[Code 1991, § 2-326(a)—(e)]
A.
Generally. All public contracts with nongovernmental contractors
for the purchase or lease of goods, or for the purchase of services,
insurance, or construction, shall be awarded after competitive sealed
bidding or competitive negotiation as provided in this section, unless
otherwise authorized by law.
B.
Procurement of professional services. Professional services shall
be procured by competitive negotiation.
C.
Competitive negotiation; procurement of insurance; procurement of
construction.
(1)
Upon a determination made in advance by the City Council and set
forth in writing that competitive sealed bidding is either not practicable
or not fiscally advantageous to the public, goods, services, or insurance
may be procured by competitive negotiation. The writing shall document
the basis for this determination. Upon a written determination made
in advance by the City Council that competitive negotiation is either
not practicable or not fiscally advantageous, insurance may be procured
through a licensed agent or broker selected in the manner provided
for the procurement of things other than professional services in
§ 2-262D. The basis for this determination shall be documented
in writing.
(2)
Construction may be procured only by competitive sealed bidding or
construction management except that competitive negotiation, design-build
basis or construction management basis may be used in the following
instances upon a determination made in advance by the City Council
and set forth in writing that competitive sealed bidding is either
not practicable or not fiscally advantageous to the public, which
writing shall document the basis for this determination:
D.
Sole source procurement. Upon a determination in writing that there
is only one source practicably available for that which is to be procured,
a contract may be negotiated and awarded to that source without competitive
sealed bidding or competitive negotiation, provided that all requirements
as set forth in this section are complied with. The writing shall
document the basis for this determination. The City Manager shall
issue a written notice stating that only one source was determined
to be practicably available, and identifying that which is being procured,
the contractor selected, and the date on which the contract was or
will be awarded. This notice shall be posted in a designated public
area or published in a newspaper of general circulation on the day
the City Council awards or announces its decision to award the contract,
whichever occurs first.
E.
Emergency procurement. In case of emergency, a contract may be awarded
without competitive sealed bidding or competitive negotiation, provided
that all requirements as set forth in this section are complied with;
however, such procurement shall be made with such competition as is
practicable under the circumstances. A written determination of the
basis for the emergency and for the selection of the particular contractor
shall be included in the contract file. The City Manager shall issue
a written notice stating that the contract is being awarded on an
emergency basis, and identifying that which is being procured, the
contractor selected, and the date on which the contract was or will
be awarded. This notice shall be posted in a designated public area
or published in a newspaper of general circulation on the day the
City Council awards or announces its decision to award the contract,
whichever occurs first, or as soon thereafter as is practicable. An
emergency shall be deemed to exist when a breakdown in machinery or
equipment, a threatened termination of essential services, or a dangerous
condition develops, or when any unforeseen circumstances arise causing
curtailment or diminution of an essential service or where materials
or services are needed to prevent loss of life or property.
F.
Purchase at auction. Upon a determination made in advance by the
City Council and set forth in writing that the purchase of goods,
products or commodities from a public auction sale is in the best
interests of the public, such items may be purchased at the auction.
The writing shall document the basis for this determination.
[Code 1991, § 2-327]
A.
Conditions for use. Upon determination in writing that competitive
sealed bidding is either not practicable or advantageous to the City,
goods, services, insurance or construction may be procured by competitive
negotiation. The writing shall document the basis for this determination
and the procedures shall be as provided in this section.
B.
Procedures. The procedures for competitive negotiation shall include
the following elements:
(1)
Issuance of a written request for proposal indicating in general
terms that which is sought to be procured, specifying the factors
that will be used in evaluating the proposal and containing or incorporating
by reference the other applicable contractual terms and conditions,
including any unique capabilities or qualifications that will be required
of the contractor.
(2)
Public notice of the request for proposal at least 10 days prior
to the date set for receipt of proposals by posting in a public area
normally used for posting of public notices and by publication in
a newspaper of general circulation in the area in which the contract
is to be performed so as to provide reasonable notice to the maximum
number of offerors that can be reasonably anticipated to submit proposals
in response to the particular request. Public notice may also be published
on appropriate Web sites. In addition, proposals may be solicited
directly from potential contractors.
C.
Procurement of professional services.
(1)
The City Council shall engage in individual discussions with two
or more offerors deemed fully qualified, responsible and suitable
on the basis of initial responses and with emphasis on professional
competence, to provide the required services. Repetitive informal
interviews shall be permissible. The offerors shall be encouraged
to elaborate on their qualifications and performance data or staff
expertise pertinent to the proposed project, as well as alternative
concepts. The request for proposal shall not, however, request that
offerors furnish estimates of man-hours or cost for services. At the
discussion stage, the City Council may discuss nonbinding estimates
of total project costs, including, but not limited to, life-cycle
costing, and, where appropriate, nonbinding estimates of price for
services. Proprietary information from competing offerors shall not
be disclosed to the public or to competitors. At the conclusion of
discussion, outlined in this subsection, on the basis of evaluation
factors published in the request for proposal and all information
developed in the selection process to this point, the City Council
shall select in the order of preference two or more offerors whose
professional qualifications and proposed services are deemed most
meritorious. Negotiations shall then be conducted, beginning with
the offeror ranked first. If a contract satisfactory and advantageous
to the City Council can be negotiated at a price considered fair and
reasonable, the award shall be made to that offeror. Otherwise, negotiations
with the offeror ranked first shall be formally terminated and negotiations
conducted with the offeror ranked second, and so on until such a contract
can be negotiated at a fair and reasonable price. Should the City
Council determine in writing and in its sole discretion that only
one offeror is fully qualified, or that one offeror is clearly more
highly qualified and suitable than the others under consideration,
a contract may be negotiated and awarded to that offeror.
(2)
A contract for architectural or professional engineering services
relating to construction projects may be negotiated by the City Council
for multiple projects provided the projects require similar experience
and expertise, the nature of the projects is clearly identified in
the request for proposal, and the contract term is limited to one
year or when the cumulative total project fees reach the maximum cost
authorized in this subsection, whichever occurs first. Such contract
may be renewable for two additional one-year terms at the option of
the City Council. Under such contract, the fair and reasonable prices,
as negotiated, shall be used in determining the cost of each project
performed; the sum of all projects performed in one contract term
shall not exceed $500,000, except that in any locality or any authority
or sanitation district with a population in excess of 80,000, the
sum of all such projects shall not exceed $1,000,000; and the project
fee of any single project shall not exceed $100,000, except that in
any locality or any authority or sanitation district with a population
in excess of 80,000, the project fee shall not exceed $200,000. Any
unused amounts from the first contract term shall not be carried forward
to the additional term. Competitive negotiations for such contracts
may result in awards to more than one offeror provided the request
for proposal so states and the City Council has established procedures
for distributing multiple projects among the selected contractors
during the contract term.
(3)
Multiphase professional services contracts satisfactory and advantageous
to the state department of transportation for environmental, location,
design and inspection work regarding highways and bridges may be negotiated
and awarded based on a fair and reasonable price for the first phase
only, when completion of the earlier phases is necessary to provide
information critical to the negotiation of a fair and reasonable price
for succeeding phases.
D.
Procurement of other than professional services. Selection shall
be made of two or more offerors deemed to be fully qualified and best
suited among those submitting proposals, on the basis of the factors
involved in the request for proposal, including price if so stated
in the request for proposal. Negotiations shall then be conducted
with each of the offerors so selected. Price shall be considered,
but need not be the sole determining factor. After negotiations have
been conducted with each offeror so selected, the City Council shall
select the offeror which, in its opinion, has made the best proposal,
and shall award the contract to that offeror. When the terms and conditions
of multiple awards are so provided in the request for proposal, awards
may be made to more than one offeror. Should the City Council determine
in writing and in its sole discretion that only one offeror is fully
qualified, or that one offeror is clearly more highly qualified than
the others under consideration, a contract may be negotiated and awarded
to that offeror.
[Code 1991, § 2-301]
Competitive sealed bidding is a method of contractor selection,
other than for professional services, which includes the following
elements:
A.
Issuance of a written invitation to bid containing or incorporating
by reference the specifications and contractual terms and conditions
applicable to the procurement. Unless the City Council has provided
for prequalification of bidders, the invitation to bid shall include
a statement of any requisite qualifications of potential contractors.
When it is impractical to prepare initially a purchase description
to support an award based on prices, an invitation to bid may be issued
requesting the submission of unpriced offers to be followed by an
invitation to bid limited to those bidders whose offers have been
qualified under the criteria set forth in the first solicitation.
B.
Public notice of the invitation to bid at least 10 days prior to
the date set for receipt of bids by posting in a designated public
area, or publication in a newspaper of general circulation, or both.
Public notice may also be published on appropriate Web sites. In addition,
bids may be solicited directly from potential contractors. Any additional
solicitations shall include businesses selected from a list made available
by the state department of minority business enterprise.
C.
Public opening and announcement of all bids received.
D.
Evaluation of bids based upon the requirements set forth in the invitation,
which may include special qualifications of potential contractors,
life-cycle costing, value analysis, and any other criteria such as
inspection, testing, quality, workmanship, delivery, and suitability
for a particular purpose, which are helpful in determining acceptability.
E.
Award to the lowest responsive and responsible bidder. When the terms
and conditions of multiple awards are so provided in the invitation
to bid, awards may be made to more than one bidder.
[Code 1991, § 2-328]
No contract for the construction of any building or for an addition to or improvement of an existing building by the City Council for which state funds of $30,000 or more, either by appropriation, grant-in-aid or loan, are used or are to be used for all or part of the cost of construction shall be let except after competitive sealed bidding or after competitive negotiation as provided under § 2-361C(2). The procedure for the advertising for bids or for proposals and for letting of the contract shall conform, mutatis mutandis, to this article. A person or firm who has been engaged as an architect or engineer for the same project under a separate contract shall not be eligible to bid on or submit a proposal for any such contract or to have the contract awarded to him.
[Code 1991, § 2-329]
A.
An invitation to bid, a request for proposal, any other solicitation,
or any and all bids or proposals may be canceled or rejected. The
reasons for cancellation or rejection shall be made part of the contract
file. The City Council shall not cancel or reject an invitation to
bid, a request for proposal, or any other solicitation, bid or proposal
pursuant to this section solely to avoid awarding a contract to a
particular responsive and responsible bidder or offeror.
B.
The City may waive informalities and irregularities in bids, including
clerical or arithmetic mistakes that are apparent from the face of
the written bid documents and that can be substantiated by objective
evidence drawn from inspection of original work papers, documents
and materials used in the preparation of the bid.
[Code 1991, § 2-330]
A.
Except as prohibited in this article, public contracts may be awarded
on a fixed price or cost reimbursement basis, or on any other basis
that is not prohibited.
B.
Except in case of emergency affecting the public health, safety or
welfare, no public contract shall be awarded on the basis of cost
plus a percentage of cost.
C.
A policy or contract of insurance or prepaid coverage having a premium
computed on the basis of claims paid or incurred, plus the insurance
carrier's administrative costs and retention stated in whole or in
part as a percentage of such claims, shall not be prohibited by this
section.
[Code 1991, § 2-332; Ord. No. 02-07, 3-26-2002]
A.
The City Manager may enter into contracts without competition for:
(1)
The purchase of goods or services that are produced or performed
by:
(2)
The purchase of legal services or expert witnesses or other services
associated with litigation or regulatory proceedings.
(3)
Insurance or electric utility services if purchased through an association
of which it is a member if the association was formed and is maintained
for the purpose of promoting the interest and welfare of and developing
close relationships with similar public bodies, provided such association
has procured the insurance or electric utility services by use of
competitive principles and provided that the City Council has made
a determination in advance after reasonable notice to the public and
set forth in writing that competitive sealed bidding and competitive
negotiation are not fiscally advantageous to the public. The writing
shall document the basis for this determination.
(4)
Any public body may enter into contracts without competitive sealed
bidding or competitive negotiation if purchased through the Virginia
Municipal League or other association of which it is a member if such
association was formed and is maintained for the purpose of promoting
the interest and welfare of and developing close relationships with
the City Council, provided such association has procured the insurance
by use of competitive principles.
B.
No contract for the construction of any building or for an addition
to or improvement of an existing building by any local government
or subdivision of local government for which state funds of not more
than $30,000 in the aggregate or for the sum of all phases of a contract
or project, either by appropriation, grant-in-aid or loan, are used
or are to be used for all or part of the cost of construction shall
be let except after competitive sealed bidding or after competitive
negotiation as provided under Code of Virginia, § 2.2-4303D.
The procedure for the advertising for bids or for proposals and for
letting of the contract shall conform, mutatis mutandis, to this article.
C.
Contracts for certain essential election materials and services are
exempted from the requirements of Code of Virginia, § 2.2-4300
et seq., Code of Virginia, § 2.2-4303 et seq., and Code
of Virginia, § 2.2-4357 et seq., pursuant to Code of Virginia,
§ 24.2-602.
D.
The industrial development authority may enter into contracts without
competition with respect to any item of cost of "authority facilities"
or "facilities" as defined in Code of Virginia, § 15.2-4902.
E.
The City Manager may enter into contracts without competition for
the procurement of services to be provided for the benefit of special
service districts established by the City pursuant to Code of Virginia,
Title 15.2, ch. 24 (Code of Virginia, § 15.2-2400, et seq.).
This exemption, however, shall not apply in cases where any public
funds other than special assessments levied under Code of Virginia,
§ 15.2-2403(6) are used as payment or reimbursement for
such contracts.
[Code 1991, § 2-332(c)]
Unless otherwise provided, the City Manager may extend the term
of an existing contract for services to allow completion of any work
undertaken but not completed during the original term of the contract.
[Code 1991, § 2-333]
A.
Prospective contractors may be prequalified for particular types
of supplies, services, insurance or construction, and consideration
of bids or proposals limited to prequalified bidders. Any prequalification
procedure used by the City shall be established in writing and sufficiently
in advance of its implementation to allow potential bidders a fair
opportunity to complete the process.
B.
Any prequalification of prospective contractors for construction
by the City shall be pursuant to a prequalification process for construction
projects approved by the City Manager. Such process shall be consistent
with the following provisions:
(1)
The application form used in such process shall set forth the criteria upon which the qualification of prospective contractors will be evaluated. The application form shall request of prospective contractors only such information as is appropriate for an objective evaluation of all prospective contractors pursuant to such criteria. Such form shall allow the prospective contractor seeking prequalification to request, by checking the appropriate box, that all information voluntarily submitted by the contractor pursuant to this subsection shall be considered a trade secret or proprietary information subject to the provisions of § 2-375F, provided, however, that the contractor states the reasons why such information needs to be protected.
(2)
In all instances where the City Manager requires prequalification
of potential contractors for construction projects, advance notice
shall be given of the deadline for the submission of prequalification
applications. The deadline for submission shall be sufficiently in
advance of the date set for the submission of bids for such construction
so as to allow the procedures set forth in this subsection to be accomplished.
(3)
At least 30 days prior to the date established for submission of
bids or proposals under the procurement of the contract for which
the prequalification applies, the City Manager shall advise in writing
each contractor which submitted an application whether that contractor
has been prequalified. If a contractor is denied prequalification,
the written notification to such contractor shall state the reasons
for such denial of prequalification and the factual basis of such
reasons.
(4)
A decision by the City Manager denying prequalification under the
provisions of this subsection shall be final and conclusive unless
the contractor appeals the decision, as provided by Code of Virginia,
§ 2.2-4357.
(5)
The City Manager may deny prequalification to any contractor only
if he finds one or more of the following:
(a)
The contractor does not have sufficient financial ability to
perform the contract resulting from such procurement. If a bond is
required to ensure performance of a contract, evidence that the contractor
can acquire a surety bond from a corporation included on the United
States Treasury list of acceptable surety corporations in the amount
and type required by this article shall be sufficient to establish
the financial ability of such contractor to perform the contract resulting
from such procurement;
(b)
The contractor does not have appropriate experience to perform
the construction project in question;
(c)
The contractor or any officer, Director or owner thereof has
had one or more judgments entered against him within the past 10 years
for breach of contract for governmental or nongovernmental construction,
including, but not limited to, design-build or construction management;
(d)
The contractor has been in substantial noncompliance with the
terms and conditions of a prior construction contract with any public
body without good cause. If the City has not contracted with a contractor
in any prior construction contracts, the City Manager may deny prequalification
if the contractor has been in substantial noncompliance with the terms
and conditions of comparable construction contracts with another public
body without good cause. The City Manager shall not utilize this provision
to deny prequalification unless the facts underlying such substantial
noncompliance have been documented in writing in the prior construction
project file and such information relating thereto given to the contractor
at that time, with the opportunity to respond;
(e)
The contractor or any officer, Director, owner, project manager,
procurement manager or chief financial official thereof has been convicted
within the past 10 years of a crime related to governmental or nongovernmental
construction or contracting, including, but not limited to, a violation
of the Virginia Ethics in Public Contracting Act, Code of Virginia,
§ 2.2-4367 et seq., the Virginia Governmental Frauds Act,
Code of Virginia, § 18.2-498.1 et seq., the Virginia Conspiracy
to Rig Bids to Government Act, Code of Virginia, § 59.1-68.6
et seq., or any substantially similar law of the United States or
another state;
(f)
The contractor or any officer, Director or owner thereof is
currently debarred pursuant to an established debarment procedure
from bidding or contracting by any public body, agency of another
state or agency of the federal government; or
[Code 1991, § 2-334]
A.
In the case of a tie bid, preference shall be given to goods produced
in Virginia, goods or services or construction provided by Virginia
persons, firms or corporations; otherwise the tie shall be decided
by lot.
B.
Whenever any bidder is a resident of any other state and such state
under its laws allows a resident contractor of that state a preference,
a like preference may be allowed to the lowest responsible bidder
who is a resident of Virginia.
C.
Notwithstanding the provisions of Subsections A and B of this section, in the case of a tie bid in instances where goods are being offered, and existing price preferences have already been taken into account, preference may be given to the bidder whose goods contain the greatest amount of recycled content.
[Code 1991, § 2-335]
Unless otherwise provided in the invitation to bid, the name
of a certain brand, make or manufacturer does not restrict bidders
to the specific brand, make or manufacturer named. It conveys the
general style, type, character, and quality of the article desired,
and any article which the City Council in its sole discretion determines
to be the equal of that specified, considering quality, workmanship,
economy of operation, and suitability for the purpose intended, shall
be accepted.
[Code 1991, § 2-336]
The City Manager shall establish procedures whereby comments
concerning specifications or other provisions in invitations to bid
or requests for proposals can be received and considered prior to
the time set for receipt of bids or proposals or award of the contract.
[Code 1991, § 2-337]
The City Council shall include in every contract of more than
$10,000 the following provisions:
A.
During the performance of this contract, the contractor agrees as
follows:
(1)
The contractor will not discriminate against any employee or applicant
for employment because of race, religion, color, sex, national origin,
age, disability, or other basis prohibited by state law relating to
discrimination in employment, except where there is a bona fide occupational
qualification reasonably necessary to the normal operation of the
contractor. The contractor agrees to post in conspicuous places, available
to employees and applicants for employment, notices setting forth
the provisions of this nondiscrimination clause.
(2)
The contractor, in all solicitations or advertisements for employees
placed by or on behalf of the contractor, will state that such contractor
is an equal opportunity employer.
(3)
Notices, advertisements and solicitations placed in accordance with
federal law, rule or regulation shall be deemed sufficient for the
purpose of meeting the requirements of this section.
[Code 1991, § 2-338]
A.
Except as provided in this section, all proceedings, records, contracts
and other public records relating to procurement transactions shall
be open to the inspection of any citizen, or any interested person,
in accordance with the Virginia Freedom of Information Act, Code of
Virginia, § 2.2-3700 et seq.
B.
Cost estimates relating to a proposed procurement transaction prepared
by or for the City Council shall not be open to public inspection.
C.
Any competitive sealed bidding bidder, upon request, shall be afforded
the opportunity to inspect bid records within a reasonable time after
the opening of all bids but prior to award, except in the event that
the City Council decides not to accept any of the bids and to reopen
the contract. Otherwise, bid records shall be open to public inspection
only after award of the contract.
D.
Any competitive negotiation offeror, upon request, shall be afforded
the opportunity to inspect proposal records within a reasonable time
after the evaluation and negotiations of proposals are completed but
prior to award, except in the event that the City Council decides
not to accept any of the proposals and to reopen the contract. Otherwise,
proposal records shall be open to public inspection only after award
of the contract.
E.
Any inspection of procurement transaction records under this section
shall be subject to reasonable restrictions to ensure the security
and integrity of the records.
F.
Trade secrets or proprietary information submitted by a bidder, offeror or contractor in connection with a procurement transaction or prequalification application submitted pursuant to § 2-370 shall not be subject to public disclosure under the Virginia Freedom of Information Act, Code of Virginia, § 2.2-3700 et seq. The bidder, offeror, or contractor, however, must invoke the protections of this section prior to or upon submission of the data or other materials, and must identify the data or other materials to be protected and state the reasons why such protection is necessary.
[Code 1991, § 2-339]
Unless canceled or rejected, a responsive bid from the lowest
responsible bidder shall be accepted as submitted, except that, if
the bid from the lowest responsible bidder exceeds available funds,
the City may negotiate with the apparent low bidder to obtain a contract
price within available funds; however, such negotiation may be undertaken
only under conditions and procedures described in writing and approved
by the City Council prior to issuance of the invitation to bid and
summarized therein.
[Code 1991, § 2-340]
A.
A bidder for a public construction contract, other than a contract
for construction or maintenance of public highways, may withdraw his
bid from consideration if the price bid was substantially lower than
the other bids due solely to a mistake in the bid, provided the bid
was submitted in good faith, and the mistake was a clerical mistake
as opposed to a judgment mistake, and was actually due to an unintentional
arithmetic error or an unintentional omission of a quantity of work,
labor or material made directly in the compilation of a bid, which
unintentional arithmetic error or unintentional omission can be clearly
shown by objective evidence drawn from inspection of original work
papers, documents and materials used in the preparation of the bid
sought to be withdrawn. If a bid contains both clerical and judgment
mistakes, a bidder may withdraw his bid from consideration if the
price bid would have been substantially lower than the other bids
due solely to the clerical mistake, that was an unintentional arithmetic
error or an unintentional omission of a quantity of work, labor or
material made directly in the compilation of a bid that shall be clearly
shown by objective evidence drawn from inspection of original work
papers, documents and materials used in the preparation of the bid
sought to be withdrawn. The following procedures for withdrawal of
a bid shall be stated in the advertisement for bids: the bidder shall
give notice in writing of his claim of right to withdraw his bid within
two business days after the conclusion of the bid opening procedure
and shall submit original work papers with such notice. The work papers,
documents and materials may be considered as trade secrets or proprietary
information subject to the conditions of Code of Virginia, § 2.2-4342F.
The mistake shall be proved only from the original work papers, documents
and materials delivered as required in this section.
B.
The City Council may establish procedures for the withdrawal of bids
for other than construction contracts.
C.
No bid shall be withdrawn under this section when the result would
be the awarding of the contract on another bid of the same bidder
or of another bidder in which the ownership of the withdrawing bidder
is more than 5%.
D.
If a bid is withdrawn in accordance with this section, the lowest
remaining bid shall be deemed to be the low bid.
E.
No bidder who is permitted to withdraw a bid shall, for compensation,
supply any material or labor to or perform any subcontract or other
work agreement for the person or firm to whom the contract is awarded
or otherwise benefit, directly or indirectly, from the performance
of the project for which the withdrawn bid was submitted.
F.
If the City Manager denies the withdrawal of a bid under the provisions
of this section, it shall notify the bidder in writing stating the
reasons for its decision and award the contract to such bidder at
the bid price, provided such bidder is a responsible and responsive
bidder.
[Code 1991, § 2-342]
A.
In any public contract for construction which provides for progress
payments in installments based upon an estimated percentage of completion,
the contractor shall be paid at least 95% of the earned sum when payment
is due, with not more than 5% being retained to ensure faithful performance
of the contract. All amounts withheld may be included in the final
payment.
B.
Any subcontract for a public project which provides for similar progress
payments shall be subject to the same limitations.
[Code 1991, § 2-343]
A.
The City Council, when contracting directly with contractors for
public contracts of $200,000 or more for construction of highways,
roads, streets, bridges, parking lots, demolition, clearing, grading,
excavating, paving, pile driving, miscellaneous drainage structures,
and the installation of water, gas, and sewer lines and pumping stations
where portions of the contract price are to be retained, shall include
in the bid proposal an option for the contractor to use an escrow
account procedure for utilization of the City's retainage funds by
so indicating in the space provided in the proposal documents. If
the contractor elects to use the escrow account procedure, the escrow
agreement form included in the bid proposal and contract shall be
executed and submitted to the City within 15 calendar days after notification.
If the escrow agreement form is not submitted within the fifteen-day
period, the contractor shall forfeit his rights to the use of the
escrow account procedure.
B.
In order to have retained funds paid to an escrow agent, the contractor,
the escrow agent, and the surety shall execute an escrow agreement
form. The contractor's escrow agent shall be a trust company, bank
or savings institution with its principal office located in the commonwealth.
The escrow agreement and all regulations promulgated by the City shall
be substantially the same as that used by the commonwealth department
of transportation.
C.
This section shall not apply to public contracts for construction
for railroads, public transit systems, runways, dams, foundations,
installation or maintenance of power systems for the generation and
primary and secondary distribution of electric current ahead of the
customer's meter, the installation or maintenance of telephone, telegraph
or signal systems for public utilities and the construction or maintenance
of solid waste or recycling facilities and treatment plants.
D.
Any such public contract for construction with the City Council,
which includes payment of interest on retained funds, may require
a provision whereby the contractor, exclusive of reasonable circumstances
beyond the control of the contractor stated in the contract, shall
pay a specified penalty for each day exceeding the completion date
stated in the contract.
E.
Any subcontract for such public project which provides for similar
progress payments shall be subject to the provisions of this section.
A.
Any provision contained in any public construction contract that
purports to waive, release, or extinguish the rights of a contractor
to recover costs or damages for unreasonable delay in performing such
contract, either on his behalf or on behalf of his subcontractor,
if and to the extent the delay is caused by acts or omissions of the
City Council, its agents or employees and due to causes within their
control shall be void and unenforceable as against public policy.
B.
Subsection A of this section shall not be construed to render void any provision of a public construction contract that:
(1)
Allows the City Council to recover that portion of delay costs caused
by the acts or omissions of the contractor, or its subcontractors,
agents or employees;
(2)
Requires notice of any delay by the party claiming the delay;
(3)
Provides for liquidated damages for delay; or
(4)
Provides for arbitration or any other procedure designed to settle
contract disputes.
C.
A contractor making a claim against the City Council for costs or
damages due to the alleged delaying of the contractor in the performance
of its work under any public construction contract shall be liable
to the City Council and shall pay it for a percentage of all costs
incurred by the City Council in investigating, analyzing, negotiating,
litigating and arbitrating the claim, which percentage shall be equal
to the percentage of the contractor's total delay claim that is determined
through litigation or arbitration to be false or to have no basis
in law or in fact.
D.
The City Council, when denying a contractor's claim for costs or
damages due to the alleged delaying of the contractor in the performance
of work under any public construction contract, shall be liable to
and shall pay such contractor a percentage of all costs incurred by
the contractor to investigate, analyze, negotiate, litigate and arbitrate
the claim. The percentage paid by the City Council shall be equal
to the percentage of the contractor's total delay claim for which
the City Council's denial is determined through litigation or arbitration
to have been made in bad faith.
[Code 1991, § 2-344]
A.
Except in cases of emergency, all bids or proposals for construction
contracts in excess of $100,000, and bids for such other construction
contracts as the City Manager shall determine, shall be accompanied
by a bid bond from a surety company selected by the bidder which is
legally authorized to do business in Virginia, as a guarantee that,
if the contract is awarded to such bidder, that bidder will enter
into the contract for the work mentioned in the bid. The amount of
the bid bond shall not exceed 5% of the amount bid.
[Code 1991, § 2-345]
A.
Upon the award of any public construction contract exceeding $100,000,
and such other construction contracts as the City Manager shall determine,
awarded to any prime contractor, such contractor shall furnish to
the City Council the following bonds:
(1)
A performance bond in the sum of the contract amount conditioned
upon the faithful performance of the contract in strict conformity
with the plans, specifications and conditions of the contract.
(2)
A payment bond in the sum of the contract amount. Such bond shall
be for the protection of claimants who have and fulfill contracts
to supply labor or materials to the prime contractor to whom the contract
was awarded, or to any subcontractors, in the prosecution of the work
provided for in such contract, and shall be conditioned upon the prompt
payment for all such material furnished or labor supplied or performed
in the prosecution of the work. For purposes of this subsection, the
term "labor or materials" shall include public utility services and
reasonable rentals of equipment, but only for periods when the equipment
rented is actually used at the site.
B.
Each of such bonds shall be executed by one or more surety companies
selected by the contractor which are legally authorized to do business
in Virginia.
C.
Bonds as required for the contracts of the City shall be payable
to the City.
D.
Each of the bonds shall be filed with the department which awarded
the contract, and with the City Attorney.
E.
Nothing in this section shall preclude such contractor from requiring
each subcontractor to furnish a payment bond with surety thereon in
the sum of the full amount of the contract with such subcontractor
conditioned upon the payment to all persons who have and fulfill contracts
which are directly with the subcontractor for performing labor and
furnishing materials in the prosecution of the work provided for in
the subcontract.
[Code 1991, § 2-346]
No action against the surety on a performance bond required
by this article shall be brought unless within one year after:
[Code 1991, § 2-347]
A.
Subject to the provisions of Subsection B of this section, any claimant who has performed labor or furnished material in accordance with the contract documents in the prosecution of the work provided in any contract for which a payment bond has been given, and who has not been paid in full therefor before the expiration of 90 days after the day on which such claimant performed the last of such labor or furnished the last of such materials for which he claims payment, may bring an action on such payment bond to recover any amount due him for such labor or material, and may prosecute such action to final judgment and have execution on the judgment. The obligee named in the bond need not be named a party to such action.
B.
Any claimant who has a direct contractual relationship with any subcontractor from whom the contractor has not required a subcontractor payment bond under § 2-382E, but who has no contractual relationship, express or implied, with such contractor, may bring an action on the contractor's payment bond only if he has given written notice to such contractor within 180 days from the day on which the claimant performed the last of the labor or furnished the last of the materials for which he claims payment, stating with substantial accuracy the amount claimed and the name of the person for whom the work was performed or to whom the material was furnished. Any claimant who has a direct contractual relationship with a subcontractor from whom the contractor has required a subcontractor payment bond under § 2-382E, but who has no contractual relationship, express or implied, with such contractor, may bring an action on the subcontractor's payment bond. Notice to the contractor shall be served by registered or certified mail, postage prepaid, in an envelope addressed to such contractor at any place where his office is regularly maintained for the transaction of business. Claims for sums withheld as retainages with respect to labor performed or materials furnished shall not be subject to the time limitations stated in this subsection.
C.
Any action on a payment bond must be brought within one year after
the day on which the person bringing such action last performed labor
or last furnished or supplied materials.
[Code 1991, § 2-348]
A.
In lieu of a bid, payment, or performance bond, a bidder may furnish
a certified check or cash escrow in the face amount required for the
bond.
B.
If approved by the City Attorney, a bidder may furnish a personal
bond, property bond, or bank or savings and loan association's letter
of credit on certain designated funds in the face amount required
for the bid, payment or performance bond. Approval shall be granted
only upon a determination that the alternative form of security proffered
affords protection to the City Council equivalent to a corporate surety's
bond.
C.
Upon the submission of any proposed cash escrow agreement, personal
bond, or property bond pursuant to this section, a bidder shall pay
a nonrefundable administrative fee of $200 to the City department
of building and development services to offset the City's legal and
administrative costs.
[Code 1991, § 2-349]
The City Manager may require bid, payment, or performance bonds
for contracts for goods or services if provided in the invitation
to bid or request for proposal.
[Code 1991, §§ 2-326(f), 2-350; amended 4-12-2016
by Ord. No. 16-12]
A.
The City Manager may enter into single or term contracts without
following the requirements of this article for competitive sealed
bids or competitive negotiation for the purchase of:
[Amended 6-27-2023 by Ord. No. 23-13]
(1)
Goods
and nonprofessional services and non-transportation-related construction,
if the aggregate or the sum of all phases is not expected to exceed
$200,000;
(2)
Transportation-related
construction, if the aggregate or sum of all phases is not expected
to exceed $25,000; and
(3)
Professional
services, if the aggregate or the sum of all phases is not expected
to exceed $80,000.
B.
The City Manager shall, wherever practicable, seek competitive prices
on small purchases pursuant to this section. For the purchase of goods
in excess of $5,000, the City Manager shall secure at least three
estimates or proposals from different vendors. Written quotations
from vendors shall be obtained, where practicable, although verbal
quotations will be permitted, provided the City Manager causes a written
record of all such verbal quotations to be made and filed with the
records of the transaction.
[Code 1991, § 2-351]
The following transactions are hereby exempt from the provisions
of this article:
A.
Purchases from the state penitentiary or state contracts from the
state purchasing department warehouse.
B.
Legal and other services associated with actual or potential litigation.
C.
Purchases for special police work when the Chief of Police certifies
to the City Manager that items are needed for undercover police operations.
