2020 BIG Advocacy Victories!

It’s time for some good news and our work in advocacy provides just that!

I’m pleased to present that the Governor signed our two major bills that passed the General Assembly.

The first is Senate Bill 658 (SB 658), which makes the “duty to defend” language in indemnification clauses against public policy.  This requirement is often not insurable. The legislation was carried by Sen. Scott Surovell (D – Mount Vernon).

The second is House Bill 1300 (HB 1300) and its companion Senate Bill 607 (SB 607)both provide for a 15-year statute of limitation for design and construction projects performed for the Commonwealth of Virginia, including public institutes of higher education. HB 1300 was carried by Del. Chris Hurst (D – Blacksburg) and Senate Minority Leader Tommy Norment (R – Williamsburg) served as the patron of SB  607. Prior to now, a design professional was liable for his/her work for eternity on these projects.

Through the increasing membership support of our Political Action Committee (PAC), we have been   able to build increasingly more legislative relationships. Please make a 2020 investment in our PAC today to help elevate our voice on the built environment. We need you.

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2020 Political Outlook in Virginia

Overview

Politically, it is a new day in Virginia.  What once seemed to be a doomed Democratic party is now in control of both the legislative and executive branches of government.  Not so long ago, the three elected statewide offices were getting pummeled with negative national press regarding “black-face” scandals with the Governor and Attorney General and sexual assault allegations against the Lieutenant Governor. There was a moment where prominent Democrats in Virginia and in Congress were urging for the resignation of Governor Ralph Northam.  It appears he has weathered the “storm” and in fact can make the case to be one of the most consequential Governors that Virginia has seen.

Now, Democrats control the Senate by a count of 21 to 19 and the House 55 to 45.  This is the first time Democrats controlled the state government in nearly 30 years. Speaking of firsts, the 2020 General Assembly will welcome the first female Speaker of the House in the 401-year history of the legislative body. In addition, this is also the most diverse legislature ever with a record number of women and minorities to hold a seat.  It should be noted that this diversity includes the first female Muslim legislator, Sen. Ghazala Hashmi and the first African-American/first woman Majority Leader, Del. Charniele Herring.

Type of Legislation to Expect

Democrats have many “pent-up” demands that will be presented in the General Assembly this year now that they are in control.  Many predict that passing the Equal Rights Amendment will be the first order of business.  Next, expect to see minimum wage raised, the ushering in of gun safety measures, and legislation that prohibits discrimination against underrepresented groups.  For architects, we will see action on affordable housing, transportation, broad-band expansion, and mitigating a changing climate.  We will have many opportunities to engage and shape the policy that impacts our communities.

AIA Virginia’s Legislative Priorities

AIA Virginia works in partnership with the American Council of Engineering Companies of Virginia during each General Assembly for our advocacy efforts.   This year, we have two major goals:  to eliminate the “duty to defend” language in pubic project indemnification contract clauses and to work with the Associated General Contractors of Virginia to get a statute of limitations in the law for the work we perform on state projects.  Our professional liability insurance will not defend other parties, thus posing substantial risk to our members who do public work.  In addition, the locality’s attorneys typically will not strike this clause as architects and engineers are viewed as a commodity (if firm A doesn’t sign this, we will just go to firm B).  Getting a statute of limitations on the books will put a finite cap on how long you are liable for your design work on all state projects, including public universities.

In addition to these priorities, we are advocating and monitoring bills in the arenas of school safety, resilience, sustainability, and housing access affordability.

Duty to Defend – AIA/ACEC filed bill

SB 658Surovell – Contracts with design professionals; provisions requiring a duty to defend void.

Statute of Limitations – AGC filed bill with language from AIA/ACEC

HB 1300Hurst – Virginia Public Procurement Act; statute of limitations on actions on construction contracts.

Please be on the lookout for weekly General Assembly updates on the bills we are actively engaging and monitoring beginning the week of January 17.

Also, please support our advocacy efforts by investing in our PAC.  We can’t do the great work we are doing without your support.

Important Dates of the General Assembly

  • January 8 – General Assembly session convenes
  • January 17 – Final date members can submit any legislation for introduction
  • February 11 – Bill crossover
  • March 7 – Sine die
  • April 15 – Reconvene session

General Assembly Update

The 2019 General Assembly convened on January 9.  In odd-numbered years, the legislators meet in a “short session”.  As such, the 2019 session will adjourn on February 23.  “Crossover” happens when each chamber (House + Senate) finish their review, debate and approval of bills, and sends it to the other chamber for a similar process.  This date occurred on February 6.  Nearly 2,000 bills were submitted this year of which 1,202 were introduced by the House and 793 by the Senate.  In addition, over 300 resolutions were put forth for consideration.

AIA Virginia has nearly 60 bills on its radar.  Some, we actively engage and others we monitor due to another organization being better positioned to take the lead.  Unfortunately, many energy/Greenhouse gas reduction bills did not gain traction.

The following provides a breakdown of bill types and quantities that AIA Virginia engaged and/or tracked:

Procurement: 16

Site/Utility/Stormwater: 9

School Safety/Improvements: 7

Business and Taxation: 6

Energy and Climate Impact: 5

Licensing/Regulatory: 3

Resiliency: 3

Human Resource Benefits: 2

Statute of Repose/Statute of Limitations: 2

Building Code: 1

Historic Tax Credit: 1

STEAM: 1

Below is a list of key legislative victories that AIA Virginia has heavily influenced this session:

HB 1738 – Delegate Rush

School buildings; plans to be reviewed by a professional trained and experienced in crime prevention

Passed House; Passed Senate Committee on Education and Health

AIA Virginia worked with Delegate Rush to add language to this bill that ensures every public school building, addition or alteration will have its designed reviewed by an individual or entity with professional expertise in building security and crime prevention through building design techniques. 

HB 1796 – Delegate Cole

Virginia Public Procurement Act; competitive negotiation; price for professional services

Defeated in House General Laws Subcommittee

AIA Virginia worked actively to defeat this bill that would have allowed public bodies to request price information in a RFP for professional services

HB 2072 – Delegate Bell

Virginia Public Procurement Act; competitive negotiation for professional services

Defeated in House General Laws Subcommittee

AIA Virginia worked actively to defeat this bill that would have allowed public bodies to conduct negotiations simultaneously with the top two ranked offerors.

HB 2168 – Delegate Yancey

School Innovation, Modernization, and Competiveness, Commission on; established.

Passed House; Referred to Senate Committee on Rules

AIA Virginia has a commitment from Delegate Yancey to support our recommendation for an architect to be appointed to this newly formed commission as a non-legislative member. 

HB 2198 – Delegate Gilbert

Virginia Public Procurement Act; exempts counties cities, etc. with population greater than 3,500

Passed House; Referred to Senate Committee on General Laws and Technology

This is AIA Virginia’s bill to close the QBS “loophole” that currently exists in the law.  Due to an administrative drafting error to a 2013 bill that attempted to clarify components of the Virginia Public Procurement Act, the requirement for QBS has been eliminated.  We realized this when Arlington County began to exploit this “loophole” in its solicitation of professional services.  This bill corrects this drafting error.

HB 2804 – Delegate LaRock

Virginia Public Procurement Act; professional and information technology project services contracts

Defeated in House General Laws AIA Virginia actively engaged with the Subcommittee Chairman to defeat this bill that would have required design professionals working for state agencies to install software that allows for verification of the number of hours worked on a project using a computer.

2019 Political Outlook in Virginia

Earlier this month, I attended a luncheon presented by the Virginia Society of Association Executives in Richmond. The keynote was presented by Dr. Robert Holsworth who currently serves as Managing Principal of DecideSmart. The presentation was captivating and intriguing, presenting the 2019 political landscape of Virginia within the General Assembly.

Below are some of the highlights that I heard:

  • Virginia has historically been a “purple state” meaning that both, Republicans and Democrats, had a reasonable chance to carry the state
  • Virginia has now become “purple” with a heavy “blue tint”
  • Republicans continue to win in rural Virginia as they have been in rural America. In the same way, Democrats are winning in urban Virginia as they have been in urban America.
  • The tilt in Virginia is within the suburbs. These areas in Virginia are leaning hard “blue” as the demographics in these areas is becoming increasingly diverse
  • Republicans are likely concerned in Virginia as they have lost both U.S. Senate seats, a majority of the U.S. House seats, the positions of Governor, Lt. Governor, and Attorney General in Virginia, and control of the Virginia House and Senate has slipped
  • The 2019 elections will be significant in terms of control. Currently, the Virginia House consists of 51 – R; 49 – D and the Virginia Senate is at 21 – R; 19 – D
  • It is predicted that there will be four main areas of focus within the General Assembly: Taxes, Gambling/Betting, Interstate-81, and Redistricting
  • Taxes will be debated and discussed within the purview of the Federal Tax Cuts and Jobs Act of 2017
    • This bill lowered income taxes on individuals but raised deductions
    • These cuts are in place for 5 years
    • Sources say that it is estimated that 94% of Americans will not itemize their federal taxes this year because of the increased deductions
    • This means Virginia can do nothing or have its deductions match the federal deductions
    • If you do nothing, Virginia gets a large boost to its bottom line where the Democratic-led Administration has a set of plans that includes giving money back to those with lower income. The Republican Party pitches that the money should go back to the taxpayers.  There is a strong difference in opinion between the two parties in how the money should be used.
  • Historically, gambling and betting in Virginia has not been viewed favorably
    • Success has been seen with the MGM Casino at the National Harbor
    • A prospective entity is interested in constructing a gambling/betting venue in Bristol
    • Danville, Portsmouth, and Norfolk have also expressed interest in bringing a gambling/betting venue to its area
    • At the end of the day, the amount of economic fruit produced by these venues is hard to turn a blind eye to
  • Interstate 81
    • Many believe I-81 should be expanded to help accommodate the volume of trucks traffic. The question of how to pay for such an endeavor still looms
    • Some have proposed tolls as a source of revenue
    • There is concern for those Virginians who have less financial resources but need to access I-81 routinely. For those, one proposal is to develop a discount rate (let’s say $30/month) that comes with unlimited interstate use.
    • This may work well for those in Southwest Virginia where families typically earn less pay compared to Northern Virginia. But how do legislators who have Northern Virginian constituents respond to that approach when they may pay $30 per day in tolls to use the “Fast Lanes”
  • Redistricting
    • The question is will politicians ever give up their power to have this done independently?
  • The Democrats who won in the Virginia House recently predominantly ran on social equity and advocacy issues. What does silence around running on business and economic development platforms mean for the business climate in Virginia if Democrats take control of the Virginia House and Senate?

What this report says is that there is power in voting.  Regardless of who you vote for or what party you support, exercise your right to vote.  It makes a difference.

Corey Clayborne, AIA
Executive Vice President
AIA Virginia

Government Advocacy Year in Review and 2019 Look-Ahead

Summary of the 2018 General Assembly Session
The Joint Legislative Committee (JLC) vetted approximately 3,000 total bills to extract the relevant ones to our profession. The majority of the bills introduced that would have a significant impact on our profession were in procurement. We successfully defeated SB 188 which provides that for competitive negotiation of professional services, a public body may conduct negotiations simultaneously with the top two ranked offerors. In addition, HB 97 allows for single or term contracts for professional services without requiring competitive negotiation, provided the aggregate or the sum of all phases is not expected to exceed $80,000. This change increased the limit in current law by $20,000.

The following depicts the number of bills of interest to the JLC that were introduced, by topic, but did not succeed in 2018:

• Procurement & SWaM: 24
• Building Code/Energy/Resiliency: 5
• Regulatory Reduction: 4
• Design Methodologies: 3
• Tax Reform: 2
• Historic Buildings: 2
• Zoning: 1

House Select Committee on School Safety
In light of the increase of school shootings, the Virginia General Assembly formed a Select Committee on School Safety. This is the first select committee formed in the House in 155 years. The committee consisted of 22 members charged with completing its work by November 15 to include recommendations for the 2019 General Assembly.

The Select Committee was divided into three subcommittees: Student Behavior and Intervention; Prevention and Response, and Infrastructure and Security. Any recommendations regarding the design of schools would likely originate from the Infrastructure and Security subcommittee. The goal of AIA Virginia was to insert the voice of the architect and be a resource to that respective subcommittee as it undertook its work.

Our legislators had not considered inviting architects to the conversation.

As such, our objectives were as follows:
1) Find a legislator that would advocate for architects to join the conversation with the appropriate subcommittee
2) Upon receiving a seat at the table, make it clear that we want to help them achieve their goals
3) Clearly state the intent is to be a facilitator in this work and be a sounding board to this subcommittee’s ideas, thoughts, and recommendations
4) As a byproduct of this experience, hope that the interaction with our organization reinforces the importance of the role of the architect in every community

AIA Virginia was invited by the Infrastructure and Security subcommittee to give a presentation on the following key points: 1) Project Process 2) Historical Trends in School Design 3) Current Trends in School Design 4) New Construction vs. Renovation 5) What are Other States Doing?

The Committee, in its entirety, met in November and provided its priority recommendations. AIA Virginia is pleased to report that our recommendations were utilized!
A full list of the Select Committee’s priorities can be accessed here.

Disaster Assistance Relief
AIA Virginia has reinvigorated its Memorandum of Understanding with the Virginia Department of Emergency Management. Two Safety Assessment Program (SAP) trainings were held this year resulting in the national credentialing of 70 architects, engineers, and building officials. This credential administered by California’s Office of Emergency Services allow for industry professionals to perform building assessments after a natural disaster as second-responders. This program is the official AIA all-hazards post-disaster training. We, as design professionals, are now viewed by the Commonwealth of Virginia as instrumental resources in helping restore communities after these devastating events. AIA Virginia looks to host additional training opportunities in 2019.

Closing the Qualifications Based Selection (QBS) Loophole in the Virginia Public Procurement Act (VPPA)
Virginia has a relatively strong QBS process for procuring professional services and the central procuring agency in the state, the Department of General Services, continues to embrace its use. There are exceptions within the VPPA that allow a local government to exempt itself if it has adopted their own procurement procedures through an ordinance. In fact, approximately 50% of local governments have chosen this approach. Though this exemption is allowed, there are certain criteria that local governments may not exempt out of such as the requirements around ethics, conflicts of interest, and the use of QBS in the procurement of professional services.

This year, our industry was made aware of what we believe, through careful research, was a drafting error in a 2013 procurement bill that had the intent of “cleaning up” the extensive VPPA. The result of the drafting error is an erroneous cross-reference in the statute that no longer requires local governments to use QBS in its procurement of professional services. This was brought to the attention of AIA Virginia and the American Council of Engineering Companies of Virginia (ACEC) when a local government issued a Requests for Proposals (RFP) requiring firms to submit its price with its qualifications. When approached by our industry organizations, the legal counsel for the respective local government presented its logic successfully within the confines of the existing law as it stands today.

It was at this point, AIA Virginia and ACEC decided to act swiftly and immediately. We were confident that if other local governments were made aware of this language in the VPPA, there was a high-risk that we would see more RFP’s written in this way.

Our lobbying approach was two-fold:
Educational Outreach Efforts: In partnership with ACEC and Williams Mullen (our lobbyists), we undertook “in district” one-on-one outreach meetings with key members of the General Assembly who serve in a leadership position or on the key committees (House and Senate General Laws). Due to the significant turnover, particularly within the House, the one-on-one meetings was our opportunity to educate legislators (many for the first time) on the importance of QBS. In addition, we shared with these individuals that we were planning to introduce legislation in the 2019 General Assembly to correct the drafting error in the VPPA. We held approximately two dozen of these meetings around the Commonwealth and attended various fundraisers. Thank you to the members who joined me on these visits.

Proposing New Legislation: House Majority Leader, Delegate Todd Gilbert, has agreed to be the Chief Patron of our bill which corrects the drafting error. Gaining his support in this request is instrumental since he carried the original procurement bill where the drafting error was made. Our proposed bill sounds straightforward and it is. However, it does not mean that opposition will not occur. We have worked extensively out of session with legislators and other pertinent stakeholders in an attempt to limit opposition. Having this bill pass will ensure that there is a uniform way to procure professional services around the Commonwealth based on qualifications.

Corey Clayborne, Executive Vice President of AIA Virginia, cclayborne@aiava.org

Advocacy Meeting with State Senators

The practice of Architecture is a regulated profession that depends on the actions of the General Assembly and the Administration. Our elected officials discuss and debate legislation that affects our profession every day. Architects must engage in the legislative and regulatory process to protect our profession and keep it strong for the future. Building relationships with legislators give our profession a voice in the political process.

On July 27 Eliza Engle, AIA and Sean Reilly, AIA, members of AIA Virginia’s Government Advocacy Advisory Council had a very productive meeting with three Virginia State Senators and representatives from other industries at Williams Mullen, AIA Virginia’s lobbying firm. Senators Jill Vogel, Glen Sturtevant and Dick Black all serve on the Senate General Laws Committee, which debates and decides on legislation that impacts our profession. Each representative was given the opportunity to introduce themselves and speak about legislative concerns they wanted to share with the Senators.

Engle and Reilly emphasized the importance of Qualifications-Based Selection (QBS) and the existing loophole that allows local governments and other public bodies to choose a competitive procurement process based on fee instead of qualifications. The Senators were very interested in learning more about the QBS loophole, which seemed to garner the most discussion of any topic at the meeting.

Senator Dick Black noted that the Dillon rule was originally created so that the most qualified vendor would be selected based on their experience, not based on the lowest fee. Reginald Jones, partner at Williams Mullen, spoke about the need to have a uniform set of professional services procurement rules throughout the state, rather than a mixture of locally adopted procurement procedures that has been evolving. Senators Vogel, Black and Sturtevant all agreed that the Qualifications Based Selection law is important and should be consistently upheld throughout the state.

Gaining the Senator’s support of closing the QBS loophole is a key step in what we anticipate will be a multi-year effort. The QBS loophole is just one of many issues we are working on that are important to our profession. We have a lot of newly elected officials on key committees to educate and seek support from on issues that impact our profession. In order to have a voice in the political process and build relationships with key influencers, it is important to financially support lawmakers who best support our position on the issues, regardless of party affiliation. The AIA Virginia PAC disburses funds to legislators who support issues that affect all Architects in the Commonwealth of Virginia. We strongly urge you to raise the volume of our advocacy voice by giving to the PAC today.

School Safety

AIA Virginia Grabs Seat at the Table with Legislators on School Safety Discussion

In light of recent school shootings, the Select Committee on School Safety was formed by House Speaker Kirk Cox [R-66th District] in May of this year. This is the first select committee formed in the House in 155 years. Speaker Cox shared that the scope of the Committee is to evaluate strengthening emergency preparedness, hardening school security infrastructure, implementing security best practices, deploying additional security personnel, providing additional behavioral health resources for students, and developing prevention protocols at primary and secondary institutions across the Commonwealth. The committee must complete its work by November 15 and produce a final report containing recommendations for the 2019 General Assembly no later than December 15, 2018. In order to accomplish its work, the Committee has been divided into three Subcommittees that will study the following focus area: Prevention, Mental Health, and Infrastructure and Security.

As architects, each and every one of you are a valuable resource to this conversation. Communities are shaped by the design decisions we make. We are privileged to be tasked by the Commonwealth with the responsibility to safeguard the health, safety, and welfare of the public as we design the structures in which our community members live, work and play.

Bill Brown, AIA

With the support of Delegate David Toscano [D-57th District], Delegate Christopher Peace [R- 97th District], and Delegate Nick Rush [R – 7th District], AIA Virginia has been requested to present to the Infrastructure and Security Subcommittee on Friday, August 17 in Richmond. The Subcommittee is interested in hearing from architects the following:

• What happens in each design phase?
• How do architects design for all hazards (i.e. fire, natural disaster, active shooter, etc.)?
• What is the history and evolution of school design over time?
• What are the current trends in school design?
• What do architects consider when taking on a new construction project vs. renovation?
• What are legislators in other states doing on this issue?

Rob Winstead, AIA

Two of our members who are experts in school design have stepped up to give the presentation. One will be AIA Virginia Immediate Past President, Bill Brown, AIA and the other is sitting AIA Central Virginia President, Rob Winstead, AIA. In practice, Bill is a Vice President at Moseley Architects in Fairfax and Rob is a Principal at VMDO Architects in Charlottesville.

I’m asking that you please make a contribution to www.aiavapac.org.  No amount is too small or too large.  Help us have a seat at the table as the voice of the ARCHITECT.

Corey Clayborne, Executive Vice President of AIA Virginia, cclayborne@aiava.org

 

Lobbying for Architecture

This was one of the most politically intense General Assembly sessions Virginia has seen in a long time. There were 19 new members elected to the House, which many believe was a backlash to the results of the Presidential election. A number of Democrats were victorious in their races without the financial backing of their caucus. There was an incredibly large volume of bills introduced. That number climbed north of 3,700 when typically, it rarely exceeds 3,000. Most bills placed a strong emphasis on how will it impact my caucus/race to re-election.

The profession of architecture has its hands full. This is especially the case for practitioners that do public work. A number of localities have adopted their own competitive negotiations processes for hiring professional services. The existing Code of Virginia allows this to occur to provide flexibility to the various sizes and complexities of local governments. As one may imagine, these local procurement processes ARE INDEED, requiring price during the proposal phase and there is not an effective way to monitor or track which localities are doing this. Localities are not required to submit their customized procurement process plans to the state, and as such, there is a high level of unawareness that this is even occurring. And if a legislator knows it’s occurring, the next question is, do they care?

More and more of you are sending me RFP’s that are requiring price in the proposal. It seems to be happening more so with the RFP’s issued by local School Boards.

AIA Virginia is working on a plan with our lobbying counsel, Williams Mullen, and our allied professional society the American Council of Engineering Companies Virginia to close this loophole. This will be more than a one-year effort. You are critical to the success of this plan.

Here are the initial components of our plan:

Get the Facts: Determine and confirm how many localities in Virginia are procuring professional services through their own customized procurement processes and requiring price as part of the proposal. As you can imagine, this is a gigantic task in itself.

Education: We are preparing for an intense amount of educational meetings with legislators out of session that will be led by Williams Mullen. I’m going to be calling some of you to attend these meetings.

Legislative Sponsor: Determine if there is a Legislative Committee Chairman that would be willing to support a change in the Code of Virginia to close this loophole. This individual would be instrumental in leading the process and getting enough votes for any proposal to pass.

Please do keep me posted on RFP’s that have this language as it will help us tremendously in this first stage. This is going to be a long tug-o-war. The number of lobbyists that represent local governments and their respective associations towers over that of design professionals. However, our membership is north of 2,300 – there is Strength in Numbers. And when we decide to put our pens and mouse down for a second to unite, we have the potential to be quite powerful.

Corey Clayborne, Executive Vice President of AIA Virginia, cclayborne@aiava.org

Virginia’s 2015 Election Update

On Tuesday, Nov. 3rd, Virginians elected individuals to fill all 140 seats in the Virginia General Assembly. Historically, Virginia has had a limited change in the members of General Assembly as a result of Virginia’s off-year election cycle, but partisan redistricting in 2014, a shift in demographics in parts of the state, and the retirement of many long-serving incumbents (especially in the Senate), created more competitive races in 2015. In the end, Republicans maintained control of the House of Delegates and the Senate, perpetuating the partisan split between the Executive and Legislative branches of government.

Read a Complete Summary of the 2015 statewide elections prepared by Williams Mullen.