Those with a military background know the drill: hurry up and wait. The VSAIA and its legislative partners in the American Council of Engineering Companies/Virginia are waiting. Waiting for the bills that will attempt to adjust the Virginia Public Procurement Act (VPPA).
The two-year study of the act basically boiled down to a six-month session of wrangling by various constituencies within a citizen work group. The consensus document — drafted by the Department of General Services — was reviewed by the legislative subcommittee on October 24. The VSAIA, ACEC, and our legislative counsel participated on the work group and agreed with most of this draft. During their review, the legislators agreed with our positions and adjusted the draft on two issues. With these changes included, the bill that clears legislative services should:
- Ensure that architects and professional engineers cannot be hired through a job-order contract and
- Ensure that price competition is not used in term contracts.
In addition to the our professions, the work group included people representing contractors, localities, higher education institutions, public utilities, and state agencies. Other issues we introduced at the work group included deleting the non-binding clause in the procurement process and the possibility of developing an enforcement mechanism.
The VSAIA has been an opponent of the “non-binding estimate” for years as it can be misused in at least two ways. First, it cannot be accurate unless substantial conversations have been held to ensure that both client and professional agree upon the entire scope of the project. Without such agreement this “estimate” can be no more than a guess. Further, if these discussions have been held, then there is no need for the “estimate.” The official negotiation phase should begin with the top-ranked firm and the real figures placed on the table.
Second, if an estimate is non-binding, what is its purpose? If public bodies use the figures to rank the firms rather than delve deeper into the qualifications of the firms, it might delay the identification of the most qualified firm. The elimination of the clause received little discussion and no support in the work group.
The procurement work group seeking consensus on changes also was interested in an enforcement mechanism short of a lawsuit that would allow professionals, contractors, and vendors to correct interpretations of the VPPA. This will come up again, but probably not in 2015. At least three methods were mentioned:
- establish a review board with the authority to stop a project,
- establish an advisory board similar to the Freedom of Information Act Council that has public exposure of wrong doing as its weapon, and
- have DGS monitor the procurement process for fairness
The work conducted by staff, members, and legislative counsel in the interim between General Assembly sessions was invaluable in educating many legislators on the intricacies of public procurement. This is required because more than half of House of Delegates members have fewer than five years at the Capitol. The laws they write affect the profession’s business from initial licensure through the statute-of-repose period when the architect’s liability for a specific project ends.
The VSAIA’s members on the Joint Legislative Committee — Robert Burns AIA, Lynden Garland AIA, Kenney Payne AIA, David Puckett AIA, Rhea George, and Duncan Abernathy AIA — and the ACEC members will work with our legislative counsel Reggie Jones Esq. and Patrick Cushing Esq. to address the legislation that affects the profession.
The session begins Wednesday January 14 and is scheduled to end Saturday February 28. We anticipate more than 2,400 bills will be introduced.