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ACROSS SESSIONS
- Subject Index: Since 1995
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Developed and maintained by the Division of Legislative Automated Systems.
1995 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 11-46 and 11-70 of the Code of Virginia are amended and reenacted as follows:
§ 11-46. Prequalification generally; prequalification for construction.
A. Prospective contractors may be prequalified for particular types of supplies, services, insurance or construction, and consideration of bids or proposals limited to prequalified contractors. Any prequalification procedure shall be established in writing and sufficiently in advance of its implementation to allow potential contractors a fair opportunity to complete the process.
B. Any prequalification of prospective contractors for construction by a public body subsequent to July 1, 1995, shall be pursuant to a prequalification process for construction projects adopted by the public body. Such process shall be consistent with the provisions of this subsection.
The application form used in such 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 deemed considered a trade secret or
proprietary information pursuant to subdivision B 55 of § 2.1-342
subject to the provisions of subsection D of § 11-52.
In all instances in which the public body requires prequalification of potential contractors for construction projects, 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 for such construction so as to allow the procedures set forth in this subsection to be accomplished.
At least thirty days prior to the date established for submission of bids or proposals under the procurement of the contract for which the prequalification applies, the public body shall advise in writing each contractor which submitted an application whether that contractor has been prequalified. In the event that 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 a public body denying prequalification under the provisions of this subsection shall be final and conclusive unless the contractor appeals the decision as provided in § 11-63.
A public body may deny prequalification to any contractor only if the public body 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 public body 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 him 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 that a public
body without good cause. If the public body has not contracted with a
contractor in any prior construction contracts, the public body 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. In all instances, any such substantial
noncompliance shall be documented A public body may not utilize this
provision 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 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 five ten years of a felony
involving moral turpitude regarding any procurement of or performance of a
construction contract; and of a crime related to governmental or
nongovernmental construction or contracting, including, but not limited to, a
violation of (i) Article 4 (§ 11-72 et seq.), (ii) the Virginia Governmental
Frauds Act (§ 18.2-498.1 et seq.), (iii) Chapter 4.2 (§ 59.1-68.6 et seq.) of
Title 59.1, or (iv) 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; and
7. The contractor failed to provide to the public body in a timely
manner any information requested by the public body relevant to subdivisions
1 through 5 6 of this subsection.
If a public body has a prequalification ordinance which provides for minority participation in municipal construction contracts, that public body may also deny prequalification based on minority participation criteria; provided, however, that nothing herein shall authorize the adoption or enforcement of minority participation criteria except to the extent that such criteria, and the adoption and enforcement thereof, are in accordance with the Constitution and laws of the United States and the Commonwealth.
The provisions of this subsection do not apply to prequalification for contracts let by the Commonwealth Transportation Board under § 33.1-12.
§ 11-70. Legal actions.
A. A bidder or offeror, actual or prospective, who is refused permission or
disqualified from participation in bidding or competitive negotiation, or who
is determined not to be a responsible bidder or offeror for a particular
contract, may bring an action in the appropriate circuit court challenging
that decision, which shall be reversed only if the petitioner establishes
that the decision was arbitrary or capricious, or, in the case of denial
of prequalification, that such the decision to deny
prequalification was not based upon the criteria for denial of
prequalification set forth in subsection B of § 11-46.
B. A bidder denied withdrawal of a bid under § 11-64 may bring an action in the appropriate circuit court challenging that decision, which shall be reversed only if the bidder establishes that the decision of the public body was clearly erroneous.
C. A bidder, offeror or contractor, or a potential bidder or offeror on a contract negotiated on a sole source or emergency basis in the manner provided in § 11-41, whose protest of an award or decision to award under § 11-66 is denied, may bring an action in the appropriate circuit court 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 or capricious or not in accordance with the Constitution of Virginia, statutes, regulations or the terms and conditions of the Invitation to Bid or Request for Proposal.
D. If injunctive relief is granted, the court, upon request of the public body, shall require the posting of reasonable security to protect the public body.
E. A contractor may bring an action involving a contract dispute with a public body in the appropriate circuit court.
F. A bidder, offeror or contractor need not utilize administrative procedures meeting the standards of § 11-71, if available, 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 public body agrees otherwise.
G. Nothing herein shall be construed to prevent a public body from instituting legal action against a contractor.