How AIA Virginia Addresses Procurement Violations through Violation Letters
AIA Virginia plays a critical role in advocating for fair and lawful procurement practices across the Commonwealth. Among its most effective tools for addressing questionable or illegal language in Requests for Proposals (RFPs) is the procurement violation letter – a discreet yet impactful mechanism for safeguarding the rights of architectural professionals.
The Problem: Procurement Violations in RFPs
AIA Virginia is routinely alerted by vigilant members (thank you!) to RFPs that appear to violate the Virginia Public Procurement Act (VPPA). These violations often involve:
- Fee-based selection criteria for professional services – as opposed to Qualifications-Based Selection (QBS)
- Indemnification or duty-to-defend clauses that place undue legal and financial burden on design professionals
Such language directly conflicts with Virginia law, which explicitly prohibits procurement of architectural and engineering services based on fee and renders indemnification/duty-to-defend requirements illegal and unenforceable.
Most violations stem from a misunderstanding of Qualifications-Based Selection (QBS). QBS mandates that professional services (like architecture) must not be procured based on fee. When fee becomes a factor, or when RFPs contain clauses requiring architects to indemnify or defend the client, AIA Virginia steps in.
Our Approach: Discreet, Effective Advocacy
When alerted to a problematic RFP, AIA Virginia prepares a procurement violation letter – sent without attribution to the reporting member. These letters are direct, legally grounded, and educational in tone. Their purpose is twofold:
- To inform the issuing body that certain clauses in their RFP likely violate Virginia law
- To encourage swift amendment or reissuance of the RFP in compliance with the VPPA
Results: Compliance
In many cases, a violation letter is enough to trigger a quick correction. This most often takes the form of a revised RFP or an addendum. However, compliance is not always immediate, especially when it involves duty-to-defend clauses, which are more contentious and less understood by some procurement officers.
From Advocacy to Law: Legislative Wins
Our advocacy doesn’t stop with letters. The power of AIA Virginia’s advocacy is evidenced by real change, including the successful passage of legislation strengthening the enforcement of QBS principles and eliminating indemnification requirements in professional service contracts.
Thanks to these efforts:
- Indemnification and duty-to-defend clauses are not only improper, but they are in fact illegal and unenforceable under Virginia law.
- Firms encountering such terms in RFPs or contracts can stand firm, knowing the law is on their side.
Guidance to Firms: What You Can Do
If you receive or review an RFP that contains questionable language:
- Alert AIA Virginia immediately. Your report will remain confidential.
- If selected for award, and a contract includes illegal indemnification language, strike those clauses during negotiation.
- Be confident: the law supports your position, and AIA Virginia stands behind you.
Final Word: Advocacy Works and It’s Ongoing
While violation letters may seem simple, they represent a powerful form of professional advocacy – one that protects firms, elevates the profession, and ensures public procurement adheres to the law. Thanks to AIA Virginia’s continued efforts, members can rest assured that their rights are being defended – one letter at a time.