcontractors, in addition to other factors, into consideration in the implementation and enforcement of this policy. (Code 1993, § 22.1-140; Ord. No. 2004-360-330, § 1, 12-13-2004)

Sec. 74-271. Rules and regulations.

The director, in cooperation with the office of minority business development, shall be authorized to promulgate rules and regulations to implement this article. (Code 1993, § 22.1-141; Ord. No. 2006-134-105, § 1, 5-8-2006)

Secs. 74-272--74-300. Reserved.

DIVISION 2.

ENFORCEMENT AND ACCOUNTABILITY

Sec. 74-301. Debarment of contractors for improper activities.

Any contractor, bidder or offeror, or any principal thereof or person associated therewith, found to have engaged in substantial and intentional misrepresentation concerning either good faith minority business enterprise and emerging small business participation efforts or minority ownership status shall be debarred from any city contracting for a period of two years. This debarment shall also extend to any successor firm substantially controlled or managed, whether directly or indirectly, by any officers of or persons associated with the debarred bidder, offeror or contractor. The chief administrative officer or a designee thereof shall make this determination and shall report any such debarment in writing to the city council. (Code 1993, § 22.1-142; Ord. No. 2004-360-330, § 1, 12-13-2004)

Sec. 74-302. Racial discrimination in construction contract bonding and insurance.

In construction contracting, if any person is found by the chief administrative officer or a designee to have engaged in discrimination on the basis of race in the granting of bonds or insurance to persons who contract with or desire to contract with the city, or to persons who receive subcontracts or desire to receive a subcontract in connection with a city contract, the person shall be deemed unqualified to submit a bond or insurance for any city construction contract unless and until the chief administrative officer or a designee thereof determines that the discrimination has been purged and that adequate assurances have been made that it will not recur. Any determination by the chief administrative officer of a violation of this section shall be reported in writing to the city council. (Code 1993, § 22.1-143; Ord. No. 2004-360-330, § 1, 12-13-2004)

Sec. 74-303. Chief administrative officer to enforce article and to make reports to city council.

(a) The chief administrative officer shall take all steps necessary to ensure that all agency heads, project managers and other officers and employees of the city comply fully with the requirements of this article. The failure of such officers and employees to comply with the requirements of this article shall be deemed grounds for disciplinary action, up to and including termination, pursuant to applicable personnel policies. Further, the chief administrative officer shall monitor the compliance with this article by any non-city recipient of more than $100,000.00 in city funds in a fiscal year.

(b) At the conclusion of each fiscal year, the chief administrative officer shall report to the city council on the number and proportion of minority business enterprise, emerging small business and woman

business enterprise contractors and subcontractors located in the Richmond standard metropolitan statistical area and on the level of minority business enterprise, emerging small business and woman business enterprise participation in contracts that have been awarded by each agency of city government and by each non-city recipient of more than $100,000.00 in city funds during that fiscal year, both as to prime contractors and as to subcontractors. Such report shall include, but not be limited to, the following:

(1) The level of such minority business enterprise, emerging small business and woman business enterprise participation in city contracts by type of contract (i.e., professional services, nonprofessional services, construction, commodities or goods, etc.);

(2) The location of all city contractors categorized by type of contract (i.e., professional services, nonprofessional services, construction, commodities or goods, etc.);

(3) The extent to which minority business enterprises participating as contractors or subcontractors in contracts awarded by the city have their places of business in the city and, if not, where those minority business enterprises have their places of business; and

(4) A list of all waivers from the emerging small business and minority business enterprise participation requirements of this chapter granted by the chief administrative officer indicating the reasons for each.

(c) For the purposes of this subsection, the term "woman business enterprise" means a business that cannot qualify as a minority business enterprise or as an emerging small business as defined in section 74-4, at least 51 percent of which is owned and controlled or 51 percent woman-owned and operated by a woman or women or, in the case of a stock corporation, at least 51 percent of the stock of which is owned and controlled by a woman or women. (Code 1993, § 22.1-144; Ord. No. 2004-360-330, § 1, 12-13-2004)

Sec. 74-304. Renewal of existing contracts.

No contract shall be renewed unless the contractor has first reported to the chief administrative officer or a designee thereof on the good faith minority business enterprise and emerging small business participation efforts which have been made during the contract period. (Code 1993, § 22.1-145; Ord. No. 2004-360-330, § 1, 12-13-2004)

Sec. 74-305. Chief administrative officer to provide sufficient staff.

The chief administrative officer shall take all necessary steps to provide, on an ongoing basis, sufficient staff to the department of procurement services and the office of minority business development to ensure that proper records and statistics are gathered and maintained to determine the effectiveness of the city's efforts to assist the development and use of minority business enterprises and emerging small businesses. The chief administrative officer shall also provide sufficient staff to monitor and enforce contract compliance and to ensure that the requirements and objectives of this chapter are met. (Code 1993, § 22.1-146; Ord. No. 2004-360-330, § 1, 12-13-2004; Ord. No. 2006-134-105, § 1, 5-8-2006)

Secs. 74-306--74-340. Reserved.

ARTICLE VIII.

ETHICS IN PUBLIC CONTRACTING


(a) The provisions of this article supplement, but shall not supersede, other provisions of law including, but not limited to, the state and local government conflict of interests act, Code of Virginia, § 2.2-3100 et seq.; the Virginia Governmental Frauds Act, Code of Virginia, § 18.2-498.1 et seq.; and Code of Virginia, §§ 18.2-438 et seq. and 18.2-446 et seq.

(b) The provisions of this article apply notwithstanding the fact that the conduct described may not constitute a violation of the state and local government conflict of interests act. (Code 1993, § 22.1-151)


Sec. 74-342. Definitions.

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Immediate family means a spouse, children, parents, brothers and sisters, and any other person living in the same household as the employee.

Official responsibility means administrative or operating authority, whether immediate or final, to initiate, approve, disapprove or otherwise affect a procurement transaction or any claim resulting therefrom.

Pecuniary interest arising from the procurement means a personal interest in a contract as defined in the state and local government conflict of interests act, Code of Virginia, § 2.2-3100 et seq.

Procurement transaction means all functions that pertain to the obtaining of any goods, services or construction, including description of requirements, selection and solicitation of sources, preparation and award of the contract, and all phases of contract administration.

Public employee means any person employed by the city, including elected officials or appointed members of the city council. (Code 1993, § 22.1-152)

Cross References: Definitions generally, § 1-2.State Law References: Similar provisions, Code of Virginia, § 2.2-4368.

Sec. 74-343. Proscribed participation by public employees in procurement transaction.

Except as may be specifically allowed by Code of Virginia, § 2.2-3112(A)(2)--(4), no public employee having official responsibility for a procurement transaction shall participate in that transaction on behalf of the city when the employee knows that:

(1) The employee is contemporaneously employed by a bidder, offeror or contractor involved in the procurement transaction;

(2) The employee, the employee's partner, or any member of the employee's immediate family holds a position with a bidder, offeror or contractor such as an officer, director, trustee, partner, or the like or is employed in a capacity involving personal and substantial participation in the procurement transaction, or owns or controls an interest of more than five percent;

(3) The employee, the employee's partner, or any member of the employee's immediate family has a pecuniary interest arising from the procurement transaction; or

(4) The employee, the employee's partner, or any member of the employee's immediate family is negotiating, or has an arrangement concerning, prospective employment with a bidder, offeror or contractor.

(Code 1993, § 22.1-153)State Law References: Similar provisions, Code of Virginia, § 2.2-4369.

Sec. 74-344. Solicitation or acceptance of gifts.

No public employee having official responsibility for a procurement transaction shall solicit, demand, accept, or agree to accept from a bidder, offeror, contractor or subcontractor any payment,

loan, subscription, advance, deposit of money, services or anything of more than nominal or minimal value, present or promised, unless consideration of substantially equal or greater value is exchanged. The city may recover the value of anything conveyed in violation of this section. (Code 1993, § 22.1-154)

State Law References: Similar provisions, Code of Virginia, § 2.2-4371(a).

Sec. 74-345. Disclosure of subsequent employment.

No public employee or former public employee having official responsibility for procurement transactions shall accept employment with any bidder, offeror or contractor with whom the employee or former employee dealt in an official capacity concerning procurement transactions for a period of one year from the cessation of employment by the city unless the employee or former employee provides written notification to the chief administrative officer prior to commencement of employment by that bidder, offeror or contractor. (Code 1993, § 22.1-155; Ord. No. 2004-360-330, § 1, 12-13-2004)


Sec. 74-346. Gifts by bidders, offerors, contractors or subcontractors.

No bidder, offeror, contractor or subcontractor shall confer upon any public employee having official responsibility for a procurement transaction any payment, loan, subscription, advance, deposit of money, services or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is exchanged. (Code 1993, § 22.1-156)

State Law References: Similar provisions, Code of Virginia, § 2.2-4371(b).

Sec. 74-347. Kickbacks.

(a) No contractor or subcontractor shall demand or receive from any of his or her suppliers or his or her subcontractors, as an inducement for the award of a subcontract or order, any payment, loan, subscription, advance, deposit of money, services or anything, present or promised, unless consideration of substantially equal or greater value is exchanged.

(b) No subcontractor or supplier shall make or offer to make kickbacks as described in this section.

(c) No person shall demand or receive any payment, loan, subscription, advance, deposit of money, services or anything of value in return for an agreement not to compete on a public contract.

(d) If a subcontractor or supplier makes a kickback or other prohibited payment as described in this section, the amount thereof shall be conclusively presumed to have been included in the price of the subcontract or order and ultimately borne by the city and will be recoverable from both the maker and recipient. Recovery from one offending party shall not preclude recovery from other offending parties. (Code 1993, § 22.1-157)


Sec. 74-348. Participation in bid preparation; limitation on submitting bid for same procurement.

(a) No person who, for compensation, prepares an invitation for bids or request for proposals for or on behalf of the city shall submit a bid or proposal for that procurement or any portion thereof, or disclose to any bidder or offeror information concerning the procurement which is not available to the public. However, the chief administrative officer may permit such person to submit a bid or proposal for that procurement or any portion thereof if the city determines that the exclusion of such person would limit the number of potential qualified bidders or offerors in a manner contrary to the best interest of the city. This determination shall be stated in writing and kept as part of the procurement's records.

(b) For the purpose of this section only, the term "prepares" shall include but not be limited to:

(1) Serving as a director or deputy director of the agency which has initiated the procurement;

(2) Serving as the director of procurement services after the department of procurement services has received information on an agency's intent to procure;

(3) Serving as the procurement manager for the agency which has initiated the procurement;

(4) Serving as the procurement officer in charge of the procurement;

(5) Assisting in the development of specifications for invitations for bids or requests for proposals;

(6) Attending an evaluation committee meeting that is closed to the public;

(7) Voting on or scoring a bid or proposal; or

(8) Any other participation in the procurement process which could lead to unfair advantage.

(c) The determination of disqualification under this section shall be made by the chief administrative officer.

(d) A contractor submitting a bid or proposal may appeal a determination of disqualification under this section by following the administrative appeals procedure as provided in section 74-193 or, in the alternative, instituting legal action as provided in section 74-194. (Code 1993, § 22.1-157.1; Ord. No. 2004-360-330, § 1, 12-13-2004)


Sec. 74-349. Purchase of building materials, etc., from architect or engineer prohibited.

(a) No building materials, supplies or equipment for any building or structure constructed by or for the city shall be sold by or purchased from any person employed as an independent contractor by the city to furnish architectural or engineering services, but not construction, for such building or structure, or from any partnership, association or corporation in which such architect or engineer has a personal interest as defined in Code of Virginia, § 2.2-3101.

(b) No building materials, supplies or equipment for any building or structure constructed by or for the city shall be sold by or purchased from any person who has provided or is currently providing design services specifying a sole source for such materials, supplies or equipment to be used in such building or structure to the independent contractor employed by the city to furnish architectural or engineering services in which such person has a personal interest as defined in Code of Virginia, § 2.2-3101.

(c) The provisions of subsections (a) and (b) of this section shall not apply in cases of emergency. (Code 1993, § 22.1-158)


Sec. 74-350. Certification of compliance required; penalty for false statements.

(a) The city may require public employees having official responsibility for procurement transactions in which they participated to annually submit for such transactions a written certification that they complied with the provisions of this article.

(b) Any public employee required to submit a certification as provided in subsection (a) of this section who knowingly makes a false statement in such certification shall be punished as provided in section 74-352. (Code 1993, § 22.1-159)


Sec. 74-351. Misrepresentations prohibited.

No public employee having official responsibility for a procurement transaction shall:

(1) Knowingly falsify, conceal, or misrepresent a material fact;

(2) Knowingly make any false, fictitious or fraudulent statements or representations; or

(3) Make or use any false writing or document knowing the writing or document to contain any false, fictitious or fraudulent statement or entry.

(Code 1993, § 22.1-160)State Law References: Similar provisions, Code of Virginia, § 2.2-4376.

Sec. 74-352. Penalty for violation.

Willful violation of any provision of this article shall constitute a class 1 misdemeanor. Upon conviction, any public employee, in addition to any other fine or penalty provided by law, shall forfeit his or her employment. (Code 1993, § 22.1-161)


Secs. 74-353--74-400. Reserved.

ARTICLE IX.

PUBLIC-PRIVATE PARTNERSHIPS

Sec. 74-401. Purpose; definitions; application.

(a) Purpose. This article establishes procedures for the implementation by the city of the Public-Private Transportation Act of 1995, codified in Chapter 22 of Title 56 of the Code of Virginia (1950), as amended, and the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Chapter 22.1 of Title 56 of the Code of Virginia (1950), as amended. Pursuant to state law, this article allows the city to create public-private partnerships for the development of a wide range of projects for public use if the city determines that (i) there is a need for the project and (ii) private involvement may provide the project to the public in a timely or cost-effective fashion.

(b) Definitions. Terms used in this article shall have the meanings ascribed to them by sections 56-557 or 56-575.1 of the Code of Virginia (1950), as amended, or section 74-4 of this Code, unless the context clearly indicates a different meaning. The terms "project" or "qualifying project" as used in this article, shall also refer to qualifying transportation facilities unless the context clearly indicates a different meaning.

(c) Application. This article applies only to projects defined as "qualifying transportation facilities" under section 26-557 of the Code of Virginia (1950), as amended, or "qualifying projects" under section 56-575.1 of the Code of Virginia (1950), as amended. Such projects include the following:

(1) Any education facility, including, but not limited to a school building, any functionally related and subordinate facility and land to a school building (including any stadium or other facility primarily used for school events), and any depreciable property provided for use in a school facility that is operated as part of the public school system or as an institution of higher education;

(2) Any building or facility for principal use by any public entity;

(3) Any improvements, together with equipment, necessary to enhance public safety and security of buildings to be principally used by a public entity;

(4) Utility and telecommunications and other communications infrastructure;

(5) A recreational facility;

(6) Technology infrastructure, including, but not limited to, telecommunications, automated data processing, word processing and management information systems, and related information, equipment, goods and services; or

(7) Any road, bridge, tunnel, overpass, ferry, airport, mass transit facility, vehicle parking facility, port facility or similar commercial facility used for the transportation of persons or goods, together with any other property that is needed to operate the transportation facility, acquired, constructed, improved, maintained and/or operated by a private entity pursuant to the Public-Private Transportation Act of 1995, codified in Chapter 22 of Title 56 of the Code of Virginia (1950), as amended.

Nothing in this article shall be interpreted or construed to affect the city's duty to comply with any other applicable law not in conflict with the Public-Private Transportation Act of 1995, codified in Chapter 22 of Title 56 of the Code of Virginia (1950), as amended or the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Chapter 22.1 of Title 56 of the Code of Virginia (1950), as amended.

(d) Cooperative process. This subsection acknowledges that some projects may involve more than one responsible public entity and that the city may learn of its status as a responsible public entity for a project after proposals have been submitted to or a process already begun by another responsible public entity for that project. Notwithstanding any provision of this article to the contrary, the city may, at its sole discretion, when it determines that it is one of multiple responsible public entities for a project, enter into a cooperative process with other responsible public entities for that project using procedures adopted by another responsible public entity pursuant to applicable state law. The city may enter into such a cooperative process for a project at any phase in the other responsible public entity's process only if:

(1) A review committee convened pursuant to section 74-402(f) determines in writing that:

a. The city is one of multiple responsible public entities for a project;

b. The process the city seeks to join and the procedures governing that process comply with applicable state law; and

c. It is in the best interests of the city to join in a cooperative process with one or more other responsible public entities for that project; and

(2) The other responsible public entity agrees to allow the city to participate fully as a responsible public entity in such process;

(3) All proposers for that project provide the city with a copy of all documents and other information

they have submitted to the other responsible public entity; and

(4) The proposer pays to the city all proposal review fees that section 74-404(b) would require the proposer to pay if the proposer had initially submitted his proposal to the city.

(Code 1993, § 22.1-170; Ord. No. 2004-27-41, § 1, 2-23-2004)

Sec. 74-402. Proposal submission--Generally.

(a) In general. Proposals may be either solicited by the city or submitted to the city by a private entity on an unsolicited basis. In general, proposals should provide a concise description of the proposer's capabilities to complete the proposed qualifying project and the benefits to be derived from the project by the city. The city will consider project benefits occurring during the construction, renovation, expansion or improvement phase and during the life cycle of the project. Each proposal shall identify specifically or conceptually any facility, building, infrastructure or improvement included in that proposal as part of a qualifying project. Proposals also shall include a comprehensive scope of work and a financial plan for the project, containing enough detail to allow an analysis by the city of the financial feasibility of the proposed project, including, but not limited to:

(1) The identity of any parties expected to provide financing for the project; and

(2) A statement indicating whether the proposer intends to request that the city provide resources for financing the project and the nature and extent of any such resources.

(b) Receipt of proposals; clarifications. All proposals, whether solicited or unsolicited, shall be submitted to the director of procurement services. Each proposal submitted under this article shall be clearly identified as a "PPEA proposal." Further, the city may require that any proposal be clarified. Such clarification may include, but need not be limited to:

(1) Submission of additional documentation;

(2) Responses to specific question; and

(3) Interviews with potential project participants.

(c) Affected local jurisdictions. Any private entity requesting approval from or submitting a conceptual or detailed proposal to the city shall provide each affected local jurisdiction with a copy of the private entity's request for proposal by certified mail, express delivery or hand delivery. Affected local jurisdictions other than the city shall have 60 calendar days from the receipt of the request for proposal to submit written comments to the city and to indicate whether the proposed qualifying project is compatible with that affected local jurisdiction's:

(1) Local comprehensive plan;

(2) Local infrastructure development plans; or

(3) Capital improvements budget or other government spending plan.

Comments received within the 60-day period shall be given consideration by the city, and no negative inference shall be drawn from the absence of comment by an affected local jurisdiction.

(d) Commitment to minority business opportunities. The city is committed to providing contracting and subcontracting opportunities for minority business enterprises. It is the policy of the city that:

(1) This article not be used to circumvent other provisions of this chapter relating to participation by minority business enterprises in city projects; and

(2) All criteria set forth in this chapter related to participation by minority business enterprises in city projects be applied fully to all proposals, solicited or unsolicited, received by the city pursuant to this article.

(e) Two-phase process. The city shall require proposers to follow a two-part proposal submission process consisting of a conceptual phase and a detailed phase. The conceptual phase proposal shall contain specified information on proposer qualifications and experience, project characteristics, project financing, anticipated public support or opposition, or both, and project benefit and compatibility. The detailed phase proposal shall contain specified deliverables.

(f) Review committee. A review committee shall review all proposals, whether solicited or unsolicited, received pursuant to this article. At a minimum, the review committee shall consist of:

(1) The director of procurement services or a designee thereof;

(2) A representative of the office of minority business development; and

(3) A representative of each department or other agency of the city affected by the proposal.

The review committee may include such other members as it deems essential to the review of the proposal, including external consultants.

(g) Freedom of information; confidential proprietary information.

(1) In general. Proposal documents submitted by private entities are subject to the Virginia Freedom of Information Act, Code of Virginia, § 2.2-3700 et seq. The city shall release those documents if requested as required by that act, except to the extent that they relate to:

a. Confidential proprietary information submitted to the dity under a promise of confidentiality; or

b. Memoranda, working papers or other records related to proposals if making public such records would adversely affect the financial interest of the city or the private entity or the bargaining position of either party. Once a comprehensive agreement has been entered into, and the process of bargaining of all phases or aspects of the comprehensive agreement is complete, the city shall make available, upon request, procurement records

in accordance with section 74-5.

(2) Invocation of exclusion from disclosure requirement. When the private entity requests that the city not disclose information, the private entity must:

a. Invoke the exclusion when the data or materials are submitted to the city;

b. Identify the data and materials for which protection from disclosure is sought; and

c. State why the exclusion from disclosure is necessary.

A private entity may request and receive a determination from the city as to the anticipated scope of protection prior to submitting the proposal. The city is authorized and obligated to protect only confidential proprietary information, and thus will not protect any portion of a proposal from disclosure if the entire proposal has been designated confidential by the proposer without reasonably differentiating between the proprietary and nonproprietary information contained therein.

(3) Advance determination of exclusion from disclosure requirement. Upon receipt of a request that designated portions of a proposal be protected from disclosure as confidential and proprietary, the city shall determine whether such protection is appropriate under applicable law and, if appropriate, the scope of such protection shall communicate its determination to the proposer. If the determination regarding protection or the scope thereof differs from the proposer's request, then the city shall accord the proposer a reasonable opportunity to clarify and justify its request. Upon a final determination by the city to accord less protection than requested by the proposer, the proposer shall be accorded an opportunity to withdraw its proposal. A proposal so withdrawn shall be treated in the same manner as a proposal not accepted for publication and conceptual-phase consideration as provided in section 74-404(c).

(Code 1993, § 22.1-171; Ord. No. 2004-27-41, § 1, 2-23-2004; Ord. No. 2006-134-105, § 1, 5-8-2006)

Sec. 74-403. Proposal submission--Solicited proposals.

(a) In general. The city may solicit bids or proposals from private entities to acquire, construct, improve, renovate, expand, maintain, operate, implement or install qualifying projects or to design or equip projects so constructed, improved, renovated, expanded, maintained, operated, implemented or installed. The city may schedule and hold pre-bid or pre-proposal conferences as it deems appropriate.

(b) Methods of solicitation. When proceeding under this article, the city shall use competitive sealed bidding as defined in section 74-4 to procure a comprehensive agreement concerning a qualifying project. However, the city may use competitive negotiation as defined in section 74-4 and as outlined for the procurement of nonprofessional services in article III of this chapter to procure a comprehensive agreement concerning a qualifying project if the director determines in writing, stating the reasons for the determination, that the use of competitive negotiation is likely to be advantageous to the city and the public, based on (i) the probable scope, complexity or urgency of the project or (ii) risk sharing, added value, an increase in funding or economic benefit from the project that would not otherwise be available.

(c) Contents of solicitation. The solicitation may invite bidders or offerors to submit bids or

proposals on individual projects identified by the city. The city shall set forth in the solicitation the format and supporting information required to be submitted. The solicitation shall contain or incorporate by reference the applicable terms and conditions, including any unique capabilities or qualifications that will be required of the private entities submitting proposals.

(d) Public notice. The city shall post, publish and otherwise advertise the solicitation as required by this chapter and in the manner in which the city customarily posts, publishes and advertises its invitations to bid or requests for proposals. (Code 1993, § 22.1-172; Ord. No. 2004-27-41, § 1, 2-23-2004)

Sec. 74-404. Proposal submission--Unsolicited proposals.

(a) In general. The city may receive, evaluate and select for negotiations unsolicited proposals from private entities to acquire, construct, improve, renovate, expand, maintain, operate, implement or install a qualifying project or to design or equip projects so constructed, improved, renovated, expanded, maintained, operated, implemented or installed. The city may publicize its needs and may encourage interested parties to submit proposals subject to the terms and conditions of this article and the Public-Private Transportation Act of 1995, codified in Chapter 22 of Title 56 of the Code of Virginia (1950), as amended, or the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Chapter 22.1 of Title 56 of the Code of Virginia (1950), as amended, as applicable. Any proposal submitted pursuant to this article that is not received in response to an invitation for bids or a request for proposals shall be treated as an unsolicited proposal under this article. Such unsolicited proposals include, but are by no means limited to, (i) proposals received in response to a notice of the prior receipt of another unsolicited proposal as provided for in subsection (d) below and (ii) proposals received in response to publicity by the city concerning particular needs when the city has not issued a corresponding invitation for bids or request for proposals, even if the city otherwise has encouraged the submission of proposals pursuant to this article that address those needs.

(b) Proposal review fee.

(1) In general. The city may seek the advice of internal staff or outside advisors or consultants with relevant experience in determining whether to enter into a comprehensive agreement with a private entity as the result of an unsolicited proposal. The city may charge a fee to the private entity submitting any unsolicited proposal or competing unsolicited proposal to cover the costs of processing, reviewing, and evaluating that unsolicited proposal or competing unsolicited proposal submitted under this article and the Public-Private Transportation Act of 1995, codified in Chapter 22 of Title 56 of the Code of Virginia (1950), as amended, or the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Chapter 22.1 of Title 56 of the Code of Virginia (1950), as amended, including a fee to cover the costs of outside attorneys, consultants and financial advisors.

(2) Fee to be reasonable. Any fee charged for such review of a proposal shall be reasonable in comparison to the level of expertise required to review the proposal, shall generally be in the amount necessary to cover all of the city's costs and shall not be greater than the direct costs associated with evaluating the proposed qualifying project. "Direct costs" may include (i) the cost of staff time, including overhead; (ii) the cost of any materials, supplies or other resources; and (iii) the out-of-pocket costs of attorneys, financial advisors, and other advisors or consultants

expended by the city, in its sole discretion, to assist in processing, evaluating, reviewing and responding to the proposal.

(3) Calculation of fee. The city may charge the proposal review fee in two parts. The first part of the proposal review fee shall be in the amount of two and one-half percent of the value of the qualifying project under the submitted proposal, except that, notwithstanding the preceding, this initial fee shall be no less than $2,500.00 and no more than $50,000.00, and shall be included by the private entity as part of its submitted proposal. The second part of the proposal review fee shall consist of the remaining direct costs not covered by the first part of the proposal review fee and shall be imposed by the city throughout the processing, review and evaluation of the proposal if and as the city reasonably anticipates incurring costs in excess of the first part of the proposal review fee. The city shall notify the proposer of the amount of such additional direct costs as and when it anticipates incurring such costs. Prompt payment of such costs shall be required before the city will continue to process, review and evaluate the proposal.

(4) Refund of all or part of fee. The city shall refund all fees submitted by a private entity in connection with an unsolicited proposal if the city decides not to proceed to publication and conceptual-phase review of the unsolicited proposal. The city shall refund any portion of fees paid in excess of its direct costs associated with evaluating a proposal. In the event the city chooses to consider more than one proposal in the detailed phase of review, the city shall not refund the fees paid by an unsuccessful proposer for costs incurred during the detailed phase of review.

(c) Decision to accept and consider unsolicited proposal. Upon receipt of any unsolicited proposal or group of proposals and payment of any required fee by the proposer or proposers, the city, in its sole discretion, shall determine whether to accept the unsolicited proposal for publication and conceptual-phase consideration. If the city, in its sole discretion, determines not to accept the proposal and proceed to publication and conceptual-phase consideration, it will return the proposal, together with all fees and accompanying documentation, to the proposer. The city may reject or discontinue its evaluation of any proposal at any time. Further, if the city determines that it is in the city's interest to do so with respect to any unsolicited proposal, the city may eliminate review at the conceptual stage and proceed directly to a review at the detailed stage.

(d) Public notice of receipt of unsolicited proposal. If the city chooses to accept an unsolicited proposal for conceptual-phase consideration, it shall post a notice in a public area regularly used by the city for posting of public notices for a period of not less than 45 calendar days. The city shall also publish the same notice in the Virginia Business Opportunities publication and in one or more newspapers or periodicals of general circulation in the city to notify any parties that may be interested in submitting competing unsolicited proposals. In addition, the notice may be advertised in such other publications as the director may deem advantageous to the city. Such notice shall be so posted and published as to allow for a reasonable period determined by the director to be appropriate to encourage competition and public-private partnerships pursuant to the goals of this article, such period not to be less than 45 calendar days, during which the city will receive competing proposals pursuant to this article and the Public-Private Transportation Act of 1995, codified in Chapter 22 of Title 56 of the Code of Virginia (1950), as amended, or the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Chapter 22.1 of Title 56 of the Code of Virginia (1950), as amended, as applicable. The notice shall state that the city:

(1) Has received and accepted an unsolicited proposal under the Public-Private Transportation Act of 1995, codified in Chapter 22 of Title 56 of the Code of Virginia (1950), as amended, or the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Chapter 22.1 of Title 56 of the Code of Virginia (1950), as amended, as applicable,

(2) Intends to evaluate the proposal,

(3) May negotiate a comprehensive agreement with the proposer based on the proposal, and

(4) Will accept for simultaneous consideration any competing proposals that comply with this article and the Public-Private Transportation Act of 1995, codified in Chapter 22 of Title 56 of the Code of Virginia (1950), as amended, or the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Chapter 22.1 of Title 56 of the Code of Virginia (1950), as amended, as applicable.

The notice also shall summarize the proposed qualifying project or projects and identify their proposed location or locations. Copies of unsolicited proposals shall be available upon request, subject to the provisions of (i) section 74-5 of this Code, (ii) the Virginia Freedom of Information Act, codified in Chapter 37 of Title 2.2 of the Code of Virginia (1950), as amended, and (iii) section 56-575.4(G) of the Code of Virginia (1950), as amended. During the 45 calendar day period for receiving competing unsolicited proposals, the city may continue to evaluate the original unsolicited proposal. (Code 1993, § 22.1-173; Ord. No. 2004-27-41, § 1, 2-23-2004)

Sec. 74-405. Proposal submission--Format of proposals.

(a) Conceptual phase proposals. At a minimum, conceptual phase proposals shall contain information in the following areas:

(1) Qualification and experience. Proposals shall:

a. Identify the legal structure of the firm or consortium of firms making the proposal and identify the organizational structure for the project, the management approach and how each partner and major subcontractor in the structure fits into the overall team.

b. Describe the experience of the firm or consortium of firms making the proposal and the key principals involved in the proposed project including experience with projects of comparable size and complexity and describe the length of time in business, business experience, public sector experience and other engagements of the firm or consortium of firms.

c. Provide the names, addresses, and telephone numbers of persons within the firm or consortium of firms who may be contacted for further information.

d. Provide a current or most recently audited financial statement of the firm or firms and each partner with an equity interest of 20 percent or greater.

(2) Project characteristics. Proposals shall:

a. Provide a description of the project, including the conceptual design and, for transportation facilities, all proposed interconnections with other transportation facilities; describe the proposed project in sufficient detail so that type and intent of the project, the location, and the communities that may be affected are clearly identified; and describe all assumptions used in developing the project.

b. Identify and fully describe any work to be performed by the city.

c. Include a list of all federal, state and local permits and approvals required for the project and a schedule for obtaining such permits and approvals, and identify any permits, approvals or other rights that the city is to obtain, including, but not limited to, rights from railroads.

d. Identify any anticipated adverse social, economic and environmental impacts of the project and specify the strategies or actions to mitigate known impacts of the project.

e. Identify the projected positive social, economic and environmental impacts of the project.

f. Identify the proposed schedule for the work on the project, including the estimated time for completion.

g. Propose allocation of risk and liability for work completed beyond the agreement's completion date, and assurances for timely completion of the project.

h. State assumptions related to ownership, legal liability, law enforcement and operation of the project.

i. Provide information relative to phased or partial openings of the proposed project prior to completion of the entire work.

(3) Project financing. Proposals shall:

a. Provide preliminary estimate and estimating methodology of the cost of the work by phase, segment, or both.

b. Submit a plan for the development, financing and operation of the project showing the anticipated schedule on which funds will be required and describe proposed sources and uses for such funds.

c. Include a list and discussion of assumptions underlying all major elements of the plan.

d. Identify the proposed risk factors and methods for dealing with these factors.

e. Identify any local, state or federal resources that the proposer contemplates requesting for

the project and describe the total commitment, if any, expected from governmental sources and the timing of any anticipated commitment.

(4) Project benefit and compatibility. Proposals shall:

a. Identify who will benefit from the project, how they will benefit and how the project will benefit the city, the overall community, region, or state.

b. Identify any anticipated public support or opposition, as well as any anticipated government support or opposition, for the project.

c. Explain the strategy and plans that will be carried out to involve and inform the general public, business community, and governmental agencies in areas affected by the project.

d. Describe in detail the proposer's proposed commitments to facilitate participation by minority business enterprises in the project and identify joint ventures and subcontractors.

e. Describe the anticipated significant benefits to the city, the community, region or state including anticipated benefits to the economic condition of the city and whether the project is critical to attracting or maintaining competitive industries and businesses to the city or the surrounding region.

f. Describe the project's compatibility with the city's local comprehensive plan, local infrastructure development plans, local and statewide transportation plans, and the city's capital improvement program budget or other applicable government spending plans.

(b) Detailed phase proposals. If the city decides to proceed to the detailed phase of review with one or more proposals, the following information shall be provided by the private entity which submitted such proposal unless waived by city in writing:

(1) A topographical map (1:2,000 or other appropriate scale) depicting the location of the proposed project.

(2) A list of public utility facilities, if any, that will be crossed by the qualifying project and a statement of the plans of the proposer to accommodate such crossings.

(3) A statement setting out the plans for securing all necessary property. The statement must include the names and addresses, if known, of the current owners of the subject property as well as a list of any property the proposer intends to request the city to condemn.

(4) A detailed listing of all firms that will provide specific design, construction and completion guarantees and warranties and a brief description of such guarantees and warranties.

(5) A total life-cycle cost specifying methodology and assumptions of the project or projects and the proposed project start date. The life-cycle cost analysis shall include anticipated commitment of all parties; equity, debt, and other financing mechanisms; and a schedule of project revenues and

project costs. The life-cycle cost analysis shall include a detailed analysis of the projected return, rate of return, or both.

(6) A detailed discussion of assumptions about user fees or rates, and usage of the projects and, for transportation facilities, a detailed discussion of toll rates and traffic forecasts and assumptions.

(7) Identification of any known government support or opposition, or general public support or opposition for the project. Government or public support may be demonstrated through resolution of official bodies, minutes of meetings, letters, or other official communications.

(8) Demonstration of consistency with the appropriate city's local comprehensive, transportation or infrastructure development plans or indication of the steps required for acceptance into such plans.

(9) Explanation of how the proposed project would impact local development plans of the city and each affected local jurisdiction.

(10) Identification of any known conflicts of interest or other disabilities that may affect the city's consideration of the proposal.

(11) Such additional material and information as the city may reasonably request. (Code 1993, § 22.1-174; Ord. No. 2004-27-41, § 1, 2-23-2004)

Sec. 74-406. Proposal review--Conceptual phase.

(a) Requirements for initial review. Only proposals complying with the requirements of this article and the Public-Private Transportation Act of 1995, codified in Chapter 22 of Title 56 of the Code of Virginia (1950), as amended, or the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Chapter 22.1 of Title 56 of the Code of Virginia (1950), as amended, as applicable, which contain sufficient information for a meaningful evaluation and that are provided in an appropriate format as set forth in section 74-405(a) will be considered by the city for further review in the conceptual phase.

(b) Determination of method of procurement. For unsolicited proposals, the city shall determine in the conceptual phase review under what method of procurement it will proceed to procure a comprehensive agreement using the criteria set forth in section 74-403(b).

(c) Result of review. After reviewing the original proposal and any competing proposals submitted during the notice period, the city may determine:

(1) Not to proceed further with any proposal;

(2) To proceed to the detailed phase of review with the original proposal;

(3) To proceed to the detailed phase with a competing proposal; or

(4) To proceed to the detailed phase with multiple proposals.

At all times, the city shall have the right to reject any proposal at any time for any reason whatsoever. No action or other recourse shall lie against the city or its officers, employees, agents or volunteers for any such rejection. (Code 1993, § 22.1-175; Ord. No. 2004-27-41, § 1, 2-23-2004)

Sec. 74-407. Proposal review--Evaluation and selection.

In evaluating and selecting proposals submitted pursuant to this article, the city shall consider the following:

(a) Qualifications and experience. The city shall consider the following factors in determining whether the proposer possesses the requisite qualifications and experience:

(1) Experience with similar infrastructure projects;

(2) Demonstration of ability to perform work;

(3) Leadership structure;

(4) Project manager's experience;

(5) Management approach;

(6) Financial condition; and

(7) Project ownership.

(b) Project characteristics. The city shall consider the following factors in evaluating the project characteristics:

(1) Project definition;

(2) Proposed project schedule;

(3) Operation of the project;

(4) Technology; technical feasibility;

(5) Conformity to laws, regulations, and standards;

(6) Environmental impacts;

(7) Federal, state and local permits; and

(8) Maintenance of the project.

(c) Project financing. The city shall consider the following factors in determining whether the proposed project financing allows adequate access to the necessary capital to finance the project.

(1) Cost and cost benefit to the city;

(2) Financing and the impact on the debt or debt burden of the city;

(3) Financial plan;

(4) Estimated cost; and

(5) Life-cycle cost analysis.

(d) Project benefit and compatibility. The city shall consider the following factors in determining the proposed project's compatibility with the appropriate local or regional comprehensive or development plans:

(1) City and community benefits;

(2) City and community support or opposition, or both;

(3) Public involvement strategy;

(4) Commitment to facilitate participation by minority business enterprises in the project;

(5) Use of transparent competitive procurement policies adequate to maximize competitive bidding opportunities for potential subcontractors and suppliers;

(6) Compatibility with applicable comprehensive, transportation and other governmental plans;

(7) Compatibility with existing city facilities; and

(8) Compatibility with city, local, regional, and state economic development efforts.

(e) Approval of transportation facilities. The city shall not approve any transportation facility unless it determines that the transportation facility serves the public purpose of the Public-Private Transportation Act of 1995, codified in Chapter 22 of Title 56 of the Code of Virginia (1950), as amended, by meeting the requirements of section 56-560(C) of the Code of Virginia (1950), as amended.

(Code 1993, § 22.1-176; Ord. No. 2004-27-41, § 1, 2-23-2004)

Sec. 74-408. Comprehensive agreement.

(a) In general. Prior to acquiring, designing, constructing, improving, renovating, expanding, equipping, maintaining, or operating the qualifying project, the selected proposer shall enter into a

comprehensive agreement with the city. The city's review committee will be responsible for negotiating the comprehensive agreement. Each comprehensive agreement shall define the rights and obligations of the city and the selected proposer with regard to the project.

(b) Terms and conditions. The terms and conditions of the comprehensive agreement shall include but shall not be limited to:

(1) The delivery of maintenance, performance and payment bonds or letters of credit in connection with the acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of the qualifying project, in the forms and amounts satisfactory to the city.

(2) The review of plans and specifications for the qualifying project by the city and approval by the city if the plans and specifications conform to standards acceptable to the city.

(3) The rights of the city to inspect the qualifying project to ensure that the operator's activities are acceptable to the city in accordance with the provisions of the comprehensive agreement.

(4) The maintenance of a policy or policies of liability insurance or self-insurance, copies of which shall be filed with the city accompanied by proofs of coverage, in form and amount satisfactory to the city and reasonably sufficient to insure coverage of the project and the tort liability to the public and employees and to enable the continued operation of the qualifying project.

(5) The monitoring of the practices of the operator by the city to ensure that the qualifying project is properly maintained.

(6) The terms under which the operator will reimburse the city for services provided by the city.

(7) The terms under which the operator will file appropriate financial statements on a periodic basis.

(8) The policy and procedures that will govern the rights and responsibilities of the city and the operator in the event that the comprehensive agreement is terminated or there is a material default by the operator, including the conditions governing assumption of the duties and responsibilities of the operator by the city and the transfer or purchase of property or other interests of the operator by the city.

(9) The mechanism by which user fees, lease payments, or service payments, if any, may be established from time to time upon agreement of the parties. Any payments or fees shall be set at a level that are the same for persons using the facility under like conditions and that will not materially discourage use for the qualifying project. Provisions for the following shall also be included:

a. A copy of any service contract shall be filed with the city.

b. A schedule of the current user fees or lease payments shall be made available by the operator to any member of the public upon request.

c. Classifications according to reasonable categories for assessment of user fees may be made.

(10) The terms and conditions under which the city may contribute financial or in-kind resources, if any, for the qualifying project.

(11) Other provisions that the Public-Private Transportation Act of 1995, codified in Chapter 22 of Title 56 of the Code of Virginia (1950), as amended, or the Public-Private Education Facilities and Infrastructure Act of 2002, codified in Chapter 22.1 of Title 56 of the Code of Virginia (1950), as amended, may require or that the city may deem necessary.

(c) Use of public funds. All constitutional and statutory requirements applicable to the appropriation and expenditure of public funds apply to any comprehensive agreement entered into under this article. The processes and procedural requirements associated with the expenditure or obligation of public funds shall be incorporated into any comprehensive agreement into which the city enters. (Code 1993, § 22.1-177; Ord. No. 2004-27-41, § 1, 2-23-2004)

Documents

· Web viewState Law References: Similar provisions, Code of Virginia, 2.2-4304. Sec. 74-45. Conditions for use of competitive sealed bidding. All public contracts with nongovernmental