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2004 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 2.2-4303 and 2.2-4304 of the Code of Virginia are amended and reenacted as follows:
§ 2.2-4303. Methods of procurement.
A. 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 section, unless otherwise authorized by law.
B. Professional services shall be procured by competitive negotiation.
C. 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, goods, services, or insurance may be procured by competitive negotiation. The writing shall document the basis for this determination.
Upon a written determination made in advance by (i) the Governor or his designee in the case of a procurement by the Commonwealth or by a department, agency or institution thereof or (ii) the local governing body in the case of a procurement by a political subdivision of the Commonwealth, that competitive negotiation is either not practicable or not fiscally advantageous, insurance may be procured through a licensed agent or broker selected in the manner provided for the procurement of things other than professional services in subdivision 3 b of the definition of "competitive negotiation" in § 2.2-4301. The basis for this determination shall be documented in writing.
D. Construction may be procured only by competitive sealed bidding, except that competitive negotiation may be used in the following instances 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, which writing shall document the basis for this determination:
1. By the Commonwealth, its departments, agencies and institutions on a fixed price design-build basis or construction management basis under § 2.2-4306;
2. By any public body for the alteration, repair, renovation or demolition of buildings when the contract is not expected to cost more than $500,000;
3. By any public body for the construction of highways and any draining, dredging, excavation, grading or similar work upon real property; or
4. As otherwise provided in § 2.2-4308.
E. Upon a determination in writing that there is only one source practicably
available for that which is to be procured, a contract may be negotiated and
awarded to that source without competitive sealed bidding or competitive
negotiation. The writing shall document the basis for this determination. The
public body shall issue a written notice stating that only one source was
determined to be practicably available, and identifying that which is being
procured, the contractor selected, and the date on which the contract was or
will be awarded. This notice shall be posted in a designated public area or
published in a newspaper of general circulation on the day the public body
awards or announces its decision to award the contract, whichever occurs first.
Public notice may also be published on the Department of General Services'
central electronic procurement Web site website and other appropriate Web sites
websites.
F. In case of emergency, a contract may be awarded 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 and for the selection of the
particular contractor shall be included in the contract file. The public body
shall issue a written notice stating that the contract is being awarded on an
emergency basis, and identifying that which is being procured, the contractor
selected, and the date on which the contract was or will be awarded. This
notice shall be posted in a designated public area or published in a newspaper
of general circulation on the day the public body awards or announces its
decision to award the contract, whichever occurs first, or as soon thereafter
as is practicable. Public notice may also be published on the Department of
General Services' central electronic procurement Web site website and other
appropriate Web sites websites.
G. A public body may establish purchase procedures, if adopted in writing, not requiring competitive sealed bids or competitive negotiation for single or term contracts for goods and services other than professional services if the aggregate or the sum of all phases is not expected to exceed $50,000; however, such small purchase procedures shall provide for competition wherever practicable. Purchases under this subsection that are expected to exceed $30,000 shall require the written informal solicitation of a minimum of four bidders or offerors.
H. A public body may establish purchase procedures, if adopted in writing, not requiring competitive negotiation for single or term contracts for professional services if the aggregate or the sum of all phases is not expected to exceed $30,000; however such small purchase procedures shall provide for competition wherever practicable.
I. Upon a determination made in advance by the local governing a public body
and set forth in writing that the purchase of goods, products or commodities from a public auction
sale is in the best interests of the public, such items may be purchased at the
auction, including online public auctions. The writing shall document the
basis for this determination. However, bulk purchases of commodities used in
road and highway construction and maintenance, and aggregates shall not be made by
online public auctions.
J. The purchase of goods or nonprofessional services, but not construction or professional services, may be made by reverse auctioning. However, bulk purchases of commodities used in road and highway construction and maintenance, and aggregates shall not be made by reverse auctioning.
§ 2.2-4304. Cooperative procurement.
A. Any public body may participate in, sponsor, conduct, or administer a
cooperative procurement agreement on behalf of or in conjunction with one or
more other public bodies, or public agencies or institutions or localities of
the several states, territories of the United States, or the District of
Columbia, or the U.S. General Services Administration, for the purpose of
combining requirements to increase efficiency or reduce administrative expenses in any
acquisition of goods and services. Except for contracts for professional
services, a public body may purchase from another public body's contract even
if it did not participate in the request for proposal or invitation to bid, if
the request for proposal or invitation to bid specified that the procurement
was being conducted on behalf of other public bodies. Any public body that
enters into a cooperative procurement agreement with a county, city, or town
whose governing body has adopted alternative policies and procedures pursuant
to subdivisions 9 and 10 of § 2.2-4343 shall comply with the alternative
policies and procedures adopted by the governing body of such county, city, or town.
B. Subject to the provisions of §§ 2.2-1110, 2.2-1111, 2.2-1120 and 2.2-2012, any authority, department, agency, or institution of the Commonwealth may participate in, sponsor, conduct, or administer a cooperative procurement arrangement on behalf of or in conjunction with public bodies, 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, for the purpose of combining requirements to effect cost savings or reduce administrative expense in any acquisition of goods and services, other than professional services. A public body may purchase from any authority, department, agency or institution of the Commonwealth's contract even if it did not participate in the request for proposal or invitation to bid, if the request for proposal or invitation to bid specified that the procurement was being conducted on behalf of other public bodies. In such instances, deviation from the procurement procedures set forth in this chapter and the administrative policies and procedures established to implement this chapter shall be permitted, if approved by the Director of the Division of Purchases and Supply. Pursuant to § 2.2-2012, such approval is not required if the procurement arrangement is for telecommunications and information technology goods and services of every description. In instances where the procurement arrangement is for telecommunications and information technology goods and services, such arrangement shall be permitted if approved by the Chief Information Officer. However, such acquisitions shall be procured competitively. Nothing herein shall prohibit the payment by direct or indirect means of any administrative fee that will allow for participation in any such arrangement.
C. As authorized by the U.S. Congress and consistent with applicable federal regulations, and upon approval of the Chief Information Officer, any authority, department, agency, or institution of the Commonwealth may purchase telecommunications and information technology goods and nonprofessional services from a contract for such goods and services which is maintained by the U.S. General Services Administration.