• ACEC/VA Win in the General Assembly on RFP Terms & Conditions

  • Each year the Joint Legislative Committee (JLC) reviews bills that affect the A/E industry. We were proactive this year, focusing on onerous terms and conditions in RFPs. The JLC, in conjunction with our legal counsel, Williams Mullen, worked with the Virginia Association of Governmental Purchasing (VAGP) to develop compromise language for House Bill 578/Senate Bill 169. These bills included language stating that public bodies shall not request or require architectural or engineering firms to list any exceptions to proposed contractual terms and conditions, unless such terms and conditions are required by law, regulation, ordinance, or standards developed pursuant to § 2.2-1132, until after the qualified offerors are ranked for negotiations.

    In recent years, more and more firms experienced difficulty with unreasonable terms and conditions in RFPs. Our discussions, held throughout summer and fall, hammered out an acceptable agreement with VAGP, the Virginia Association of Counties (VACo) and the Virginia Municipal League (VML). These organizations opposed our terms and condition bill last year and were paramount in having them killed. 

    We also formed a partnership with the VAGP to help educate procurement officials and county attorneys on an ongoing basis in the future. Our goal is to jointly develop materials that exemplify best practices in procuring and contracting with architects and engineers on an ongoing basis. In addition, VAGP will help ACEC/VA and AIA communicate with local governments when RFPs are found to violate the VPPA or contracts are presented that contain uninsurable provisions. 

    If you have RFPs with uninsurable or unreasonable provisions, please send them to Nancy Israel.

  • Other bills of interest (click on bill name for additional information):

    HB499 – Provides that a professional and occupational regulatory board cannot abridge the right of every person to engage in any lawful profession, trade, or occupation of his choice unless (i) it is clearly found that such abridgment is necessary for the protection or preservation of the health, safety, and welfare of the public and (ii) any such abridgment is no greater than necessary to protect or preserve the public health, safety, and welfare. This bill is making its way through the General Assembly. 

    HB971 – This bill changed the definition of a small business to reflect the Federal definition. It was hotly debated last year and a task force was developed to provide recommendations to the 2016 General Assembly. Originally thought to pass this year, it failed to pass the House floor. 

    HB1108 – This bill would prohibit the use of any experience modification factor as a condition of any bidder's or offeror's eligibility to participate in a solicitation for construction. The bill includes the above provision for any contract or offer to contract not covered by the VPPA. The bill also provides that it applies to any offer to contract as defined in the bill, Invitation to Bid, or Request for Proposal for construction services issued on or after July 1, 2016. The bill defines "experience modification factor." This bill has passed the House and is currently being reviewed by the Senate. 

    HB1373 – This bill would allow local public bodies to purchase the intellectual property or other work product of a proposer, provided that i) the local public body makes a determination in advance and set forth in writing that it will be advantageous to purchase the intellectual property of an unsuccessful proposer, (ii) prequalification is limited to five contractors, and (iii) the Request for Proposal includes a notice that the local public body may acquire the intellectual property rights of an unsuccessful proposer. Although the engineers were generally in favor of stipends AIA and ACEC/VA could not, on short notice, agreed upon language that would protect the A/E community. Our greatest concern was that localities would use this bill as a way to include language in the RFP to require A/E firms to agree to sign over their ideas/plans in an unreasonable/unacceptable way. This bill failed to get out of the General Laws committee. We made the commitment to work with the patron to develop language for the 2017 General Assembly.

    If you would like a full listing of all bills that were tracked during the 2016 General Assembly, please contact Nancy Israel at 804.477.6573.