Ethics Reform Overhaul Passes
A final conflicts /ethics omnibus bill passed the General Assembly on February 27. Negotiations between the Senate and House Conferees on HB 2070 (Gilbert) and SB 1424 (Norment) went down to the wire, but a last minute bipartisan compromise deal was adopted by both chambers.
VACo worked throughout the interim and session to support common sense ethics reform efforts, while making sure that changes to Virginia’s public ethics and conflicts of interest (COI) laws were applicable and practical at the local level.
Various bills and proposals throughout the session intended to reform rules for state officials could have negatively impacted local officials in unintended ways. VACo is pleased that many local concerns were addressed in the final compromise bill.
Key highlights of the legislation include:
Virginia Conflicts of Interest and Ethics Advisory Council maintains its local government representation and goes from 15 to 9 members with Governor Terry McAuliffe appointing one member from a list submitted by VACo and one member from a list submitted by VML. The Council’s powers include reviewing disclosure forms, issuing advisory opinions, issuing gift waivers and conducting training, but does not include investigatory or subpoena powers;
Local government officers and employees will file disclosure forms with the clerks of their respective governing bodies and not electronically with the Virginia Conflicts of Interest and Ethics Advisory Council;
Local government officials and members of their immediate family cannot accept single gifts over $100 from a person that they or their family member know is a registered lobbyist, a lobbyist’s principal or is seeking to become party to a contract with the locality;
Exemptions from the $100 limit, include:
- Gifts of food or beverages at a widely attended event (defined as an event in which at least 25 persons have been invited to attend or are expected to attend – open to public or open to a group of individuals) – Disclosure will still be required;
- Gifts from foreign dignitaries over $100 may be accepted by the locality or the Commonwealth;
- Gifts from personal friends which meet a number of criteria.
The act clearly spells out items not considered gifts, including:
- A gift of a value of $50 or less;
- Travel paid by the Commonwealth or a political subdivision;
- Travel related to an official meeting of the Commonwealth, its political subdivisions, or any board, commission, authority or other entity, to which such person has been appointed or elected or is a member by virtue of his office or employment (however travel paid by a third party or for out of state travel must be disclosed);
- Any food or beverages received at or registration or attendance fees waived for any event that the individual is a featured speaker, presenter or lecturer;
- An unsolicited award of appreciation or recognition (plaques, etc.);
- Gifts from family members (including extended family and step family members).
The provisions of the Act will not become effective until January 1, 2016. Governor McAuliffe has not yet stated whether he will suggest amendments to the bill.
VACo will continue to analyze the legislation and will communicate findings to members.
Two-year joint study prompts slew of changes to the Virginia Public Procurement Act
Spurred by a two-year study, a pair of Omnibus procurement bills passed the General Assembly resulting in a number of changes to the Virginia Public Procurement Act.
- The bills eliminate the requirement that a public body must make a written determination before using an RFP and competitive negotiation.
- They eliminate the ability of a public body to use cooperative procurement for construction, including Job Order Contracting (JOC).
- They allow a public body’s small purchase procedure to be used for non-transportation related construction contracts.
- They raise the job order contracting (JOC) limit for individual job orders from $400,000 to $500,000 and the limit for the sum of all jobs performed in a one-year contract term from $2 million to $5 million.
- They allow a JOC contract to include ancillary A/E fees up to $25,000 per job and $75,000 per contract term where the services are incidental and directly related to the job.
- They reduce the number of one year renewals of a JOC contract from four to two.
- They require state agencies (including higher education) and local public bodies to submit a written report to DGS through June 30, 2017, for any construction project exceeding $2 million that uses a procurement method other than competitive sealed bidding showing the justification for the use of such alternative procedure.
- They require VACo, VML and state agencies, to file a report with the General Assembly Committees on General Laws by October 1, 2017, indicating their “experiences and findings relating to the appropriateness and effectiveness of (i) job order contracting in general, (ii) the project cost limitations for job order contracting, and (iii) the architectural and professional engineering term contract limits.”
In addition to the omnibus bill, there were several other procurement bills that will affect the way localities do business.
- HB 1917 (LeMunyon) requires state agencies and local public bodies to post a notice on EVA or the locality’s website before entering into a contract with another governmental agency for services above $25,000 that are on the “commercial activities list” prepared by the State Department of Planning and Budget and to allow private vendors the opportunity to comment on such intended purchase.
- HB 1608 (Davis) prohibits local governing bodies from requiring contractors to pay their employees more than required by state or federal law. The bill exempts contracts entered into prior to January 31, 2016, or the renewal or future rebids of services thereof. Also the bill does not prohibit a locality from entering into contracts for economic development that the company receiving the incentives is required to maintain a certain stated wage level for its employees.
- HB 1628 (Albo) amends Section 2.2-4309 to allow contractors to make claims above 25 percent of a fixed price contract when there has not been an agreed upon change order. The bill also states that modifications made to contracts by localities that fail to comply with this section (approval of change orders above 25 percent by governing body) are voidable at the direction of the governing body, and that the unauthorized approval of a modification cannot be the basis of a contractual claim.
- SB 1226 (Reeves) requires that RFPs indicate whether a numerical scoring system will be used in the evaluation of proposals, and in the event that a such a system will be used that the point values assigned to each of the evaluation criteria be included in the RFP or posted at the location designated for public posting of procurement notices prior to the due date and time for receiving proposals.
- SB 1378 (Barker) provides that public bodies can purchase from contracts entered into by the Metropolitan Washington Council of Governments.
VACo Contact: Phyllis Errico, CAE