A Look Ahead to the General Assembly 2015

Posted on December 11, 2014 by cguske

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.

2013 General Assembly Review

Posted on July 9, 2013 by cguske

Legislative heartburn largely bypassed the architecture profession in 2013. The primary goals of balancing the budget, reforming transportation financing, and entering the Medicaid expansion arena occupied legislators’ attention more than, say, procurement.

However, procurement will become a major target for the next two years as a result of actions within the 2013 session. Not only was the entire Virginia Public Procurement Act reorganized, but the 2013 bill authorizing the changes — and overwhelmingly approved — included a year-long legislative study of the entire Act. This study subsequently was extended to two years.

The Joint Legislative Committee supported the reorganization and amended the legislation to include members of the design professions among those who will testify before the legislative committee about procurement issues. The JLC comprises members of the VSAIA, the American Council of Engineering Companies, and the Virginia Society of Professional Engineers.

As for the session as a whole, it ended on-time with a balanced budget, major transportation financing reform, and a tentative agreement on Medicaid expansion. While any one of these issues could have derailed a timely conclusion, legislators of both parties and the Governor compromised in an almost unprecedented fashion.

During the Reconvene Session, the General Assembly approved a series of modest amendments to both the transportation and Medicaid bills. While more consensus has built around the transportation bill there has been greater disagreement over the future of Medicaid expansion and the interpretation of “reform first” budget language that authorized the expansion. Under the existing language, a panel of legislators appointed by the money committees would have the authority to halt Medicaid expansion if the state is unable to implement reform efforts that would save enough money to cover the cost of expansion when federal reimbursement drops from 100% to 90%.

On behalf of VSAIA, ACEC, and VSPE our team tracked and lobbied a number of bills, most of which involved changes to the public procurement act. Once again, this year we saw a number of procurement preference bills and were able to defeat those that would affect the procurement of professional services.

A significant bill we lobbied, HB 2079 carried by Del. Chris Jones (R-Suffolk), reorganizes several provisions of the VPPA and creates a new definition of “job order contracting.” This bill also includes an enactment clause that charges the House and Senate Chairs of the General Laws committees to convene a workgroup to study the VPPA and recommend changes. We were successful amending the bill to include a representative from the professional services community.

We recently inquired about having a representative of ACEC, VSAIA, or VSPE serve on the study workgroup. According to legislative staff, Delegate Jones decided that for the 2013 interim, representation will be limited only to legislators and no legislative recommendations are anticipated to be be made in 2014. The committee membership is as follows:

• Delegates Jones, David Albo (R-Springfield), Thomas Greason (R-Lansdowne), Nick Rush (R-Christiansburg), and Matthew James (D-Portsmouth)

• Senators Richard Stuart (R-Montross), Chapman Petersen (D-Fairfax), and Bryce Reeves (R-Fredericksburg), with Frank Ruff (R-Clarksville) serving as a substitute as appropriate.

At the first meeting May 14 Maria Everett of the Division of Legislative Services, Rich Sliwoski and others who use the VPPA (colleges, local governments, etc.) provided a briefing to the members. Three additional meetings are contemplated during 2013 and the basic timeframes are: Mid-June; September (after Labor Day); and October. Jim Gehman AIA, Rob Comet AIA, Glenn Rehberger PE, and David Warriner PE will be monitoring this study group at all meetings. The study will continue during 2014 when workgroups will be established.

As we look forward to the remainder of 2013 we will continue to monitor several additional interim study committees, including the Local Mandate Task Force, Joint Subcommittee on Tax Preferences, Housing Commission, as well as several others.

For additional information on each bill below, contact legislative services at http://virginiageneralassembly.gov/ or Duncan Abernathy AIA at daber@aiava.org. A partial list of the bills we reviewed and acted upon follows:

Legislation Enacted

HB 1641 (Knight) Professional and Occupational Regulation, Department of; powers and duties of regulatory boards.

Requires boards within the Department of Professional and Occupational Regulations to notify regulants of any disciplinary actions being considered against them and their rights before the board. The notice must state the time frame in which the regulant may request a fact-finding conference. If the regulant does not wish a conference, the board may issue a decision and forward it for judicial review. If the regulant seeks a hearing prior to the judicial review, the decision will be remanded to a conference. This law applies to the Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects, among others. The bill is identical to SB 1179.

The Joint Legislative Committee supported this measure as a fair way to improve efficiency.

HB 1692 (Jones) Public-Private Transportation Act; receipt of competing proposals, disclosure of business points.

Public-Private Transportation Act of 1995; review of proposals. This law extends the period in which a competitor may attempt to match a proposal received by a public entity to a minimum of 120 days. Public entities must post a notice after receiving a proposal under the PPTA about the time frame and include information on the proposal and the public comment opportunities. The bill further requires, after negotiations are complete and a decision to award is made, that the public entity post the major business points of the agreement and outline how the public can submit comments. This bill is identical to SB 977.

The Joint Legislative Committee supported this measure as a way to increase the competitiveness of the procurement method.

HB 1708 (Habeeb) Summary judgment; use of depositions as basis for motion or to strike evidence.

Civil remedies; use of depositions. Allows information gained through depositions to be used as a basis for declaring a summary judgment, under certain conditions. The bill also allows that a motion for summary judgment seeking dismissal of any claim or demand for punitive damages, except in cases involving driving under the influence, may be granted when based, in whole or in part, upon discovery depositions. This bill incorporates HB 1374.

The Joint Legislative Committee supported this measure as a way to increase judicial efficiency.

HB 1748 (Cosgrove) Limited liability companies; updates Virginia Limited Liability Company Act, technical amendments.

Limited liability companies. Updates the Virginia Limited Liability Company Act to (i) provide a single standard for the execution by foreign limited liability companies of documents; (ii) provide for the perpetual existence of a Virginia limited liability company, which will be presumed unless a specified period of duration is set forth in the articles of organization; (iii) provide a requirement for the inclusion of an identification number in certain documents; and (iv) align annual registration fee assessment and domestication provisions with similar provisions applicable to other business entities. The measure also includes technical amendments.

The Joint Legislative Committee took no position on this measure as it did not appear to affect our profession. The committee always reviews such bills.

HB 1913 (Surovell) Mechanics’ liens; licensed contractors.

Mechanics’ liens; licensed contractors. Provides that a person who is not a licensed contractor may not claim a mechanic’s lien if a valid contractor’s license or certificate was required by law for the labor performed.

The Joint Legislative Committee took no position on this measure. Counsel determined that professionals were protected sufficiently through previous judicial actions and that inserting language in a bill specifically aimed at contractors may pose more problems than it solved.

HB 2079 (Jones) VA Public Procurement Act; process for competitive sealed bidding and negotiation.

Virginia Public Procurement Act; methods of procurement. Reorganizes the definitions of and processes for competitive sealed bidding and competitive negotiation. The bill also adds a definition of job order contracting and specifies procedures to be used by public bodies when utilizing job order contracting. The provisions do not become effective until July 1, 2014. The bill also requires the chairs of the House Committee on General Laws and the Senate Committee on General Laws and Technology to convene a work group in 2013 to examine the provisions of the Virginia Public Procurement Act.

The Joint Legislative Committee amended this measure to include professionals in the ensuing legislative study. While the committee supported the reorganization as beneficial to the general understanding of the Act, it is pursuing its role as an advocate for the Act’s provisions that protect the public. Specifically, the JLC members will reinforce the benefits to the public in requiring that professionals be hired based upon qualifications first, rather than price.

HB 2128 (Byron) Virginia Public Procurement Act; small procurements.

Virginia Public Procurement Act; small procurements; localities. Provides that local public bodies are not required to post on the Department of General Services’ central electronic procurement website for small purchase procurements.

The Joint Legislative Committee took no position on this measure. Small procurements (defined as less than $50,000 in total fees by the state) are best advertised through local media outlets.

HB 2190 (Cosgrove) Stormwater management ordinances; requires localities to adopt more stringent requirements, etc.

Stringency of stormwater management ordinances. Establishes a procedure for state review of the stringency of local stormwater ordinances. The bill requires localities within 30 days of the adoption of a more stringent stormwater ordinance or requirement to submit a letter report to the Department of Conservation and Recreation. The letter report is to include an explanation as to why the more stringent ordinance or requirement is necessary. In addition, within 90 days of the ordinance’s adoption, a landowner or his agent can request the Department of Conservation and Recreation to determine whether the ordinance or requirement meets the standards of the state law. The Department has 90 days to make such a determination.

The Joint Legislative Committee took no position on this bill. The measures sought seemed appropriate and did not appear to require our support.

HB 2306 (Ramadan)Eminent domain; current assessed value of real property, tax assessments.

Eminent domain; just compensation; tax assessments. Provides that just compensation paid for real property taken pursuant to eminent domain shall not be less than the greater of (i) the appraisal of the fair market value of such property, if such an appraisal is required, or (ii) the current assessed value of such property for real estate tax purposes when the entire parcel for which the assessment has been made is to be acquired, provided that the property has not physically changed in a material and substantial way since the current assessment was made such that the assessment no longer represents the property’s value. Nothing in the bill makes evidence of tax assessments admissible as proof of value in an eminent domain proceeding. Under current law, just compensation shall not be less than the appraisal of fair market value if such an appraisal is required.

The Joint Legislative Committee took no position on this bill. The measures sought seemed appropriate and did not appear to require our support.

HB 2316 (Byron) Virginia Public Procurement Act; multiple project contracts for architectural, etc., services.

Virginia Public Procurement Act; multiple project contracts for architectural or professional engineering services relating to construction. Raises, in the case of airport and aviation transportation projects, the maximum cost of architectural or professional engineering services for all projects in one contract term of a multiple project contract from $500,000 to $1.5 million and for any single project from $100,000 to $500,000. For a locality or authority or sanitation district with a population in excess of 80,000, the bill raises the maximum cost of such services from $1 million to $2 million. The bill is identical to SB 1246.

The Joint Legislative Committee took no position on this bill. The measures sought seemed appropriate and did not appear to require our support.

SB 902 (Reeves) Virginia Public Procurement Act; alternative forms of security, acceptance of cashier’s check.

Virginia Public Procurement Act; alternative forms of security. Authorizes the acceptance of a cashier’s check in lieu of a bid, payment, or performance bond. Currently the only acceptable alternative forms of security are a certified check or cash escrow.

The Joint Legislative Committee took no position on this bill as it did not affect our professions.

SB 1179 (Ruff) Department of Professional and Occupational Regulation; powers and duties of regulatory boards.

The Joint Legislative Committee supported this measure. See HB 1641 above.

SB 1197 (Saslaw) Virginia Public Procurement Act; contracts for architectural or professional engineering services.

Virginia Public Procurement Act; contracts for architectural or professional engineering services by certain localities. Authorizes any city within Planning District 8 to enter into individual contracts for architectural or professional engineering services up to $5 million. Planning District 8 is composed of the Counties of Arlington, Fairfax, Loudoun, and Prince William; the Cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park; and the Towns of Dumfries, Herndon, Leesburg, Purcellville, and Vienna. Currently, the authority to enter into such contracts is limited to localities and local authorities, sanitation districts, metropolitan planning organizations, or planning district commissions with populations in excess of 80,000.

The Joint Legislative Committee took no position on this bill. The measures sought seemed appropriate and did not appear to require our support.

SB 1246 (Colgan)Virginia Public Procurement Act; multiple project contracts for architectural, etc., services.

The Joint Legislative Committee took no position on this measure. See HB 2316 above.

Failed Legislation

HB 1304 (Habeeb) Income tax, corporate; credit for contracting with small or minority-owned, etc., businesses.

Tax credit for contracting with small or minority-owned, veteran-owned, or women-owned businesses. Establishes a corporate income tax credit beginning January 1, 2013, for federal contractors with at least 250 full-time employees that subcontract with small or minority-owned, veteran-owned, or women-owned businesses to perform federal government contract work. The tax credit would equal five percent of the amount paid by the federal contractor under the subcontract to the small or minority-owned, veteran-owned, or women-owned business. The small or minority-owned, veteran-owned, or women-owned business would be required to perform all subcontract work in Virginia within a Historically Underutilized Business Zone or a state enterprise zone.

The Department of Business Assistance would issue the tax credits and would be authorized to issue up to $10 million in tax credits each fiscal year. The tax credit would sunset on December 31, 2017.

The Joint Legislative Committee supported this measure as a way to support small businesses (95 percent of architecture firms fall within the federal definition of “small”).

HB 1374 (Head) Summary judgment; use of depositions.

The Joint Legislative Committee supported this measure. It was incorporated into HB1708 (see above), which passed.

HB 1382 (Webert) Unemployment compensation; disqualification from benefits due to loss of license or certification.

Unemployment compensation; disqualification from benefits due to loss of license or certification. Provides that an individual is ineligible for unemployment benefits if he has been discharged because he lost or failed to renew a license or certification that is required for his job.

The Joint Legislative Committee took no position on this bill because it appeared unlikely to affect our professions.

HB 1722 (Head) Facilities; assistance and documentation to person seeking business license, etc.

Assistance and documentation required from localities. Provides that in any instance in which a person is seeking a business permit, a license, or an application for any similar local government approval from a locality, the locality shall provide documentation and instructions that outline all steps necessary to obtain the permit, license or approval. The locality shall also specify any further permit, license or other approval that may be required to complete the original project or business activity and shall disclose the expected time required by the locality for the completion of each step of the process to obtain the license, permit or other approval.

The Joint Legislative Committee took no position on this bill. While it supported its intent, financial conditions made its passage questionable.

HB 1823 (Villanueva) Public procurement; posting by local public bodies of procurement opportunities.

Public procurement; posting by local public bodies of procurement opportunities. Requires local public bodies to post certain required procurement notices on the Department of General Services’ central electronic procurement website and makes newspaper publication or posting on other appropriate websites optional. The bill incorporates HB 2170.

The Joint Legislative Committee took no position on this measure. While the committee views a central location for RFPs as beneficial, it sees no harm in additional postings.

HB 1831 (Lingamfelter) Businesses, beginning; tax incentives.

Tax incentives for beginning businesses. Exempts beginning businesses owned by disabled veterans with service-connected disabilities from certain fees imposed by the State Corporation Commission (SCC) and exempts all beginning businesses from the local business license tax. The bill also establishes state tax credits for beginning businesses for local personal property taxes paid by such businesses. The exemptions and tax credits would apply up through the first two full years that the business is in operation in the Commonwealth.

The Joint Legislative Committee took no position on this bill. While it supported its intent, financial conditions made its passage questionable.

HB 1882 (Morrissey) Virginia Public Procurement Act; resident employment and apprenticeship participation.

Virginia Public Procurement Act; resident employment and apprenticeship participation; required contract provisions. Requires all public bodies to include in every contract of more than $100,000 that involves the performance of work within the Commonwealth provisions requiring the contractor to agree (i) that 51 percent of all positions created in performance of the contract be filled by Virginia residents, (ii) that 35 percent of the total hours worked by apprentices in positions created in performance of the contract be performed by Virginia residents, and (iii) to use the Virginia Employment Commission as the first source of referral for obtaining qualified applicants for any new position.

The Joint Legislative Committee took no position on this measure as it specifically exempts professions.

HB 1951 (Yancey) Virginia Public Procurement Act; bid match preference for Virginia businesses.

Virginia Public Procurement Act; bid match preference for Virginia businesses. Provides a bid match preference for Virginia business. Under the bill, a Virginia business has an opportunity to match the lowest bid of an out-of-state bidder if the bid of a Virginia business is within five percent of the lowest bid of an out-of-state bidder.

The Joint Legislative Committee opposed this bill and has opposed every “preference” bill as a poison pill that would generate similar measures in adjacent states, which results in a return to status quo.

HB 2078 (Peace) Public procurement; increases public notice of requests for proposals, technical amendments.

Public procurement; design-build; construction management; protests; private investment. Increases public notice of requests for proposals from 10 to 30 days. The bill also (i) limits the use of competitive negotiation for construction projects, including certain public institutions of higher education, for which the aggregate or sum of all phases is not expected to exceed $10 million, the nature of the project is such that it is unusually complex or extraordinary conditions exist, and the Director of the Department of General Services and the Secretary of Administration certify such conditions exist; (ii) requires posting on eVa and other appropriate websites for state and local public bodies using certain methods of procurement; (iii) changes the process for procurement of design-build or construction management projects; and (iv) allows a bidder or offeror to protest a public body’s use of competitive negotiation. The bill contains technical amendments.

The Joint Legislative Committee opposed this bill. The language in the bill contradicted existing law concerning the procurement of professional services in several instances.

HB 2170 (Cole) Public procurement; posting by local public bodies of procurement opportunities.

The Joint Legislative Committee took no position on this measure. See HB 1823 above.

HB 2205 (Webert) Virginia Public Procurement Act; qualified Virginia businesses afforded opportunity to bid.

Virginia Public Procurement Act; qualified Virginia businesses afforded opportunity to bid. Requires a public body to solicit bids directly from potential contractors who are residents of Virginia and have been prequalified or deemed qualified under the criteria set forth in the solicitation. The bill defines businesses that are Virginia residents.

The Joint Legislative Committee opposed this measure as it indicated that bidding would be appropriate for professional services.

HB 2210 (Scott, J.M.) Virginia Public Procurement Act; procurement of professional services.

Virginia Public Procurement Act; procurement of professional services. Allows any city located in Planning District 8 to procure architectural or professional engineering services relating to multiple construction projects where the sum of all such projects does not exceed $5 million. The bill also allows such localities to procure such services for a single project where the project does not exceed $1 million. Currently, only localities with a population in excess of 80,000 have this authority.

The Joint Legislative Committee took no position on this measure. See SB 1197 above, which passed.

HB 2212 (McQuinn) Women-owned and minority-owned businesses; enhancement measures.

Virginia Public Procurement Act; women-owned and minority-owned businesses; remedial measures. Provides that the Governor shall require state agencies to implement appropriate enhancement or remedial measures consistent with prevailing law when a persuasive analysis exists that documents statistically significant disparity between the availability and utilization of women-owned and minority-owned businesses.

The Joint Legislative Committee opposed this bill. Current provisions encourage such actions.

HB 2296 (Bulova) Virginia Urban Best Management Practices Cost-Share Program Fund; established.

Best management cost-share program. Requires the Department of Conservation and Recreation to administer an urban best management practices cost-share program. The program would provide matching funds of up to 50 percent to promote best management practices on private property. Eligible projects must be located in a locality subject to MS4 Phase I or Phase II stormwater permits. The bill also establishes the Virginia Urban Best Management Practices Cost-Share Fund as a subfund of the Virginia Water Quality Improvement Fund to provide the matching funds for the cost-share program.

The Joint Legislative Committee took no position on this bill. While it supported its intent, financial conditions made its passage questionable.

HJ 755 (Howell, W.J.) Tax restructuring; elimination of BPOL, Machinery and Tool, etc., Taxes.

Tax restructuring; report. Requests the Virginia Municipal League, Virginia Association of Counties, Virginia Small Business Commission, and Virginia Manufacturing Development Commission to evaluate and develop a plan for implementing tax restructuring to eliminate the BPOL, Machinery and Tool, and Merchants’ Capital Taxes.

The Joint Legislative Committee took no position on this resolution. As a general practice, the JLC presents comments on resolutions or studies, but does not take positions.

SB 844 (Carrico) Courthouse repair; certain counties may appoint committee to examine court facilities.

Courthouse repair. Provides that counties with a population of less than 75,000 may by ordinance appoint a committee to examine court facilities and to report whether the court facilities are insecure, out of repair, or otherwise pose a danger to the health, welfare, and safety of court employees or the public.

The Joint Legislative Committee took no position on this measure. While it supported its intent, it held little employment promise for A/E professions.

SB 860 (Lucas) State entities; procurement by using public-private partnerships.

Procurement by state entities using public-private partnerships; Public-Private Transportation Act; Public-Private Education Facilities and Infrastructure Act of 2002. Provides that no real property asset that produces annual average revenue for the Commonwealth of $10 million or more over the five most recent fiscal years, or $10 million revenue for the Commonwealth in the most recent fiscal year, may be (i) the subject of any lease, concession agreement, or similar type of agreement that transfers to a nongovernmental entity possession or control of the asset for more than 10 years at a time, including any renewal; (ii) sold; or (iii) securitized as a part of a qualified transportation facility under the Public-Private Transportation Act of 1995 or a qualified project under the Public-Private Education Facilities and Infrastructure Act of 2002 unless it has been declared to be surplus property. The bill also requires any comprehensive agreement for a qualifying transportation facility where the responsible public entity is a state entity to provide a summary containing the major business points of the agreement to the Public-Private Partnership Advisory Commission for review and comment. In addition, the bill provides that any proposed comprehensive agreement for a qualifying transportation facility, when the responsible public entity is an agency or institution of the Commonwealth, that (a) creates state tax-supported debt, (b) requires a level of appropriation beyond the appropriation received by the responsible public entity in the most recent appropriation act, or (c) alters the Commonwealth’s discretion to change the level of services or the funding for such services over time must be reviewed by the General Assembly prior to execution.

The Joint Legislative Committee took no position on this bill. The measures, however, seemed prescient in light of a judge’s actions later that called into question the concept of private firms charging for public facilities.

SB 990 (Miller) Virginia Public Procurement Act; bid match preference for Virginia businesses.

SB 1170 (Deeds) Virginia Public Procurement Act; resident employment and apprenticeship participation.

The Joint Legislative Committee took no position on this measure as it specifically exempts professions. See HB 1882 above.

SJ 281 (Petersen) Constitutional amendment; tax credits (first reference).

Constitutional amendment (first resolution); tax credits. Provides that no tax credit shall remain in effect longer than five years unless it is reenacted by the General Assembly.

The Joint Legislative Committee opposed this measure as it would have jeopardized the credits for historic renovations and rehabilitation, both of which have catalytic effects on energizing the urban cores of cities and towns throughout Virginia.

Potentially Sticky Issues Anticipated in Coming General Assembly Session

Posted on January 9, 2013 by cguske

Few anticipate General Assembly sessions with glee. Most approach them with caution. Architects fall into the latter group.

Why? Because architects are licensed by the state, regulated by the state, and often find their fate affected by the state. In the upcoming session, the Joint Legislative Committee and its legislative counsel anticipate a few sticky issues arising.

Among the most likely will be swapping the ever unappealing business, occupational and professional license (BPOL) gross-receipts tax for a tax on services and another attack on the Virginia Public Procurement Act (VPPA) and its provision for qualifications-based selection of professionals.

Early discussions indicated that a tax swap would aim to be revenue neutral. This means that revenues from a service tax would be designed to equal the revenue raised from the BPOL tax. The difficulty is that the BPOL tax is a local tax, assessed, collected and allocated as the locality wishes. The state establishes the maximum rate for each business class — 58 cents per $100 of receipts for architects — and the locality may set its assessment anywhere from zero, as several do, to the maximum.

Through the VPPA, the General Assembly in the early 1980s required for all public bodies a different method for procuring professional services. For goods and non-professional services, price could be the determining factor. For professional services, the public body — state agencies; quasi-public authorities; school boards; cities, counties and towns; etc. — must first determine what firms are qualified without consideration of price.

To do this, public bodies are required to request proposals that describe the professional firm’s methods and capabilities for handling a specific project or project type. The initial request for a proposal cannot ask for fee information. In this way, the public entity can trim the list of potential providers to only those it believes are most qualified.

At that point, the agency or locality begins to discuss the details of the project, outlining, defining, and refining the specific scope and limitations of what is expected of the professional firm. When that scope is suitably understood and agreed upon by both the agency or locality and the firms, the firms are ranked.

The public entity then begins negotiations with its top-ranked firm. If a suitable price cannot be reached, negotiations are formally ended and negotiations begin with the second-ranked firm.

The federal government and most state governments have employed this system for decades as it has proved the best system to provide transparency in the procurement process and lessen the chances of favoritism.

2012 Legislative Summary

Posted on June 1, 2012 by cguske

Written by Williams Mullen

Overview of Legislation of Interest to the Virginia Society of American Institute of Architects

Eminent domain and public procurement occupied much of the lobbying effort during the 2012 legislative session for the VSAIA. In addition to monitoring the progress of hundreds of individual bills and providing comments on several minor issues, we were actively engaged on several major topics, which are listed below:

Eminent Domain

This year the General Assembly considered the final passage of a constitutional amendment that would restrict the use of eminent domain and provide greater compensation for “lost profits” and “lost access” once land is taken by a public entity. We lobbied hard to ensure legislators considered the effect the constitutional amendment would have on public procurement projects that required the use of condemnation. As direct providers of professional services to state and local governments, we lobbied to have the legislation delayed by an additional year to make sure the language in the amendment did not have any unintended consequences. The greatest concern for providers of professional services was that the amendment would significantly increase the cost of projects, expose public entities to costly litigation, and delay the development of major state and local projects.

Although a large number of business groups recommended the amendment be delayed an additional year, we were unable to overcome the urgency legislators expressed to get this amendment passed. Our comments, as well as those from realtors, homebuilders, public service companies, road builders, and local governments were taken into account in a separate bill that was introduced to provide greater definition to the terms “lost profit” and “lost access”. The changes made to this bill were a good compromise and provided a greater level of certainty to the condemnation proceedings and subsequent compensation process.

The sense of urgency and political drive behind this amendment is the lingering backlash from the 2005 Supreme Court case, Kelo v. City of New London, in which the Court upheld a condemnation where land was taken by a local government and transferred directly to a private corporation for ‘economic development’ purposes. Although the General Assembly immediately amended the Code to prevent this type of taking in Virginia, legislators remained fearful the law might be diluted in future legislative sessions and sought to provide further protections in the Virginia Constitution.

As part of the process of amending the Virginia Constitution, citizens will vote in a statewide referendum in the November elections to approve or reject the amendment.

Procurement Preferences

Several bills introduced sought to provide some form of bid match or quantitative scoring preferences for companies participating in public procurement projects. Listed below is a summary of the procurement preferences and mandates that were proposed during the 2012 Session:

Bid match preference for companies located within a locality (for local procurement);
Bid match preference for companies located within Virginia (for state procurement);
Requirements that steel and other manufactured goods used in construction projects be produced in the US; and
Requirement that a certain portion of new jobs created be filled with local residents.

We are glad to report we were successful in working with a number of other industries and companies to defeat these measures. Although many legislators were sympathetic to the use of local companies and local products, we made a compelling case that these efforts would increase the cost of procuring goods and professional services, as well as trigger ‘reciprocity’ provisions in other states.

Exemptions from Public Procurement Laws

In addition to the above procurement preferences, the General Assembly also considered changing the rules for local procurement of professional services. Driving this effort was the Governor’s Office and a series of recommendations generated by the Governor’s Task Force on Local Mandates. The Task Force came forward with hundreds of local mandates that local governments considered a burden or unnecessary. One of the specific recommendations made by local governments was that they should be allowed greater flexibility and leniency in the procurement of professional services. Current law requires local governments to follow state procurement guidelines and use competitive negotiation for any contract over $50,000. The Task Force recommendation sought to raise this limit to $100,000. After several meetings with legislators and the Governor’s Office we brokered a deal that allowed the threshold to be raised to $60,000. This was a hard-fought victory and we believe the effort put forth to prevent changes in procurement procedures will make the proponents think twice before introducing similar legislation in the near future.

As in the past, the VSAIA is joined in its legislative efforts on the Joint Legislative Committee by members of the American Council of Engineering Companies/Virginia and the Virginia Society of Professional Engineers. The lobbying effort is led by Reggie Jones Esq. and Patrick Cushing Esq., both from Williams Mullen. Architects on the committee were David Puckett AIA and Tom Heatwole AIA.

Below, please find a more complete description of several of the bills followed by our team. Those bills that were labeled as “left in committee,” “tabled,” “continued to 2013,” or similar language were killed for this year and might not return in 2013. You can find more information on each measure by clicking on the blue hyperlinks below:

1. HB 5 Constitutional amendment; taking or damaging of private property for public use (voter referendum).

Chief patron: Bell, Robert B.

Summary as passed House:

Constitutional amendment (voter referendum); taking or damaging of private property; public use. Provides for a referendum at the November 6, 2012, election to approve or reject an amendment that revises the prohibition on the enactment by the General Assembly of laws whereby private property may be taken or damaged without just compensation. The bill is identical to SB 240.

03/01/12 House: Signed by Speaker
03/03/12 Senate: Signed by President
03/14/12 House: Bill text as passed House and Senate reprinted (HB5ER)
04/09/12 Governor: Approved by Governor-Chapter 684 (effective 7/1/12)
04/09/12 Governor: Acts of Assembly Chapter text (CHAP0684)

2. HB 228 Income tax, corporate; credit for contracting with small or minority-owned businesses.

Chief patron: Habeeb

Summary as introduced:
Tax credit for contracting with small or minority-owned, veteran-owned, or women-owned businesses. Establishes a corporate income tax credit beginning January 1, 2013, for federal contractors with at least 250 full-time employees that subcontract with small or minority-owned, veteran-owned, or women-owned businesses to perform federal government contract work. The tax credit would equal five percent of the amount paid by the federal contractor under the subcontract to the small or minority-owned, veteran-owned, or women-owned business. The small or minority-owned, veteran-owned, or women-owned business would be required to perform all subcontract work in a Historically Underutilized Business Zone or a state enterprise zone.

Tax credits would be capped at $10 million each fiscal year. The tax credit would sunset on December 31, 2017.

01/10/12 House: Prefiled and ordered printed; offered 01/11/12 12103226D
01/10/12 House: Referred to Committee on Finance
01/12/12 House: Assigned Finance sub: Subcommittee #3
01/27/12 House: Impact statement from TAX (HB228)
02/06/12 House: Continued to 2013 in Finance

3. HB 334 Public Procurement Act; bid match preference for State businesses.

Chief patron: Villanueva

Summary as introduced:
Virginia Public Procurement Act; bid match preference for Virginia businesses. Provides a bid match preference for Virginia business in procurements up to $100,000. Under the bill, a Virginia business has an opportunity to match the lowest bid of an out-of-state bidder if the bid of a Virginia business is within five percent or $10,000 of the lowest bid of an out of state bidder, whichever is less.

01/13/12 House: Assigned GL sub: #2 FOIA/Procurement
01/18/12 House: Impact statement from DPB (HB334)
02/09/12 House: Subcommittee recommends continuing to 2013 with amendment(s)
02/09/12 House: Committee amendment
02/09/12 House: Continued to 2013 with amendment(s) in General Laws

4. HB 390 General Assembly; creation of new regulatory program, etc.

Chief patron: Gilbert

Summary as introduced:
General Assembly; creation of new regulatory program; study by the Board for Professional and Occupational Regulation. Provides that no bill that would result in the creation of a new regulatory program or a change in the level of regulation of a profession or occupation shall be considered in any session of the General Assembly unless the bill contains subsequent enactment clauses that (i) require the Board for Professional and Occupational Regulation to determine the need for the new regulatory program or change in the level of regulation and (ii) provide that the bill shall not become effective unless reenacted by the next legislative session immediately following the legislative session in which the bill was first enacted. The bill requires the Board for Professional and Occupational Regulation to submit a report of its findings to the chairmen of the standing committees having subject matter jurisdiction on or before December 1 of the year in which the bill was first enacted. The bill further provides that it only applies to a new regulatory program or a change in the level of regulation of a profession or occupation for which the Department of Professional and Occupational Regulation or a regulatory board within the Department is or would be responsible.

01/10/12 House: Prefiled and ordered printed; offered 01/11/12 12100991D
01/10/12 House: Referred to Committee on Rules
01/17/12 House: Impact statement from DPB (HB390)
01/31/12 House: Tabled in Rules

5. HB 449 Virginia Public Procurement Act; preferences by localities, etc.

Chief patron: Toscano

Summary as introduced:

Virginia Public Procurement Act; preferences by localities, public institutions of higher education, and regional public bodies. Allows a locality to give a procurement preference for goods, services, and construction produced in the locality or by persons, firms, or corporations having principal places of business in the locality. The bill also allows public bodies that are public institutions of higher education or regional public bodies to give such a preference to goods, services, and construction produced in the localities in which the institution or regional public body is located. Currently such preference is allowed only in the case of a tie.

01/10/12 House: Prefiled and ordered printed; offered 01/11/12 12103400D
01/10/12 House: Referred to Committee on General Laws
01/13/12 House: Assigned GL sub: #2 FOIA/Procurement
02/02/12 House: Subcommittee recommends laying on the table
02/14/12 House: Left in General Laws

6. HB 529 Virginia Public Procurement Act; preference for local products and firms.

Chief patron: McQuinn

Summary as introduced:
Virginia Public Procurement Act; preference for local products and firms; applicability. Authorizes localities to apply a preference for bidders or offerors located in the locality of up to 10 percent, provided (i) for competitive sealed bidding the percentage of the discount is stated in the Invitation to Bid, (ii) for competitive negotiations the percentage of the increase is stated in the Request for Proposal, and (iii) the discount percentage or increase percentage is included in the informal solicitation for small purchase.

01/10/12 House: Referred to Committee on General Laws
01/18/12 House: Impact statement from DPB (HB529)
01/27/12 House: Assigned GL sub: #2 FOIA/Procurement
02/02/12 House: Subcommittee recommends laying on the table
02/14/12 House: Left in General Laws

7. HB 530 Virginia Public Procurement Act; permissive contract provisions for localities.

Chief patron: McQuinn

Summary as introduced:
Virginia Public Procurement Act; permissive contract provisions for localities; resident employment. Authorizes any locality to include in its contracts a provision requiring the contractor to ensure that a specified percentage, not to exceed 20 percent, of the work under the contract be performed by residents of the locality.

01/10/12 House: Referred to Committee on General Laws
01/18/12 House: Impact statement from DPB (HB530)
01/27/12 House: Assigned GL sub: #2 FOIA/Procurement
02/02/12 House: Subcommittee recommends laying on the table
02/14/12 House: Left in General Laws

8. HB 597 Eminent domain; definitions of lost profits and access.

Chief patron: Crockett-Stark

Summary as introduced:

Eminent domain; lost profits and access. Provides definitions for the terms “lost profits” and “lost access” and how to determine the amount of just compensation, which includes lost profits and lost access resulting from the taking, that must be paid for property taken by eminent domain. The bill has a contingent effective date of January 1, 2013, provided that the voters approve an amendment to Section 11 of Article I of the Constitution of Virginia at the 2012 November election. This bill was incorporated into HB 1035.

01/10/12 House: Referred to Committee for Courts of Justice
01/13/12 House: Assigned Courts sub: Civil
02/01/12 House: Impact statement from DPB (HB597)
02/01/12 House: Subcommittee recommends incorporating (HB1035-Joannou)
02/03/12 House: Incorporated by Courts of Justice (HB1035-Joannou)

9. HB 938 Military training, etc.; regulatory boards to accept as equivalent to requirements for licensures.

Chief patron: Lingamfelter

Summary as passed House:

Professions and occupations; qualifications for licensure; substantially equivalent military training and education. Requires the regulatory boards within the Department of Professional and Occupational Regulation, the Department of Health Professions, or any board named in Title 54.1 except the Board of Medicine and the Board of Dentistry, to accept the military training, education, or experience of a service member returning from active military service in the armed forces of the United States, to the extent that such training, education, or experience is substantially equivalent to the requirements established by law and regulations of the respective board for the issuance of any license, permit, certificate, or other document, however styled or denominated, required for the practice of any business, profession, or calling in the Commonwealth. The bill provides that to the extent that the service member’s military training, education, or experience, or portion thereof, is not deemed substantially equivalent, the respective board shall credit whatever portion of the military training, education, or experience that is substantially equivalent toward meeting the requirements for the issuance of the license, permit, certificate, or other document. The bill authorizes a regulatory board to require the service member to provide such documentation of his training, education, or experience as deemed necessary to determine substantial equivalency. The bill defines the term “active military service.”

02/29/12 House: Impact statement from DPB (HB938ER)
02/29/12 House: Signed by Speaker
03/01/12 Senate: Signed by President
04/04/12 Governor: Approved by Governor-Chapter 524 (effective 7/1/12)
04/04/12 Governor: Acts of Assembly Chapter text (CHAP0524)

10. HB 1035 Eminent domain; definitions of lost access and lost profits, determining compensation.

Chief patron: Joannou

Summary as passed:

03/06/12 House: Signed by Speaker
03/08/12 House: Impact statement from DPB (HB1035ER)
03/08/12 Senate: Signed by President
04/09/12 Governor: Approved by Governor-Chapter 699 (effective – see bill)
04/09/12 Governor: Acts of Assembly Chapter text (CHAP0699)

11. HB 1145 Virginia Public Procurement Act; preference for local businesses.

Chief patron: Sherwood

Summary as introduced:
Virginia Public Procurement Act; preference for local businesses. Allows a locality to give a procurement preference to persons, firms, or corporations having principal places of business in the locality if such bidder’s bid is within five percent of the lowest bid. The bill provides that prior to awarding a contract under the preference, the locality must certify in writing that (i) exercising the preference provides goods, services, and construction comparable in quality to that of other non-local bids and (ii) using a local business provides beneficial economic effects in the community through creating and sustaining local jobs and by generating local tax revenues.

01/16/12 House: Referred to Committee on General Laws
01/19/12 House: Impact statement from DPB (HB1145)
01/27/12 House: Assigned GL sub: #2 FOIA/Procurement
02/02/12 House: Subcommittee recommends laying on the table
02/14/12 House: Left in General Laws

12. HB 1167 High Performance Buildings Act; created.

Chief patron: Jones

Summary as passed House:

High Performance Buildings Act. Requires executive branch agencies and institutions entering the design phase for the construction of a new building greater than 5,000 gross square feet in size, or renovating such a building where the cost of renovation exceeds 50 percent of the value of the building, to conform to Virginia Energy Conservation and Environmental Standards developed by the Department of General Services considering the U.S. Green Building Council (LEED) green building rating and other appropriate requirements. Exemptions from the requirement may be granted by the Director of the Department of General Services upon a finding of special circumstances that make construction or renovation to the standards impracticable. The bill incorporates HB 788.

04/18/12 House: Signed by Speaker as reenrolled
04/18/12 Senate: Signed by President as reenrolled
04/18/12 House: Reenrolled bill text (HB1167ER2)
04/18/12 Governor: Approved by Governor-Chapter 793 (effective 7/1/12)
04/18/12 Governor: Acts of Assembly Chapter text (CHAP0793)

13. HB 1187 Noncompetition agreements; prohibits contract that serves to restrict an employee from engaging.

Chief patron: Hope

Summary as introduced:
Noncompetition agreements. Makes unlawful any contract that serves to restrict an employee or former employee from engaging in a lawful profession, trade, or business of any kind. Exceptions are created for persons selling a business, former partners in a partnership, and former members in a limited liability company, who agree to refrain from carrying on a similar business within a specified geographic area in which the original entity carries on business.

01/18/12 House: Presented and ordered printed 12104107D
01/18/12 House: Referred to Committee on Commerce and Labor
01/31/12 House: Assigned C & L sub: #1
02/07/12 House: Subcommittee recommends laying on the table
02/14/12 House: Left in Commerce and Labor (0-Y 0-N)

14. HB 1193 Public procurement; posting by local public bodies of procurement opportunities.

Chief patron: Villanueva

Summary as introduced:
Public procurement; posting by local public bodies of procurement opportunities. Requires local public bodies to post required procurement notices on the Department of General Services’ central electronic procurement website and makes newspaper publication optional. Currently, only state public bodies are required to post procurement notices on the Department of General Services’ central electronic procurement website.

02/14/12 House: Read third time and passed House (78-Y 21-N)
02/14/12 House: VOTE: PASSAGE (78-Y 21-N)
02/15/12 Senate: Constitutional reading dispensed
02/15/12 Senate: Referred to Committee on General Laws and Technology
02/27/12 Senate: Passed by indefinitely in General Laws and Technology (10-Y 4-N)

15. HB 1295 State mandates; eliminating on local and regional government entities relating to education, etc.

Chief patron: Byron

Summary as passed:

Elimination of certain state mandates on local entities. Eliminates several statewide mandates on local government and regional government entities. The bill does the following: (i) removes the requirement that surplus property be offered to political subdivisions or volunteer fire and rescue squads before being sold at a public sale or auction, (ii) raises the ceiling for professional service contracts that a locality may enter without competitive negotiation to $60,000 from $50,000, (iii) eliminates the requirement that a lease of property owned by any political subdivision, or privately owned, licensed public use airport be approved by the Department, (iv) removes the requirement for localities to obtain VDOT approval for red light camera locations, (v) clarifies that the local courts cannot require localities to construct a new or additional courthouse, (vi) eliminates requirements for reporting Urban Development Areas to the Commission on Local Government, (vii) removes the requirement for establishing local advisory committees on gifted education and the annual reporting by such committees, (viii) eliminates the requirement to provide the estimated per pupil cost for public education of individual school to each parent or guardian of the enrolled child, (ix) removes the requirement that proceeds from the sale of local education surplus property be applied to capital improvements, (x) eliminates the requirement to establish a school health board, (xi) removes annual contract requirements for community service boards, (xii) eliminates Internet policy mandates on local libraries, (xiii) changes requirement to give first priority for vending contracts to the blind from mandatory to a local option, and (xiv) repeals the requirement for civics training for teachers in order to renew license. The bill also makes technical changes. The bill is identical to SB 679.

04/18/12 House: Signed by Speaker as reenrolled
04/18/12 Senate: Signed by President as reenrolled
04/18/12 House: Reenrolled bill text (HB1295ER2)
04/18/12 Governor: Approved by Governor-Chapter 805 (effective 7/1/12)
04/18/12 Governor: Acts of Assembly Chapter text (CHAP0805)

16. HJ 3 Constitutional amendment; taking or damaging of private property for public use (second reference).

Chief patron: Bell, Robert B.

Summary as introduced:
Constitutional amendment (second resolution); taking or damaging of private property; public use. Revises the prohibition on the enactment by the General Assembly of laws whereby private property may be taken or damaged. An existing provision authorizing the General Assembly to define what constitutes a public use is removed. The proposed amendment provides that private property can be taken or damaged only for a public use, only with just compensation to the owner, and only so much taken as is necessary for the public use. Just compensation must equal or exceed the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.

03/15/12 House: Bill text as passed House and Senate (HJ3ER)
03/15/12 House: Signed by Speaker
03/17/12 Senate: Signed by President
04/09/12 House: Assigned Chapter 736 (effective – see bill)
04/10/12 Governor: Acts of Assembly Chapter text (CHAP0736)

17. SB 160 High Performance Buildings Act; created.

Chief patron: Petersen

Summary as passed:

High Performance Buildings Act. Requires executive branch agencies and institutions entering the design phase for construction of a new building greater than 5,000 gross square feet in size, or renovating such a building where the cost of renovation exceeds 50 percent of the value of the building, to conform to Virginia Energy Conservation and Environmental Standards developed by the Department of General Services considering the U.S. Green Building Council (LEED) green building rating standard, the Green Building Initiative “Green Globes” building standard, and other appropriate requirements. Exemptions from the requirement may be granted by the Director of the Department of General Services upon a finding of special circumstances that make construction or renovation to the standards impracticable.

03/01/12 House: Signed by Speaker
03/03/12 Senate: Signed by President
03/04/12 Senate: Impact statement from DPB (SB160ER)
04/09/12 Governor: Approved by Governor-Chapter 680 (effective 7/1/12)
04/09/12 Governor: Acts of Assembly Chapter text (CHAP0680)

18. SB 236 Virginia Public Procurement Act; multiple project contracts for services relating to construction.

Chief patron: Colgan

Summary as passed Senate:

Virginia Public Procurement Act; multiple project contracts for architectural or professional engineering services relating to construction. Raises, for certain local public bodies, the maximum cost of all projects in one contract term of a multiple project contract from $500,000 to $1.5 million, and raises the maximum cost for any single project from $100,000 to $500,000 for airports and aviation transportation projects. For a locality or authority or sanitation district with a population in excess of 80,000, the bill raises the maximum cost from $1 million to $2 million.

02/16/12 House: Referred to Committee on General Laws
02/20/12 House: Assigned GL sub: #2 FOIA/Procurement
02/20/12 Senate: Impact statement from DPB (SB236S1)
02/28/12 House: Subcommittee recommends no action
03/10/12 House: Left in General Laws

19. SB 240 Constitutional amendment; taking or damaging of private property for public use (voter referendum).

Chief patron: Obenshain

Summary as passed Senate:

03/09/12 Senate: Signed by President
03/12/12 Senate: Impact statement from DPB (SB240ER)
03/14/12 Senate: Bill text as passed Senate and House reprinted (SB240ER)
04/04/12 Governor: Approved by Governor-Chapter 564 (effective 1/1/13 – see bill)
04/04/12 Governor: Acts of Assembly Chapter text (CHAP0564)

20. SB 377 Construction projects using public funds; iron, steel, manufactured goods must be produced in USA.

Chief patron: McEachin

Summary as introduced:

Construction projects using public funds; iron, steel, and manufactured goods must be produced in the United States. Prohibits use of state funds for construction projects, including any construction, alteration, maintenance, or repair of a public building or public works project, unless all of the iron, steel, and manufactured goods, including equipment, used in the project are produced in the United States. Under the bill an exception to the requirement is provided if the administrative head of the contracting state agency determines in writing that (i) iron, steel, and relevant manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality or (ii) inclusion of iron, steel, and manufactured goods produced in the United Sates will increase the costs of the overall project by more than 25 percent.

01/24/12 Senate: Assigned GL&T sub: #2
01/26/12 Senate: Impact statement from DPB (SB377)
02/13/12 Senate: Reported from General Laws and Technology with amendments (13-Y 2-N)
02/13/12 Senate: Rereferred to Finance
02/14/12 Senate: Continued to 2013 in Finance (15-Y 0-N)

21. SB 413 Renewable energy portfolio standard program; credits for investments.

Chief Patron: Norment, Jr.

Summary as passed:

Renewable energy portfolio standard program; credits for investments. Allows any investor-owned electric utility that participates in the renewable energy portfolio standard program to meet up to 20 percent of an RPS Goal through certificates evidencing the utility’s expenses in conducting research and development activities in Virginia related to renewable or alternative energy sources. To qualify, such expenses shall either (i) be designed to enhance the participating utility’s understanding of emerging energy technologies and their potential impact on and value to the utility’s system and customers within the Commonwealth; (ii) promote economic development within the Commonwealth; (iii) supplement customer-driven alternative energy or energy efficiency initiatives; (iv) supplement alternative energy and energy efficiency initiatives at state or local governmental facilities in the Commonwealth; or (v) be designed to mitigate the environmental impacts of renewable energy projects. The State Corporation Commission shall issue certificates to utilities making qualified investments based on the prices for renewable energy certificates in the interconnection region of the regional transmission entity of which the utility is a member. Qualified investments are stated to be reasonable and prudent operating expenses of a participating utility. A participating utility is not authorized to recover the costs associated with qualified investments through rate adjustment clauses and is not authorized to earn a return on its qualified investments. A participating utility is not eligible for a research and development tax credit qualified investments made under this measure. The measure also provides that a utility shall receive double credit toward meeting the program’s goals for energy from facilities in the Commonwealth fueled primarily by animal waste.

01/11/12 Senate: Prefiled and ordered printed; offered 01/11/12 12101998D02/02/12 Senate: Printed as engrossed 12101998D-E03/08/12 Senate: Bill text as passed Senate and House (SB413ER)04/09/12 Governor: Acts of Assembly Chapter text (CHAP0717)

22. SB 437 Eminent domain; definitions of lost access and lost profits, determining compensation.

Chief patron: Obenshain

Summary as passed:

Eminent domain; lost profits and access. Provides definitions for the terms “lost profits” and “lost access” and how to determine the amount of just compensation, which includes lost profits and lost access resulting from the taking, that must be paid for property taken by eminent domain. The bill has a contingent effective date of January 1, 2013, provided that the voters approve an amendment to Section 11 of Article I of the Constitution of Virginia at the November 2012 election. This bill is identical to HB 1035.

03/09/12 House: Signed by Speaker
03/10/12 Senate: Signed by President
03/13/12 Senate: Impact statement from DPB (SB437ER)
04/09/12 Governor: Approved by Governor-Chapter 719 (effective – see bill)
04/09/12 Governor: Acts of Assembly Chapter text (CHAP0719)

1. SB 525 Virginia Public Procurement Act; preference for local products and firms.

Chief patron: Marsh

Summary as introduced:
Virginia Public Procurement Act; preference for local products and firms; applicability. Authorizes localities to apply a preference for bidders or offerors in the locality of up to 10 percent, provided (i) for competitive sealed bidding the percentage of the discount is stated in the Invitation to Bid, (ii) for competitive negotiations the percentage of the increase is stated in the Request for Proposal, and (iii) the discount percentage or increase percentage is included in the informal solicitation for small purchase.

01/11/12 Senate: Prefiled and ordered printed; offered 01/11/12 12102183D
01/11/12 Senate: Referred to Committee on General Laws and Technology
01/20/12 Senate: Impact statement from DPB (SB525)
01/24/12 Senate: Assigned GL&T sub: #2
01/30/12 Senate: Passed by indefinitely in General Laws and Technology (14-Y 0-N)

2. SB 526 Virginia Public Procurement Act; permissive contract provisions for localities.

Chief patron: Marsh

01/11/12 Senate: Prefiled and ordered printed; offered 01/11/12 12102180D
01/11/12 Senate: Referred to Committee on General Laws and Technology
01/24/12 Senate: Impact statement from DPB (SB526)
01/24/12 Senate: Assigned GL&T sub: #2
01/30/12 Senate: Passed by indefinitely in General Laws and Technology (14-Y 0-N)

3. SB 572 Virginia Public Procurement Act; preference for local businesses.

Chief patron: Vogel

01/18/12 Senate: Presented and ordered printed 12103393D
01/18/12 Senate: Referred to Committee on General Laws and Technology
01/24/12 Senate: Impact statement from DPB (SB572)
01/24/12 Senate: Assigned GL&T sub: #2
01/30/12 Senate: Passed by indefinitely in General Laws and Technology (14-Y 0-N)

4. SB 601 Public procurement; requirement that American iron, steel, etc., be used in public works projects.

Chief patron: Saslaw

Summary as introduced:
Public procurement; products manufactured in the United States. Requires public contracts for the construction, reconstruction, alteration, repair, improvement, or maintenance of a public building or public works to contain a provision that the iron, steel, and manufactured goods used or supplied in the performance of the public contract or any subcontract are manufactured in the United States. This requirement does not apply if the requirement is inconsistent with the public interest, the products are not manufactured within the United States in sufficient and reasonably available quantities or with satisfactory quality, or using the products will increase the cost of the public contract by 25 percent or more. A person intentionally mislabeling or misrepresenting the origin of products will be ineligible to receive any other public contracts.

01/19/12 Senate: Presented and ordered printed 12101200D
01/19/12 Senate: Referred to Committee on General Laws and Technology
01/24/12 Senate: Assigned GL&T sub: #2
01/30/12 Senate: Impact statement from DPB (SB601)
02/13/12 Senate: Continued to 2013 in General Laws and Technology (14-Y 1-N)

5. SB 620 Federal Government Contractor Grant Fund and Program; created & established for certain businesses.

Chief patron: Petersen

Summary as passed Senate:

Federal government contractor grant program. Establishes a federal government contractor grant fund and program beginning January 1, 2013, for federal contractors with at least 250 full-time employees that subcontract with small or minority-owned, veteran-owned, or women-owned businesses to perform federal government contract work. The grant would equal five percent of the amount paid by the federal contractor under the subcontract to the small or minority-owned, veteran-owned, or women-owned business. The small or minority-owned, veteran-owned, or women-owned business would be required to perform all subcontract work in a Historically Underutilized Business Zone or a state enterprise zone. The federal government contractor grant program is contingent upon an appropriation of general funds effectuating the provisions of the bill.

The aggregate amount of grants would be capped at $10 million each fiscal year.

02/17/12 House: Referred to Committee on General Laws
02/20/12 House: Assigned GL sub: #2 FOIA/Procurement
02/22/12 Senate: Impact statement from TAX (SB620S1)
02/28/12 House: Subcommittee recommends laying on the table
03/10/12 House: Left in General Laws

6. SB 621 State-owned buildings; DGS to establish program requiring energy efficiency data.

Chief patron: Petersen

Summary as introduced:
Department of General Services; energy efficiency data for state-owned buildings. Provides for the Department of General Services to establish a program requiring an energy analysis of each state-owned building containing more than 50,000 square feet of usable space to identify opportunities for reduced energy use. By December 31, 2012, such buildings are required to obtain an energy efficiency score utilizing the Energy Star assessment and ratings program. The Energy Star score will be published on the Department’s website and updated annually.

01/20/12 Senate: Referred to Committee on General Laws and Technology
01/25/12 Senate: Impact statement from DPB (SB621)
02/13/12 Senate: Reported from General Laws and Technology with amendment (15-Y 0-N)
02/13/12 Senate: Rereferred to Finance
02/14/12 Senate: Continued to 2013 in Finance (15-Y 0-N)

7. SB 651 Women-owned and minority-owned businesses; enhancement measures.

Chief patron: McEachin

Summary as introduced:
Virginia Public Procurement Act; women-owned and minority-owned businesses; remedial measures. Provides that the Governor shall require state agencies to implement appropriate enhancement or remedial measures consistent with prevailing law when a persuasive analysis exists that documents statistically significant disparity between the availability and utilization of women-owned and minority-owned businesses.

02/13/12 House: Read first time
02/13/12 House: Referred to Committee on General Laws
02/20/12 House: Assigned GL sub: #2 FOIA/Procurement
02/28/12 House: Subcommittee recommends continuing to 2013
02/28/12 House: Continued to 2013 in General Laws

8. SB 679 State mandates; eliminating on local and regional government entities relating to education, etc.

Chief patron: Newman

Summary as passed:

Elimination of certain state mandates on local entities. Eliminates several statewide mandates on local government and regional government entities.The bill does the following: (i) removes the requirement that surplus property be offered to political subdivisions or volunteer fire and rescue squads before being sold at a public sale or auction, (ii) raises the ceiling for professional service contracts that a locality may enter without competitive negotiation to $60,000 from $50,000, (iii) eliminates the requirement that a lease of property owned by any political subdivision, or privately owned, licensed public use airport be approved by the Department, (iv) removes the requirement for localities to obtain VDOT approval for red light camera locations, (v) clarifies that the local courts cannot require localities to construct a new or additional courthouse, (vi) eliminates requirements for reporting Urban Development Areas to the Commission on Local Government, (vii) removes the requirement for establishing local advisory committees on gifted education and the annual reporting by such committees, (viii) eliminates the requirement to provide the estimated per pupil cost for public education of individual school to each parent or guardian of the enrolled child, (ix) removes the requirement that proceeds from the sale of local education surplus property be applied to capital improvements, (x) eliminates the requirement to establish a school health board, (xi) removes annual contract requirements for community service boards, (xii) eliminates Internet policy mandates on local libraries, (xiii) changes requirement to give first priority for vending contracts to the blind from mandatory to a local option, and (xiv) repeals the requirement for civics training for teachers in order to renew license. The bill also makes technical changes. The bill is identical to HB 1295.

04/18/12 Senate: Reenrolled bill text (SB679ER2)
04/18/12 Senate: Signed by President as reenrolled
04/18/12 House: Signed by Speaker as reenrolled
04/18/12 Governor: Approved by Governor-Chapter 836 (effective 7/1/12)
04/18/12 Governor: Acts of Assembly Chapter text (CHAP0836)

9. SJ 3 Constitutional amendment; taking or damaging of private property for public use (second reference).

Chief patron: Obenshain

Summary as passed Senate:

Constitutional amendment (second resolution); taking or damaging of private property; public use. Revises the prohibition on the enactment by the General Assembly of laws whereby private property may be taken or damaged. An existing provision authorizing the General Assembly to define what constitutes a public use is removed. The proposed amendment provides that private property can be taken or damaged only for a public use, only with just compensation to the owner, and only so much taken as is necessary for the public use. Just compensation must equal or exceed the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is. The Resolution incorporates SJ 67 and SJ 117.

03/15/12 Senate: Bill text as passed Senate and House (SJ3ER)
03/15/12 House: Signed by Speaker
03/17/12 Senate: Signed by President
04/09/12 House: Assigned Chapter 738 (effective – see bill)
04/10/12 Governor: Acts of Assembly Chapter text (CHAP0738)

10. SJ 67 Constitutional amendment; taking or damaging of private property for public use (second reference).

Chief patron: McDougle

Summary as introduced:

01/10/12 Senate: Prefiled and ordered printed; offered 01/11/12 12102332D
01/10/12 Senate: Referred to Committee on Privileges and Elections
01/31/12 Senate: Incorporated by Privileges and Elections (SJ3-Obenshain) (15-Y 0-N)

11. SJ 117 Constitutional amendment; taking or damaging of private property for public use (second reference).

Chief patron: Deeds

Summary as introduced:

01/19/12 Senate: Presented and ordered printed 12104151D
01/19/12 Senate: Referred to Committee on Privileges and Elections
01/31/12 Senate: Incorporated by Privileges and Elections (SJ3-Obenshain) (15-Y 0-N)

Legislative Update: Jan. 30, 2012

Posted on January 30, 2012 by cguske

All but one of the bills seeking to protect Virginians’ jobs from outside sources were voted down in committee Thursday night, Jan. 25. But the bills concerning eminent domain still remain.The VSAIA and representatives of several other business organizations have scheduled a tentative meeting with Lt. Gov. Bill Bolling for Monday morning. Our complaint with the constitutional amendment and those bills seeking to modify the amendment is the uncertainty that they engender.Virginia’s eminent domain law worked well for many years. And in reaction to the 2005 decision by the U.S. Supreme Court in Kelo v. City of New London, Virginia legislators in 2007 revised existing law. This law appeared to respond to the inequities revealed in Kelo. But in the 2011 session, legislators believed a constitutional amendment was necessary.

The amendment, which must pass two consecutive sessions of the General Assembly and be approved by the voters, and the 2012 pending legislation make it impossible to advise architects’ clients on the probable cost and time requirement for their potential projects. Or even to suggest that one site might be better than two or three others being considered. The members of the Joint Legislative Committee (JLC) – representing of the VSAIA, the Virginia Association of Professional Engineers, and the American Council of Engineering Companies/Virginia – believe these legislative measures go too far. Some of this year’s legislation inserts provisions that would compensate land owners for “lost access and lost profits.” These and other provisions make the construction projects less certain and more expensive, the JLC members believe.

The protectionism bills did not attempt to adjust the existing language that allows Virginia state agencies and localities to mimic the procedures adopted by neighboring states. For example, protectionist language that exists in North Carolina law will be used against North Carolina vendors who wish to conduct business in Virginia.

The JLC also opposes a bill to require localities to use the e-Virginia (eVA) site to advertise their upcoming projects. Currently, localities must advertise in a “newspaper of general circulation in the area in which the contract is to be performed.” Architects on the JLC complained about eVA’s performance and the quality of projects generated.

Within the myriad bills and interests represented in those bills lie a few measures that the VSAIA will support. The VSAIA will support the high-performance buildings bills introduced by Del. Chris Jones and Sen. Chapman Petersen (HB 1167 and SB 160) and three bills that support procedures already being conducted by the Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects (HB 390, HB 937, and HB 938).

Architects representing the VSAIA on the JLC committee are David Puckett, AIA, and William Evans, AIA. The committee meets weekly during the session to work with our legislative counsel Reggie Jones and Patrick Cushing, both of Williams Mullen.

Practice
Oppose: Bills would amend constitutional amendment concerning eminent domain

HB 5, HB 597, HB 1145, HJ 3, SB 240, SJ 3, SJ 67, and SJ 117

Committees reviewing these bills killed most of them January 25
HB 449, HB 529, HB 530, SB 377, SB 525, SB 526, SB 572, SB 589, SB 601

Amend: Bill would provide tax incentives for large firms hiring SWAM businesses. JLC would delete a provision to narrow the “small” definition to those only in underutilized business zones.

HB 228

Oppose: Quality of e-Virginia’s product for architects does not match that found in print media.

HB 1193

Regulation

Support: Would require General Assembly to receive study from DPOR prior to considering regulating any profession. Would expedite licenses for qualified spouses of military personnel (APELSCIDLA does this for all applicants already). Would accept qualified military experience in consideration of licensure by comity (APELSCIDLA does this for all applicants already).

HB 390, HB 937, and HB 938

Energy

Support: Would establish specific energy criteria continually updated by Department of General Services and based upon LEED, Green Globes, and other standards.

HB 1167 and SB 160

Support: Would require the Virginia Department of General Services to audit all state-owned buildings 50,000 s.f. or larger to determine their energy footprint and to update that analysis annually.

SB 621

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April 5

April 5 @ 2:00 pm - April 6 @ 3:00 pm

Virginia Design Forum XVI: [Un]Certainty: Reflections on Craft at the Cyberfrontier!

April 5

April 5 @ 2:00 pm - April 6 @ 3:00 pm

Virginia Design Forum XVI: [Un]Certainty: Reflections on Craft at the Cyberfrontier!

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April 22

April 22 @ 12:00 pm - 1:00 pm

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Virginia Design Forum XVI: [Un]Certainty: Reflections on Craft at the Cyberfrontier!

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Virginia Design Forum XVI: [Un]Certainty: Reflections on Craft at the Cyberfrontier!

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