CODE OF VIRGINIA

PROCUREMENT (§ 56-575.16)

The Virginia Public Procurement Act (§ 2.2-4300 et seq.) and any
interpretations, regulations, or guidelines of the Division of Engineering and
Buildings of the Department of General Services or the Virginia Information
Technologies Agency, including the Capital Outlay Manual and those
interpretations, regulations or guidelines developed pursuant to §§ 2.2-1131,
2.2-1132, 2.2-1133, 2.2-1149, and 2.2-1502, except those developed by the
Division or the Virginia Information Technologies Agency in accordance with this
chapter when the Commonwealth is the responsible public entity, shall not apply
to this chapter. However, a responsible public entity may enter into a
comprehensive agreement only in accordance with guidelines adopted by it as
follows:

   1.  A responsible public entity may enter into a comprehensive agreement in
   accordance with guidelines adopted by it that are consistent with procurement
   through competitive sealed bidding as set forth in § 2.2-4302.1 and
   subsection B of § 2.2-4310.

   2.  A responsible public entity may enter into a comprehensive agreement in
   accordance with guidelines adopted by it that are consistent with the
   procurement of “other than professional services” through
   competitive negotiation as set forth in § 2.2-4302.2 and subsection B of §
   2.2-4310. Such responsible public entity shall not be required to select the
   proposal with the lowest price offer, but may consider price as one factor in
   evaluating the proposals received. Other factors that may be considered
   include (i) the proposed cost of the qualifying facility; (ii) the general
   reputation, industry experience, and financial capacity of the private entity;
   (iii) the proposed design of the qualifying project; (iv) the eligibility of
   the facility for accelerated selection, review, and documentation timelines
   under the responsible public entity’s guidelines; (v) local citizen and
   government comments; (vi) benefits to the public; (vii) the private
   entity’s compliance with a minority business enterprise participation
   plan or good faith effort to comply with the goals of such plan; (viii) the
   private entity’s plans to employ local contractors and residents; and
   (ix) other criteria that the responsible public entity deems appropriate.A
   responsible public entity shall proceed in accordance with the guidelines
   adopted by it pursuant to subdivision 1 unless it determines that proceeding
   in accordance with the guidelines adopted by it pursuant to this subdivision
   is likely to be advantageous to the responsible public entity and the public,
   based on (i) the probable scope, complexity, or priority of the project; (ii)
   risk sharing including guaranteed cost or completion guarantees, added value
   or debt or equity investments proposed by the private entity; or (iii) an
   increase in funding, dedicated revenue source or other economic benefit that
   would not otherwise be available. When the responsible public entity
   determines to proceed according to the guidelines adopted by it pursuant to
   this subdivision, it shall state the reasons for its determination in writing.
   If a state agency is the responsible public entity, the approval of the
   responsible Governor’s Secretary, or the Governor, shall be required
   before the responsible public entity may enter into a comprehensive agreement
   pursuant to this subdivision.

   3.  Nothing in this chapter shall authorize or require that a responsible
   public entity obtain professional services through any process except in
   accordance with guidelines adopted by it that are consistent with the
   procurement of “professional services” through competitive
   negotiation as set forth in § 2.2-4302.2 and subsection B of § 2.2-4310.

   4.  A responsible public entity shall not proceed to consider any request by a
   private entity for approval of a qualifying project until the responsible
   public entity has adopted and made publicly available guidelines pursuant to
   § 56-575.3:1 that are sufficient to enable the responsible public entity to
   comply with this chapter.

   5.  A responsible public entity that is a school board or a county, city, or
   town may enter into an interim or comprehensive agreement under this chapter
   only with the approval of the local governing body.

HISTORY: 2002, c. 571; 2003, cc. 292, 968, 1034; 2004, c. 986; 2005, c. 865;
2006, c. 936; 2007, c. 764; 2013, c. 583.