2.2-4343 - Exemption from operation of chapter for certain transactions.
§ 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 inaccordance with Chapter 10 (§ 62.1-128 et seq.) of Title 62.1, provided theAuthority implements, by policy or regulation adopted by the Board ofCommissioners and approved by the Department of General Services, proceduresto ensure fairness and competitiveness in the procurement of goods andservices and in the administration of its capital outlay program. Thisexemption shall be applicable only so long as such policies and proceduresmeeting the requirements remain in effect.
2. The Virginia Retirement System for selection of services related to themanagement, purchase or sale of authorized investments, actuarial services,and disability determination services. Selection of these services shall begoverned by the standard set forth in § 51.1-124.30.
3. The State Treasurer in the selection of investment management servicesrelated to the external management of funds shall be governed by the standardset forth in § 2.2-4514, and shall be subject to competitive guidelines andpolicies that are set by the Commonwealth Treasury Board and approved by theDepartment of General Services.
4. The Department of Social Services or local departments of social servicesfor the acquisition of motor vehicles for sale or transfer to TemporaryAssistance to Needy Families (TANF) recipients.
5. The College of William and Mary in Virginia, Virginia CommonwealthUniversity, the University of Virginia, and Virginia Polytechnic Instituteand State University in the selection of services related to the managementand investment of their endowment funds, endowment income, gifts, all othernongeneral fund reserves and balances, or local funds of or held by theCollege or Universities pursuant to § 23-44.1, 23-50.10:01, 23-76.1, or23-122.1. However, selection of these services shall be governed by theUniform Prudent Management of Institutional Funds Act (§ 55-268.11 et seq.)as required by §§ 23-44.1, 23-50.10:01, 23-76.1, and 23-122.1.
6. The Board of the Virginia College Savings Plan for the selection ofservices related to the operation and administration of the Plan, including,but not limited to, contracts or agreements for the management, purchase, orsale of authorized investments or actuarial, record keeping, or consultingservices. However, such selection shall be governed by the standard set forthin § 23-38.80.
7. Public institutions of higher education for the purchase of items forresale at retail bookstores and similar retail outlets operated by suchinstitutions. However, such purchase procedures shall provide for competitionwhere practicable.
8. The purchase of goods and services by agencies of the legislative branchthat may be specifically exempted therefrom by the Chairman of the Committeeon Rules of either the House of Delegates or the Senate. Nor shall thecontract review provisions of § 2.2-2011 apply to such procurements. Theexemption shall be in writing and kept on file with the agency's disbursementrecords.
9. Any town with a population of less than 3,500, except as stipulated in theprovisions of §§ 2.2-4305, 2.2-4308, 2.2-4311, 2.2-4315, 2.2-4330, 2.2-4333through 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 ordinanceor resolution, alternative policies and procedures which are (i) based oncompetitive principles and (ii) generally applicable to procurement of goodsand services by such governing body and its agencies, except as stipulated insubdivision 12.
This exemption shall be applicable only so long as such policies andprocedures, or other policies and procedures meeting the requirements of §2.2-4300, remain in effect in such county, city or town. Such policies andstandards may provide for incentive contracting that offers a contractorwhose bid is accepted the opportunity to share in any cost savings realizedby the locality when project costs are reduced by such contractor, withoutaffecting project quality, during construction of the project. The fee, ifany, charged by the project engineer or architect for determining such costsavings shall be paid as a separate cost and shall not be calculated as partof any cost savings.
11. Any school division whose school board has adopted, by policy orregulation, alternative policies and procedures that are (i) based oncompetitive principles and (ii) generally applicable to procurement of goodsand services by the school board, except as stipulated in subdivision 12.
This exemption shall be applicable only so long as such policies andprocedures, or other policies or procedures meeting the requirements of §2.2-4300, remain in effect in such school division. This provision shall notexempt any school division from any centralized purchasing ordinance dulyadopted 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, citiesand school divisions, and to all towns having a population greater than 3,500in the Commonwealth.
The method for procurement of professional services set forth in subdivision3 a of § 2.2-4301 in the definition of competitive negotiation shall alsoapply to all counties, cities and school divisions, and to all towns having apopulation greater than 3,500, where the cost of the professional service isexpected to exceed $30,000 in the aggregate or for the sum of all phases of acontract or project. A school board that makes purchases through its publicschool foundation or purchases educational technology through its educationaltechnology 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 provisionsof §§ 2.2-4311 and 2.2-4367 through 2.2-4377.
13. A public body that is also a utility operator may purchase servicesthrough or participate in contracts awarded by one or more utility operatorsthat are not public bodies for utility marking services as required by theUnderground Utility Damage Prevention Act (§ 56-265.14 et seq.). A purchaseof services under this subdivision may deviate from the procurementprocedures set forth in this chapter upon a determination made in advance bythe public body and set forth in writing that competitive sealed bidding iseither not practicable or not fiscally advantageous to the public, and thecontract is awarded based on competitive principles.
14. Procurement of any construction or planning and design services forconstruction by a Virginia nonprofit corporation or organization nototherwise specifically exempted when (i) the planning, design or constructionis funded by state appropriations of $10,000 or less or (ii) the Virginianonprofit corporation or organization is obligated to conform to procurementprocedures that are established by federal statutes or regulations, whetherthose federal procedures are in conformance with the provisions of thischapter.
15. Purchases, exchanges, gifts or sales by the Citizens' Advisory Council onFurnishing and Interpreting the Executive Mansion.
16. The Eastern Virginia Medical School in the selection of services relatedto the management and investment of its endowment and other institutionalfunds. The selection of these services shall, however, be governed by theUniform Prudent Management of Institutional Funds Act (§ 55-268.11 et seq.).
17. The Department of Corrections in the selection of pre-release andpost-incarceration services.
18. The Board of the Chippokes Plantation Farm Foundation in entering intoagreements with persons for the construction, operation, and maintenance ofprojects consistent with the Chippokes Plantation State Park Master Planapproved by the Director of the Department of Conservation and Recreationpursuant to the requirements of § 10.1-200.1 and designed to further anappreciation for rural living and the contributions of the agricultural,forestry, and natural resource based industries of the Commonwealth, providedsuch projects are supported solely by private or nonstate funding.
19. The University of Virginia Medical Center to the extent provided bysubdivision B 3 of § 23-77.4.
20. The purchase of goods and services by a local governing body or anyauthority, board, department, instrumentality, institution, agency or otherunit of state government when such purchases are made under a remedial planestablished by the Governor pursuant to subsection C of § 2.2-4310 or by achief administrative officer of a county, city or town pursuant to §15.2-965.1.
21. The contract by community services boards or behavioral healthauthorities with an administrator or management body pursuant to a jointagreement authorized by § 37.2-512 or 37.2-615.
22. (Contingent expiration date, see note.) Procurement of any constructionor planning and design services and contracts with or assigned to GeorgeMason University by the corporation or other legal entity created by theboard of visitors of George Mason University for the establishment andoperation of the branch campus of George Mason University in the Republic ofKorea, pursuant to § 23-91.29:1.
B. Where a procurement transaction involves the expenditure of federalassistance or contract funds, the receipt of which is conditioned uponcompliance with mandatory requirements in federal laws or regulations not inconformance with the provisions of this chapter, a public body may complywith such federal requirements, notwithstanding the provisions of thischapter, only upon the written determination of the Governor, in the case ofstate agencies, or the governing body, in the case of political subdivisions,that acceptance of the grant or contract funds under the applicableconditions is in the public interest. Such determination shall state thespecific provision of this chapter in conflict with the conditions of thegrant or contract.
(1982, c. 647, §§ 11-35, 11-39, 11-40; 1983, c. 593; 1984, cc. 159, 330, 764,§ 11-40.2; 1985, c. 74; 1986, cc. 149, 212, 559; 1987, c. 583; 1991, c. 645;1994, cc. 661, 918; 1995, c. 18; 1996, cc. 261, 280, 683, 1019; 1997, cc. 85,488, 785, 861, 863; 1998, cc. 121, 132; 1999, cc. 230, 248, 735, 910, §11-40.4; 2000, cc. 29, 382, 400, 642, 644, 666, 703; 2001, cc. 392, 409, 736,753, 774, 844; 2002, cc. 87, 478, 491, 582, 595; 2003, cc. 226, 1008; 2004,cc. 145, 865, 891; 2006, c. 656; 2007, cc. 434, 697; 2008, c. 184; 2009, cc.737, 767; 2010, c. 694.)