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.
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.
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.
