Reed Smith Client Alerts

Beginning in July 2015, Virginia school boards and institutions of higher learning have been subject to new mandatory reporting requirements regarding the method of procurement used to obtain contracts for certain construction projects. Public entities are not exempt from reporting if they have adopted their own procurement policies. The new law provides:

That all public bodies as defined in § 2.2-4301 of the Code of Virginia, including public institutions of higher education, shall submit a written report to the Director of the Department of General Services (the Director) for any nontransportation-related construction project in excess of $2 million that was procured by any method other than competitive sealed bidding. Such report shall be in a form and manner prescribed by the Director…. The report, at a minimum, shall identify the justification for the procurement method chosen and contain such other information deemed necessary or appropriate by the Director, including whether or not the procurement meets the standards as set forth by the Secretary of Administration guidelines.

See 2015 Acts of Assembly, Chapter 760. The goal of the reporting is to survey why public entities are increasingly utilizing methods other than competitive sealed bidding for construction projects, and to continue to modify the Virginia Public Procurement Act (VPPA) to promote a fair statutory framework for all such public projects.

The Department of General Services (DGS) created a reporting form (“Overall Project Activity Submission”) that school divisions are required to submit to DGS within 10 calendar days of the end of each three-month period though June 30, 2017, even if they have nothing to report. DGS has compiled a list of two people at each public entity to receive reminders of the reporting requirement. The form and instructions are available here.

Recently, DGS indicated that there was not 100 percent reporting by any type of public entity for the quarter ending September 30, 2015, and that some of the reports were incomplete, internally inconsistent, or did not answer the questions in the manner sought. For example, in explaining why the entity used a different procurement method, several responded that they had adopted alternative procurement policies under the VPPA, rather than explain why they used a specific method. There was also some uncertainty about whether projects such as bus loops and parking lots were “nontransportation-related,” so as to trigger reporting requirements. (They are not exempt and must be reported.)

This requirement is unprecedented, the form is new, and you may need assistance in order to properly and accurately report your school division’s procurement activities beyond the instructions DGS provides. We are available to help you navigate through this new requirement and assist with your other construction-related needs.


Client Alert 2015-335