56-575.16 - Procurement.
§ 56-575.16. Procurement.
The Virginia Public Procurement Act (§ 2.2-4300 et seq.) and anyinterpretations, regulations, or guidelines of the Division of Engineeringand Buildings of the Department of General Services or the VirginiaInformation Technologies Agency, including the Capital Outlay Manual andthose 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 developedby the Division or the Virginia Information Technologies Agency in accordancewith this chapter when the Commonwealth is the responsible public entity,shall not apply to this chapter. However, a responsible public entity mayenter into a comprehensive agreement only in accordance with guidelinesadopted by it as follows:
1. A responsible public entity may enter into a comprehensive agreement inaccordance with guidelines adopted by it that are consistent with procurementthrough competitive sealed bidding as defined in § 2.2-4301 and subsection Bof § 2.2-4310.
2. A responsible public entity may enter into a comprehensive agreement inaccordance with guidelines adopted by it that are consistent with theprocurement of "other than professional services" through competitivenegotiation as defined in § 2.2-4301 and subsection B of § 2.2-4310. Suchresponsible public entity shall not be required to select the proposal withthe lowest price offer, but may consider price as one factor in evaluatingthe proposals received. Other factors that may be considered include (i) theproposed cost of the qualifying facility; (ii) the general reputation,industry experience, and financial capacity of the private entity; (iii) theproposed design of the qualifying project; (iv) the eligibility of thefacility for accelerated selection, review, and documentation timelines underthe responsible public entity's guidelines; (v) local citizen and governmentcomments; (vi) benefits to the public; (vii) the private entity's compliancewith a minority business enterprise participation plan or good faith effortto comply with the goals of such plan; (viii) the private entity's plans toemploy local contractors and residents; and (ix) other criteria that theresponsible public entity deems appropriate.
A responsible public entity shall proceed in accordance with the guidelinesadopted by it pursuant to subdivision 1 unless it determines that proceedingin accordance with the guidelines adopted by it pursuant to this subdivisionis 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 valueor debt or equity investments proposed by the private entity; or (iii) anincrease in funding, dedicated revenue source or other economic benefit thatwould not otherwise be available. When the responsible public entitydetermines to proceed according to the guidelines adopted by it pursuant tothis subdivision, it shall state the reasons for its determination inwriting. If a state agency is the responsible public entity, the approval ofthe responsible Governor's Secretary, or the Governor, shall be requiredbefore the responsible public entity may enter into a comprehensive agreementpursuant to this subdivision.
3. Nothing in this chapter shall authorize or require that a responsiblepublic entity obtain professional services through any process except inaccordance with guidelines adopted by it that are consistent with theprocurement of "professional services" through competitive negotiation asdefined in § 2.2-4301 and subsection B of § 2.2-4310.
4. A responsible public entity shall not proceed to consider any request by aprivate entity for approval of a qualifying project until the responsiblepublic entity has adopted and made publicly available guidelines pursuant to§ 56-575.3:1 that are sufficient to enable the responsible public entity tocomply with this chapter.
5. A responsible public entity that is a school board or a county, city, ortown may enter into an interim or comprehensive agreement under this chapteronly with the approval of the local governing body.
(2002, c. 571; 2003, cc. 292, 968, 1034; 2004, c. 986; 2005, c. 865; 2006, c.936; 2007, c. 764.)