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2004 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 2.2-2006, 2.2-4343, and 23-77.4 of the Code of Virginia are amended and reenacted as follows:
§ 2.2-2006. Definitions.
As used in this chapter:
"Board" means the Information Technology Investment Board created in § 2.2-2457.
"Communications services" includes telecommunications services, automated data processing services, and management information systems that serve the needs of state agencies and institutions.
"Information technology" means telecommunications, automated data processing, databases, the Internet, management information systems, and related information, equipment, goods, and services. It is in the interest of the Commonwealth that its public institutions of higher education in Virginia be in the forefront of developments in technology. Therefore, the provisions of this chapter shall not be construed to hamper the pursuit of the missions of the institutions in instruction and research.
"Major information technology project" means any state agency information technology project that (i) is mission-critical, (ii) has statewide application, or (iii) has a total estimated cost of more than $1 million.
"Noncommercial telecommunications entity" means any public broadcasting station as defined in § 2.2-2427.
"Public telecommunications entity" means any public broadcasting station as defined in § 2.2-2427.
"Public telecommunications facilities" means all apparatus, equipment and material necessary for or associated in any way with public broadcasting stations or public broadcasting services as those terms are defined in § 2.2-2427, including the buildings and structures necessary to house such apparatus, equipment and material, and the necessary land for the purpose of providing public broadcasting services, but not telecommunications services.
"Public telecommunications services" means public broadcasting services as defined in § 2.2-2427.
"Secretary" means the Secretary of Technology.
"State agency" or "agency" means any agency, institution, board, bureau, commission, council, or instrumentality of state government in the executive branch listed in the appropriation act. However, the terms “state agency,” “agency,” “institution,” “public body,” and “public institution of higher education,” shall not include the University of Virginia Medical Center.
"Telecommunications" means any origination, transmission, emission, or reception of signs, signals, writings, images, and sounds or intelligence of any nature, by wire, radio, television, optical, or other electromagnetic systems.
"Telecommunications facilities" means apparatus necessary or useful in the production, distribution, or interconnection of electronic communications for state agencies or institutions including the buildings and structures necessary to house such apparatus and the necessary land.
§ 2.2-4343. Exemption from operation of chapter for certain transactions.
A. The provisions of this chapter shall not apply to:
1. The Virginia Port Authority in the exercise of any of its powers in accordance with Chapter 10 (§ 62.1-128 et seq.) of Title 62.1, provided the Authority implements, by policy or regulation adopted by the Board of Commissioners and approved by the Department of General Services, procedures to ensure fairness and competitiveness in the procurement of goods and services and in the administration of its capital outlay program. This exemption shall be applicable only so long as such policies and procedures meeting the requirements remain in effect.
2. The Virginia Retirement System for selection of services related to the management, purchase or sale of authorized investments, including but not limited to actuarial services. Selection of these services shall be governed by the standard set forth in § 51.1-124.30.
3. The State Treasurer in the selection of investment management services related to the external management of funds shall be governed by the standard set forth in § 2.2-4514, and shall be subject to competitive guidelines and policies that are set by the Commonwealth Treasury Board and approved by the Department of General Services.
4. The Department of Social Services or local departments of social services for the acquisition of motor vehicles for sale or transfer to Temporary Assistance to Needy Families (TANF) recipients.
5. The University of Virginia in the selection of services related to the management and investment of its endowment funds, endowment income, or gifts pursuant to § 23-76.1. However, selection of these services shall be governed by the Uniform Management of Institutional Funds Act (§ 55-268.1 et seq.) as required by § 23-76.1.
6. The Board of the Virginia College Savings Plan for the selection of services related to the operation and administration of the Plan, including, but not limited to, contracts or agreements for the management, purchase, or sale of authorized investments or actuarial, record keeping, or consulting services. However, such selection shall be governed by the standard set forth in § 23-38.80.
7. Public institutions of higher education for the purchase of Items items for
resale at retail bookstores and similar retail outlets operated by such
institutions. However, such purchase procedures shall provide for competition
where practicable.
8. The purchase of goods and services by agencies of the legislative branch that may be specifically exempted therefrom by the Chairman of the Committee on Rules of either the House of Delegates or the Senate. Nor shall the contract review provisions of § 2.2-2011 apply to such procurements. The exemption shall be in writing and kept on file with the agency's disbursement records.
9. Any town with a population of less than 3,500, except as stipulated in the provisions of §§ 2.2-4305, 2.2-4308, 2.2-4311, 2.2-4315, 2.2-4330, 2.2-4333 through 2.2-4338, 2.2-4343.1, and 2.2-4367 through 2.2-4377.
10. Any county, city or town whose governing body has adopted, by ordinance or resolution, alternative policies and procedures which are (i) based on competitive principles and (ii) generally applicable to procurement of goods and services by such governing body and its agencies, except as stipulated in subdivision 12.
This exemption shall be applicable only so long as such policies and
procedures, or other policies and procedures meeting the requirements of §
2.2-4300, remain in effect in such county, city or town. Such policies and standards
may provide for incentive contracting which that offers a contractor whose bid
is accepted the opportunity to share in any cost savings realized by the locality when project costs
are reduced by such contractor, without affecting project quality, during construction of the
project. The fee, if any, charged by the project engineer or architect for
determining such cost savings shall be paid as a separate cost and shall not be
calculated as part of any cost savings.
11. Any school division whose school board has adopted, by policy or
regulation, alternative policies and procedures which that are (i) based on
competitive principles and (ii) generally applicable to procurement of goods and services by the
school board, except as stipulated in subdivision 12.
This exemption shall be applicable only so long as such policies and procedures, or other policies or procedures meeting the requirements of § 2.2-4300, remain in effect in such school division. This provision shall not exempt any school division from any centralized purchasing ordinance duly adopted by a local governing body.
12. Notwithstanding the exemptions set forth in subdivisions 9 through 11, the provisions of subsections C and D of § 2.2-4303, and §§ 2.2-4305, 2.2-4308, 2.2-4311, 2.2-4315, 2.2-4317, 2.2-4330, 2.2-4333 through 2.2-4338, 2.2-4343.1, and 2.2-4367 through 2.2-4377 shall apply to all counties, cities and school divisions, and to all towns having a population greater than 3,500 in the Commonwealth.
The method for procurement of professional services set forth in subdivision 3 a of § 2.2-4301 in the definition of competitive negotiation shall also apply to all counties, cities and school divisions, and to all towns having a population greater than 3,500, where the cost of the professional service is expected to exceed $30,000 in the aggregate or for the sum of all phases of a contract or project. A school board that makes purchases through its public school foundation or purchases educational technology through its educational technology foundation, either as may be established pursuant to § 22.1-212.2:2 shall be exempt from the provisions of this chapter, except, relative to such purchases, the school board shall comply with the provisions of §§ 2.2-4311 and 2.2-4367 through 2.2-4377.
13. A public body which that is also a utility operator may purchase services
through or participate in contracts awarded by one or more utility operators
which that are not public bodies for utility marking services as required
by the Underground Utility Damage Prevention Act (§ 56-265.14 et seq.). A
purchase of services under this subdivision may deviate from the procurement
procedures set forth in this chapter upon a determination made in advance by
the public body and set forth in writing that competitive sealed bidding is
either not practicable or not fiscally advantageous to the public, and the
contract is awarded based on competitive principles.
14. Procurement of any construction or planning and design services for construction by a Virginia nonprofit corporation or organization not otherwise specifically exempted when (i) the planning, design or construction is funded by state appropriations of $10,000 or less or (ii) the Virginia nonprofit corporation or organization is obligated to conform to procurement procedures that are established by federal statutes or regulations, whether those federal procedures are in conformance with the provisions of this chapter.
15. Purchases, exchanges, gifts or sales by the Citizens' Advisory Council on Furnishing and Interpreting the Executive Mansion.
16. The Eastern Virginia Medical School in the selection of services related to the management and investment of its endowment and other institutional funds. The selection of these services shall, however, be governed by the Uniform Management of Institutional Funds Act (§ 55-268.1 et seq.).
17. The Department of Corrections in the selection of pre-release and post-incarceration services.
18. The Board of the Chippokes Plantation Farm Foundation in entering into agreements with persons for the construction, operation, and maintenance of projects consistent with the Chippokes Plantation State Park Master Plan approved by the Director of the Department of Conservation and Recreation pursuant to the requirements of § 10.1-200.1 and designed to further an appreciation for rural living and the contributions of the agricultural, forestry, and natural resource based industries of the Commonwealth, provided such projects are supported solely by private or nonstate funding.
19. The University of Virginia Medical Center to the extent provided by subdivision B 3 of § 23-77.4.
B. Where a procurement transaction involves 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 the provisions of this chapter, a public body may comply with such federal requirements, notwithstanding the provisions of this chapter, only upon the written determination of the Governor, in the case of state agencies, or the governing body, in the case of political subdivisions, that acceptance of the grant or contract funds under the applicable conditions is in the public interest. Such determination shall state the specific provision of this chapter in conflict with the conditions of the grant or contract.
§ 23-77.4. Medical center management.
A. The General Assembly recognizes and finds that the economic viability of the University of Virginia Medical Center, hereafter referred to as the Medical Center, together with the requirement for its specialized management and operation, and the need of the Medical Center to participate in cooperative arrangements reflective of changes in health care delivery, as set forth in § 23-77.3, are dependent upon the ability of the management of the Medical Center to make and implement promptly decisions necessary to conduct the affairs of the Medical Center in an efficient, competitive manner. The General Assembly also recognizes and finds that it is critical to, and in the best interests of, the Commonwealth that the University continue to fulfill its mission of providing quality medical and health sciences education and related research and, through the presence of its Medical Center, continue to provide for the care, treatment, health-related services, and education activities associated with Virginia patients, including indigent and medically indigent patients. Because the General Assembly finds that the ability of the University to fulfill this mission is highly dependent upon revenues derived from providing health care through its Medical Center, and because the General Assembly also finds that the ability of the Medical Center to continue to be a reliable source of such revenues is heavily dependent upon its ability to compete with other providers of health care that are not subject to the requirements of law applicable to agencies of the Commonwealth, the University is hereby authorized to implement the following modifications to the management and operation of the affairs of the Medical Center in order to enhance its economic viability:
B. Capital projects; leases of property; procurement of goods, services and construction.
1. Capital projects.
a. For any Medical Center capital project entirely funded by a nongeneral fund
appropriation made by the General Assembly, all post-appropriation review,
approval, administrative, and policy and procedure functions performed by the
Department of General Services, the Division of Engineering and Buildings, the
Department of Planning and Budget and any other agency that supports the
functions performed by these departments are hereby delegated to the
University, subject to the following stipulations and conditions: (i) the Board
of Visitors shall develop and implement an appropriate system of policies,
procedures, reviews and approvals for Medical Center capital projects to which
this subdivision applies; (ii) the system so adopted shall provide for the
review and approval of any Medical Center capital project to which this
subdivision applies in order to ensure that, except as provided in clause
(iii), the cost of any such capital project does not exceed the sum
appropriated therefor and that the project otherwise complies with all
requirements of the Code of Virginia regarding capital projects, excluding only
the post-appropriation review, approval, administrative, and policy and
procedure functions performed by the Department of General Services, the
Division of Engineering and Buildings, the Department of Planning and Budget
and any other agency that supports the functions performed by these
departments; (iii) the Board of Visitors may, during any fiscal year, approve a
transfer of up to a total of fifteen 15 percent of the total nongeneral fund
appropriation for the Medical Center in order to supplement funds appropriated
for a capital project or capital projects of the Medical Center, provided that
the Board of Visitors finds that the transfer is necessary to effectuate the
original intention of the General Assembly in making the appropriation for the
capital project or projects in question; (iv) the University shall report to
the Department of General Services on the status of any such capital project
prior to commencement of construction of, and at the time of acceptance of, any
such capital project; and (v) the University shall ensure that Building
Officials and Code Administrators (BOCA) Code and fire safety inspections of
any such project are conducted and that such projects are inspected by the
State Fire Marshal or his designee prior to certification for building
occupancy by the University's assistant state building official to whom such
inspection responsibility has been delegated pursuant to § 36-98.1. Nothing in
this section shall be deemed to relieve the University of any reporting requirement
pursuant to § 2.2-1513. Notwithstanding the foregoing, the terms and structure
of any financing of any capital project to which this subdivision applies shall be
approved pursuant to § 2.2-2416.
b. No capital project to which this subdivision applies shall be materially
increased in size or materially changed in scope beyond the plans and
justifications which that were the basis for the project's appropriation
unless: (i) the Governor determines that such increase in size or change in scope is necessary due to
an emergency or (ii) the General Assembly approves the increase or change in a
subsequent appropriation for the project. After construction of any such
capital project has commenced, no such increase or change may be made during
construction unless the conditions in (i) or (ii) have been satisfied.
2. Leases of property.
a. The University shall be exempt from the provisions of § 2.2-1149 and from
any rules, regulations and guidelines of the Division of Engineering and Buildings
in relation to leases of real property which that it enters into on behalf of
the Medical Center and, pursuant to policies and procedures adopted by the Board of Visitors, may
enter into such leases subject to the following conditions: (i) the lease must be an operating lease
and not a capital lease as defined in guidelines established by the Secretary
of Finance and Generally Accepted Accounting Principles (GAAP); (ii) the
University's decision to enter into such a lease shall be based upon cost,
demonstrated need, and compliance with guidelines adopted by the Board of
Visitors which direct that competition be sought to the maximum practical
degree, that all costs of occupancy be considered, and that the use of the
space to be leased actually is necessary and is efficiently planned; (iii) the
form of the lease is approved by the Special Assistant Attorney General
representing the University; (iv) the lease otherwise meets all requirements of
law; (v) the leased property is certified for occupancy by the building
official of the political subdivision in which the leased property is located;
and (vi) upon entering such leases and upon any subsequent amendment of such
leases, the University shall provide copies of all lease documents and any
attachments thereto to the Department of General Services.
b. Notwithstanding the provisions of §§ 2.2-1155 and 23-4.1, but subject to
policies and procedures adopted by the Board of Visitors, the University may lease, for a
purpose consistent with the mission of the Medical Center and for a term not to
exceed fifty 50 years, property in the possession or control of the
Medical Center.
c. Notwithstanding the foregoing, the terms and structure of any financing arrangements secured by capital leases or other similar lease financing agreements shall be approved pursuant to § 2.2-2416.
3. Procurement of goods, services and construction.
Contracts awarded by the University in compliance with this section, on behalf
of the Medical Center, for the procurement of goods,; services, including
professional services,; and construction; and information technology and
telecommunications, shall be exempt from (i) the Virginia Public Procurement
Act (§ 2.2-4300 et seq.), except as provided below; (ii) the requirements of
the Division of Purchases and Supply of the Department of General Services as set forth
in Article 3 (§ 2.2-1109 et seq.) of Chapter 11 of Title 2.2; and (iii) the
requirements of the Division of Engineering and Buildings as set forth in
Article 4 (§ 2.2-1129 et seq.) of Chapter 11 of Title 2.2; and (iv) the
authority of the Virginia Information Technologies Agency as set forth in
Chapter 20.1 (§ 2.2-2005 et seq.) of Title 2.2 and the Information Technology
Investment Board created pursuant to § 2.2-2457 regarding the review and
approval of contracts for (a) the construction of Medical Center capital
projects and (b) information technology and telecommunications projects;
however, the provisions of this paragraph subdivision may not be implemented by
the University until such time as the Board of Visitors has adopted guidelines
generally applicable to the procurement of goods, services, and construction
and information technology and telecommunications projects by the Medical
Center or by the University on behalf of the Medical Center. Such guidelines shall be
based upon competitive principles and shall in each instance seek competition
to the maximum practical degree. The guidelines shall implement a system of
competitive negotiation for professional services; shall prohibit
discrimination because of race, religion, color, sex, or national origin of the
bidder or offeror in the solicitation or award of contracts; may take into
account in all cases the dollar amount of the intended procurement, the term of
the anticipated contract, and the likely extent of competition; may implement a
prequalification procedure for contractors or products; may include provisions
for cooperative procurement arrangements with private health or educational
institutions, or with public agencies or institutions of the several states,
territories of the United States or the District of Columbia; shall incorporate
the prompt payment principles of §§ 11-62.10 and 11-62.11 2.2-4350 and
2.2-4354; and may implement provisions of law. The following sections of the Virginia Public Procurement
Act shall continue to apply to procurements by the Medical Center or by the University on behalf of the Medical
Center: §§ 11-49, 11-51, 11-52 2.2-4311, 2.2-4315, and 2.2-4342 (which section
shall not be construed to require compliance with the prequalification application procedures of subsection B
of § 11-46 2.2-4317), 11-54, 11-56 through 11-61, and 11-72 through 11-80
2.2-4330, 2.2-4333 through 2.2-4341, and 2.2-4367 through 2.2-4377.
C. Subject to such conditions as may be prescribed in the budget bill under § 2.2-1509 as enacted into law by the General Assembly, the State Comptroller shall credit, on a monthly basis, to the nongeneral fund operating cash balances of the University of Virginia Medical Center the imputed interest earned by the investment of such nongeneral fund operating cash balances, including but not limited to those balances derived from patient care revenues, on deposit with the State Treasurer.