Government Contracting Legal ServicesHelping clients do business with federal, state and local government agencies.

Virginia has — as does every other state — a set of government contracting statutory and regulatory provisions unique unto itself. In some areas there are substantial similarities to procurement laws found in other states. But Virginia laws and regulations may allow for more alternative policies and procedures to be available to its public bodies and responsible public entities — or to be created by them — than other states.

The following is provided to give you some exposure to the statutory foundation of Virginia government contracting law and to the procurement regulations promulgated under it. Compared to the federal government, Virginia has relatively few government contracting statutory and regulatory provisions. But that paucity makes it all the more important to adhere to the statutory and regulatory language applicable to a given contract for which you want to compete.

Moreover — as alluded to in the first paragraph above — you also need to pay close attention to the policies and procedures a Virginia public body or responsible public entity is following in regard to any given procurement. They may be statutorily mandated policies and procedures that are well established in any given area of procurement. Or — quite to the contrary — they may be essentially new because, in certain circumstances, Virginia law allows a permitted “public body”1 or a “responsible public entity”2 to develop its own alternative policies and procedures in qualifying procurement actions.

Virginia’s primary government contracting statute is the Virginia Public Procurement Act of 1982 (VPPA). In addition, there is also the Virginia Public-Private Education Facilities and Infrastructure Act of 2002 (PPEA) which, notwithstanding its name, applies to much more than education facilities and infrastructure. Some brief, additional information about the VPPA and PPEA is presented below.

Aside from the VPPA and PPEA, there are several other Virginia statutes concerning ethics — which extend to conflicts of interest, fraud, freedom of information, and more — that apply to government contracting. Indeed, they also apply to virtually every other area of state government activity carried out under Virginia law. Several of these statutes are listed below under Other Applicable Virginia Statues. Links to the listed statutes, and a brief discussion of the interaction between the Virginia Freedom of Information Act (FOIA) and Virginia procurement law, are also provided.

Lastly — and of course — Virginia also has its own procurement regulations as promulgated under its government contracting statutes. You need to be aware of, and abide by, the regulations applicable to the contract for which you want to compete, or the contract you have been awarded and are performing under. The great majority of Virginia’s procurement rules, regulations and guidelines are easily accessible online at Virginia’s “eVA Virginia’s eProcurement Portal” (opens a new window). Some brief, additional information about Virginia’s procurement regulations is presented below under Virginia Procurement Rules and Regulations.

The VPPA is the primary source of statutory and regulatory provisions applicable to government procurement in Virginia. When first implemented, the act was proclaimed as establishing “…for the first time in the Commonwealth a comprehensive and coherent statutory code that makes competition the hallmark of public procurement.”3 That may well have been a fair proclamation at the time. But, while the VPPA remains largely comprehensive, whether it remains coherent may be something of an open-ended question.

The VPPA — by its own provisions — permits certain public bodies to develop alternative policies and procedures to those otherwise required by the act itself. Moreover, the VPPA allows those public bodies to do so, as necessary, on a procurement-by-procurement basis. Any such alternative policies and procedures must be consistent with the VPPA and with other applicable statutes. Even so, alternative policies and procedures give rise to uncertainty among potential responsive and responsible bidders and offerors, and that can be problematic.

It should be noted that alternative policies and procedures to those of the VPPA are not permitted in regard to the following: methods of procurement; design-build or construction management contracts; discrimination; pre-qualification of prospective contractors; performance and payment bonds; proscribed participation by public employees; ethical constraints; and many other VPPA statutory and regulatory provisions from which all public bodies may not deviate.

Virginia procurement law has evolved over the years and — in the process — many of the VPPA’s rules and regulations have been supplemented, or even superseded, by other statutory and regulatory provisions. One such set of provisions are those promulgated under the Virginia Public-Private Education Facilities and Infrastructure Act of 2002 (PPEA).

NOTE: All citations under this heading — i.e., “Other Applicable Virginia Statues” — are to sections of the Virginia Code. Clicking the link to any cited section opens a new window.

In addition to the VPPA and PPEA, all parties involved in government contracting in Virginia need to be aware of other statutes that reach — or that can reach — the integrity of the procurement process. These are statutes that, for the most part, address ethics and encompass such things as conflicts of interest, fraud, freedom of information, and more.

The VPPA has its own provisions regarding ethics in procurement transactions (§ 2.2-4367 et seq.). Those provisions apply to all parties — public and private — in the government contracting process. Moreover — separate from and in addition to the ethics provisions of the VPPA — procurement integrity in government contracting is also addressed by several other Virginia statutes. These include the:

1. State and Local Government Conflict of Interests Act (§ 2.2-3100 et seq.);
2. Virginia Governmental Frauds Act (§ 18.2-498.1 et seq.);
3. Virginia Fraud Against Taxpayers Act (§ 8.01-216.1 et seq.);
4. General Assembly Conflicts of Interests Act (§ 30-100 et seq.); and the
5. Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

These statutes — with some qualified exceptions under FOIA — proscribe certain activities and arrangements in which any party in the procurement process may not engage or participate. In this regard, compliance with those statutes is passive. If you do not engage in the prohibited activities or arrangements, you will not be in jeopardy of suffering the sanctions these statutes can impose.

Interestingly, however, FOIA requires the active — even proactive — participation of any party in the procurement process that wants certain information withheld (typically proprietary information) that would otherwise be disclosed pursuant to a FOIA request.

Many people do not associate the freedom of information — and, hence, FOIA — with ethics. But transparency in any procurement is dependent upon the disclosure of all matters related to that procurement. If a FOIA request is made in regard to a government contract, the withholding of any requested information must be justified under another government statute that takes precedence over FOIA. At the federal level, that may be a statute involving national security. At the state level, it may be a statute that protects proprietary information — for example, trade secrets, inventions, software coding and compiling, or other intellectual property.

So, generally speaking, FOIA does not call for passive or active compliance by a party indifferent to the disclosure of information about that party pursuant to a FOIA request.

However, if a party needed to disclose proprietary information during the procurement process and wants that proprietary information to remain confidential, then that party needs to be proactive from the beginning of the procurement process in seeking to keep the proprietary information confidential. The party seeking protection from FOIA needs to make a written request for protection from disclosure. If that party goes on to become the successful bidder, there are any number of additional steps it can and should take in an effort to maintain confidentiality of the proprietary information.

Listing examples of FOIA-related steps to take in seeking to protect proprietary information (and the decision points presented in taking them as matters progress) is beyond the scope of this writing. However, any party planning to use proprietary information in competing for a government contract — that is, information the party wants or needs to protect from disclosure — should develop a strategy ahead of time for actions it can and will likely need to take to maximize the possibility of keeping that proprietary information confidential.

All Virginia governmental agencies develop and issue regulations for the enforcement of statutes applicable to those areas of oversight with which an agency has been charged. These regulations are published in the Virginia Administrative Code (VAC). (The VPPA is referenced in seven of the 24 titles constituting the VAC.4) However, trying to find your way through the VAC for titles that may affect how you respond to a given Invitation to Bid or a Request for Proposal is not necessary (at least not routinely, although counsel should be consulted if there are any questions in this area).

Rather, there is a much more readily accessible resource for guidance regarding government contracting in Virginia. It is Virginia’s “Agency Procurement and Surplus Property Manual” (APSPM)5 which is published and maintained by the Department of General Services (DGS) Division of Purchases and Supply (DPS). The September 1998 edition is the current edition of the APSPM. It is updated periodically by DGS / DPS via the issuance of Procurement Information Memorandums which are effective until included in a revision to the APSPM or rescinded. As of this writing, the APSPM has been updated through July 6, 2015.

In addition, Virginia has moved most of its procurement procedures to the Internet. The primary website for doing business with Virginia is entitled “eVA Virginia’s eProcurement Portal” at https://eva.virginia.gov/ (opens a new window). There is an abundance of information available on the “eVA Virginia’s eProcurement Portal” website, including how Virginia interacts with its vendors and vice versa.