LOUDOUN COUNTY PROCUREMENT RESOLUTION

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LOUDOUN COUNTY

PROCUREMENT RESOLUTION

Adopted by Board of Supervisors on June 21, 2011. Amended June 20, 2012, May 4, 2018, April 5, 2019, October 7, 2019, July 1, 2020, and

July 1, 2021

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LOUDOUN COUNTY PROCUREMENT RESOLUTION

Table of Contents

Article 1. GENERAL PROVISIONS .................................................................................... 5 Section 1. Title ......................................................................................................................... 5 Section 2. Procurement Mission, Vision and Values Statement ............................................. 5 Section 3. Organization ........................................................................................................... 5 Section 4. Rules and Regulations ............................................................................................ 7 Section 5. Small, Minority, Women, Service Disabled Veteran –Owned and Micro Business Program..................................................................................................................................... 7 Section 6. Leases ..................................................................................................................... 8 Section 7. Definitions .............................................................................................................. 9 Article 2. PROCUREMENT POLICIES............................................................................ 14 Section 1. General .................................................................................................................. 14 Section 2. Requisitions .......................................................................................................... 15 Section 3. Specifications ........................................................................................................ 15 Section 4. Methods of Procurement....................................................................................... 17 Section 5. Exceptions to the Requirement for Competitive Procurement ............................. 25 Section 6. General Procurement Provisions .......................................................................... 27 Section 7. Contracts ............................................................................................................... 37 Section 8. Contract Administration ....................................................................................... 40 Section 9. Compliance with Conditions on Federal Grants or Contract................................ 50 Section 10. Audit by the County ........................................................................................... 50 Section 11. HIPAA Compliance ............................................................................................ 50 Section 12. Immigration Reform and Control Act Compliance ............................................ 51 Section 13. Authority to Transact Business in Virginia ........................................................ 51 Section 14. Standardization ................................................................................................... 51 Section 15. Qualified Products List ....................................................................................... 52 Article 3. CONSTRUCTION CONTRACTING ............................................................... 54 Section 1. Authority ............................................................................................................... 54 Section 2. Definitions ............................................................................................................ 54 Section 3. Procurement Policies ............................................................................................ 54 Section 4. Methods of Procurement for Construction Services ............................................. 56 Section 5. Construction Solicitation Procedures and Requirements ..................................... 59 Article 4. BIDDER/CONTRACTOR REMEDIES ............................................................ 63 Section 1. Ineligibility ........................................................................................................... 63 Section 2. Appeal of Denial of Withdrawal of Bid ............................................................... 64 Section 3. Appeal of Determination of Non-responsibility ................................................... 64 Section 4. Protest of Award or Decision to Award ............................................................... 65 Section 5. Contractual Disputes ............................................................................................. 66 Section 6. Legal Action ......................................................................................................... 66 Article 5. ETHICS IN PROCUREMENT CONTRACTING ........................................... 67 Section 1. General .................................................................................................................. 67 Section 2. Solicitation or Acceptance of Gifts....................................................................... 67 Section 3. Disclosure of Subsequent Employment ................................................................ 68 Section 4. Gifts ...................................................................................................................... 68

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Section 5. Kickbacks ............................................................................................................. 68 Section 6. Solicitation Development...................................................................................... 68 Section 7. Purchase of Building Materials, etc., from Architect or Engineer Prohibited ...... 69 Section 8. Certification of Compliance; Penalty for False Statement ................................... 69 Section 9. Misrepresentations ................................................................................................ 69 Section 10. Penalty for Violation .......................................................................................... 69 Article 6. SUPPLY MANAGEMENT ................................................................................. 70 Section 1. Excess and Surplus Property ................................................................................ 70 Section 2. Disposal Methods for Excess and Surplus Property ............................................. 70 Section 3. Other Provisions ................................................................................................... 71 Article 7. PUBLIC-PRIVATE PARTNERSHIPS ............................................................. 72 Section 1. Public-Private Partnership Projects ...................................................................... 72 Section 2. General Provisions ................................................................................................ 73 Section 3. Solicited Proposals................................................................................................ 75 Section 4. Unsolicited Proposals ........................................................................................... 76 Section 5. Unsolicited Proposal Preparation and Submission ............................................... 77 Section 6. Proposal Evaluation and Selection Criteria .......................................................... 82 Section 7. Interim and Comprehensive Agreements ............................................................. 84

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WHEREAS, the Loudoun County Board of Supervisors (“Board”) is dedicated to securing high quality goods and services at reasonable cost while ensuring that all procurement actions be conducted in a fair and impartial manner with no impropriety or appearance thereof, that all qualified vendors have access to County business and that no offeror be arbitrarily or capriciously excluded, that procurement procedures involve openness and administrative efficiency, and that the maximum feasible degree of competition is achieved;

WHEREAS, the Virginia Public Procurement Act at §§ 2.2-4300 through 2.2-4377 of the

Code of Virginia (as amended), enunciates the public policies pertaining to governmental procurement from nongovernmental sources which may or may not result in monetary consideration for either party or a third party and applies whether the consideration is monetary or nonmonetary and regardless of whether the public body, the contractor, or some third party is providing the consideration;

WHEREAS, § 15.2-1236 of the Code of Virginia (as amended) requires all purchases of

and contracts for supplies, materials, equipment and contractual services to be in accordance with the Virginia Public Procurement Act (“VPPA”);

WHEREAS, § 2.2-4302 of the Code of Virginia (as amended) permits implementation of

the VPPA by ordinance, resolutions, or regulations consistent with that Act by a public body empowered by law to undertake the activities described by the VPPA;

WHEREAS, § 2.2-4343 of the Code of Virginia (as amended) permits the adoption, by

ordinance or resolution, alternative policies and procedures which are (i) based on competitive principles and (ii) generally applicable to procurement of goods and services by such governing body and its agencies, with certain exceptions;

WHEREAS, § 15.2-1543 of the Code of Virginia (as amended), empowers the Board to

employ a Purchasing Agent and set his duties as prescribed by §§ 15.2- 1233 through 15.2-1240 and 15.2-1543, of the Code of Virginia (as amended);

WHEREAS, these regulations are promulgated by resolution of the Board, pursuant to §

2.2-4302 and § 2.2-4343 of the Code of Virginia, Virginia Public Procurement Act, as amended, to effectuate the purposes of those statutes with regard to procurement of supplies, services, insurance and construction for the County. This resolution shall have the force and effect of law, and may be amended, altered or repealed by the Board, as it shall deem appropriate with minor changes and edits to be made by the Purchasing Agent for Loudoun County, Virginia.

THEREFORE BE IT RESOLVED that this resolution prescribes the basic policies for the

conduct of all procurement in Loudoun County (except as otherwise stipulated herein) to take effect immediately upon passage, as follows:

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Article 1. GENERAL PROVISIONS

Section 1. Title

This resolution shall be known as the Loudoun County Procurement Resolution.

Section 2. Procurement Mission, Vision and Values Statement

A. Mission Statement The mission of the Division of Procurement is to achieve the economical, efficient, and effective acquisition of goods and services in accordance with the Virginia Public Procurement Act and ensuring contract awards are made in a fair and impartial manner with avoidance of even the appearance of impropriety, while giving all qualified vendors access to the County’s business.

B. Vision Statement

The Division of Procurement provides value added services to citizens of Loudoun County, County staff, and the vendor community through innovation and excellence while obtaining the required goods and services in an open and fair manner utilizing sound purchasing principals. Daily, we strive for innovation and excellence in our operation and service delivery to management, departments, and vendors.

C. Value Statement In all procurement transactions, the Division of Procurement seeks to preserve the highest standards of objectivity, integrity, transparency, fairness, accountability, efficiency, courtesy, and professionalism.

Section 3. Organization

A. The Division of Procurement is a division of the Loudoun County government, and operates under the direction and supervision of the Director, Department of Finance and Budget.

B. The Division Manager shall be the Purchasing Agent who shall have general

supervision of the Division. The Purchasing Agent shall be appointed by the Director, Department of Finance and Budget, upon approval of the County Administrator.

C. The Purchasing Agent shall be responsible for the procurement of all goods,

services, construction, and Architectural and Engineering services for Loudoun County Government.

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D. The primary duty of the Purchasing Agent is to carry out the principles of modern central Procurement in accordance with applicable laws and regulations and with generally accepted professional standards in such a manner as to ensure the maximum efficiency of governmental operation, and to give to County taxpayers the benefit in savings that such accepted business procedures are known to produce.

E. Contracting Authority

1. The County Administrator or designated Purchasing Agent shall have the

authority to award and amend contracts up to the following, in accordance with the VPPA, without further approval: Invitations for Bid - $8,000,000, Requests for Proposal - $2,000,000, Rideable/Cooperative Contracts - $2,000,000, and Sole Source Contracts - $1,000,000.

2. The County Administrator or designated Purchasing Agent shall have authority to delegate authority to award contracts as deemed necessary.

3. The County Administrator or Director, Department of General Services

shall have the authority to execute and/or amend leases up to $500,000 without further approval.

4. The Finance/Government Operations and Economic Development Committee may recommend the award of all contracts and leases over the thresholds listed in E.1 and E. 3 above to the Board. No contract or lease in excess of the amounts contained herein shall be effective unless approved by the Board except as otherwise authorized in this Resolution.

5. The County Administrator or designated Purchasing Agent may terminate

any contract for convenience, cause, or non-appropriation of funds in accordance with the contract and after consultation with the Office of the County Attorney.

6. For non-construction contracts over the limits identified in E.1 above and

authorized by the Board, the County Administrator or designated Purchasing Agent may amend such contracts during performance, including single or cumulative increases, up to twenty-five percent (25%) of the original contract price, without prior approval of the Board. However, the Board shall approve single or cumulative increases exceeding twenty-five percent (25%) of the original contract price or $50,000.00, whichever is greater, before the County Administrator or designated Purchasing Agent authorizes the change. Upon such approval, the County Administrator or designated Purchasing Agent shall have authority to approve additional single or cumulative increases up to twenty-five percent (25%) of the original contract price beyond the most recent Finance/Government Operations and Economic Development Committee and Board of Supervisors approval.

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7. For construction, design-build, or construction management at risk

(“CMAR”) contracts over the limits identified in E.1 above, the County Administrator or designated Purchasing Agent may amend the contract, including increases up to five percent (5%) of the original contract amount for those items reasonable and incidental to the normal course of construction, including but not limited to, field changes, unforeseen existing conditions, and errors and omissions. However, any changes as a result of additional construction project requests and/or changes to the project or claims shall be approved by the Finance/Government Services and Operations Committee and the Board. The County Administrator or designated Purchasing Agent shall not approve individual change orders that exceed five percent (5%), without prior approval of the Board except when a delay in approving the change order would result in additional cost. Such situations shall be documented and Board approval shall be obtained as soon as practicable.

8. Architectural and engineering projects awarded under term contracts with

multiple firms shall be distributed on a rotating basis, based on total dollar value of previous projects released under the term. However, staff reserves the right to go off of rotation as necessary for reasons such as, but not limited to, availability, timing, and specialized expertise, etc.

Section 4. Rules and Regulations The Purchasing Agent shall prepare and maintain the Loudoun County Procurement

Resolution and shall be authorized to develop additional rules, regulations, and procedures consistent with the laws of the Commonwealth of Virginia governing the operations of County procurement. The Purchasing Agent shall prescribe methods and procedures for conducting transactions electronically in accordance with this Resolution. Minor changes to the Resolution may be made by the Purchasing Agent without seeking the Board of Supervisors’ approval. Minor changes may include necessary edits and changes or corrections made to the Code of Virginia that must be incorporated into the Resolution.

Section 5. Small, Minority, Women, Service Disabled Veteran –Owned and Micro Business Program

The County will undertake every reasonable effort to increase the opportunity for

participation in the procurement process by small, minority-, women-, and service disabled veteran-owned firms and micro-businesses (as defined in §2.2-4310 and §15.2-965.2 of the Code of Virginia) . To this end, the Division of Procurement will:

A. Ensure that small, minority-, women-, and service disabled veteran-owned firms

and micro businesses have the maximum practicable opportunity to participate in the procurement process.

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B. Make small, minority-, women-, and service disabled veteran-owned firms and micro businesses aware of the County’s procurement policies and current procurement opportunities.

C. Participate in training seminars and outreach events for the purpose of informing small, minority-, women-, and service disabled veteran-owned firms and micro businesses of procurement opportunities and procedures.

D. Reduce bonding requirements where appropriate and in accordance with governing laws.

E. Initiate other actions, as appropriate, to increase the opportunity for the involvement of small, minority-, women-, and service disabled veteran-owned firms and micro businesses in the County’s procurement process, such as encouraging departments to actively solicit quotes from small, minority-, women-, and service disabled veteran-owned firms and micro businesses.

F. Participate to the maximum extent possible in all local and regional small, minority, women-, and service disabled veteran-owned procurement fairs.

G. Cooperate with the Department of Supplier Business and Supplier Diversity, the United States Small Business Administration, and other public or private agencies.

Section 6. Leases

A. Leases shall be reviewed by the Office of the County Attorney and signed by the County Administrator or Director, Department of General Services.

B. The County Administrator or Director, Department of General Services is

authorized to administer said leases. Administration of leases shall include, but shall not be limited to, the negotiation and resolution of disputes, the amendment of leases (subject to Finance/Government Operations and Economic Development Committee and Board of Supervisors approval as may be required herein) and termination of leases after consultation with the Office of the County Attorney.

C. For leases over $500,000 approved by the Finance/Government Operations and

Economic Development Committee and Board, the County Administrator or the Director, Department of General Services may amend the lease by up to 25% of the original approved lease value, without the prior approval of the Board. However, on such leases, the Board shall approve single or cumulative increases exceeding 25% of the original approved lease value before the County Administrator or the Director, Department of General Services authorizes the change. Upon such approval, the County Administrator or Director, Department of General Services shall have authority to approve additional single or cumulative increases up to 25% of the original approved lease value beyond the most recent Finance/Government Operations and Economic Development Committee and Board of Supervisors

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approval. Section 7. Definitions

A. “Agency” means an organization that is contained under the County government

organizational structure; same meaning as department or office. B. “Best value,” as predetermined in the solicitation, means the overall combination

of quality, price, and various elements of required services that in total are optimal relative to a public body’s needs.

C. “Competitive sealed bidding” means a formal method of selecting the lowest

responsive and responsible bidder. It includes the issuance of a written Invitation to Bid (“IFB”), public notice, a public bid opening, and evaluation based on the requirements set forth in the invitation (See Article 2, Section 4 A herein). Upon implementation of methods prescribed by the Purchasing Agent for conducting transactions electronically, an IFB may be issued directly to vendors electronically, or bids in response thereto may be submitted electronically if specifically authorized in the IFB.

D. “Competitive negotiation” means a formal method of selecting the offeror (or

offerors, in the case of multi-award contracts), which in the opinion of the County has made the best proposal and provides the best value or whose professional qualifications and proposed services are deemed most meritorious. It includes the issuance of a written Request for Proposal (“RFP”), public notice, evaluation based on the criteria set forth in the Request for Proposal, and allows negotiation with the top rated offeror or offerors (See Article 2, Section 4 B herein). Upon implementation of methods prescribed by the Purchasing Agent for conducting transactions electronically, a RFP may be issued directly to vendors electronically, or proposals received in response may be submitted electronically if specifically authorized in the RFP.

E. “Construction” means building, altering, repairing, improving, or demolishing any

structure, building, road, drainage, or sanitary facility, and any draining, dredging, excavation, grading, or similar work upon real property.

F. “Construction management contract” means a contract in which a party is retained

by the County to coordinate and administer contracts for construction services for the benefit of the County and may also include, if provided in the contract, the furnishing of construction services to the County.

G. “Consultant services” means any type of services required by the County, but not

furnished by its own employees, which is in its nature so unique that it should be obtained by negotiation on the basis of demonstrated competence and qualification for the type of service required and at fair and reasonable compensation, rather than by competitive sealed bidding.

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H. “Debarment” means an action taken to deny prequalification, disqualify, or debar an individual or firm from consideration for award of contracts by the County. A debarment shall not be for a period exceeding three (3) years and during that time, the debarred entity or individual shall be ineligible to bid or propose on the public body’s solicitations.

I. “Department” means an organization that is contained under the County

government organizational structure; same meaning as agency or office. J. “Design-build contract” means a contract between a public body and another party

in which the party contracting with the public body agrees to both design and build the structure, roadway, or other item specified in the contract.

K. “Emergency” means a threat to life or property or an unforeseen situation, which

curtails or greatly diminishes an essential service, as determined by the County Administrator or designated Purchasing Agent.

L. “Excess Property” means property which exceeds the requirement of the

department or agency to which the property is assigned. M. “Faith–Based Organization” means a religious organization that is or applies to be

a contractor to provide goods or services for programs funded by the block grant provided pursuant to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, P. L. 104- 193.

N. “Firm” means any individual, partnership, corporation, association, or other legal

entity permitted by law to conduct business in the Commonwealth of Virginia; or any other individual, firm, partnership, corporation, association or other legal entity qualified to perform professional, non-professional, or consultant services.

O. “Fixed Asset” means a tangible item (not a component) which has an expected

useful life of at least one year and a dollar value in excess of $10,000. P. “Goods” means all material, equipment, supplies, printing, and information

technology hardware and software. Q. “Immediate family” means a spouse, child, parent, brother, sister, and any other

person living in the same household as the employee. R. “Independent contractor” means a worker over whom the employer has the right to

control or direct the result of the work done, but not the means and methods of accomplishing the result.

S. “Ineligibility” means an action taken by the public body to refuse permission to

participate, or disqualify from participation, an offeror, bidder, or contractor, in public contracts.

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T. “Informality” means a minor defect or variation of a bid or proposal from the exact

requirements of the IFB or the RFP which does not affect the price, quality, quantity, or delivery schedule for the goods, services, or construction being procured.

U. “Job order contracting” means a method of procuring construction by establishing a

book of unit prices and then obtaining a contractor to perform work as needed using the prices, quantities, and specifications in the book as the basis of its pricing. The contractor may be selected through either competitive sealed bidding or competitive negotiation depending on the needs of the County. A minimum amount of work may be specified in the contract.

V. “Nonprofessional services” means any service not specifically identified as a professional service.

W. “Official responsibility” means administrative or operating authority, whether

intermediate or final, to initiate, approve, disapprove, or otherwise affect a procurement transaction or any resulting claim.

X. “Pecuniary interest arising from the procurement” means a personal interest in a

contract, as defined in the State and Local Government Conflict of Interests Act, §§ 2.2-3100, et seq. (as amended).

Y. “Potential bidder or offeror” means a person who, at the time the County negotiates

and awards or proposes to award a contract, is engaged in the sale or lease of goods, or the sale of services, insurance, or construction, of the type to be procured under such contract, and who at such time is eligible and qualified in all respects to perform that contract, and who would have been eligible and qualified to submit a bid or proposal had the contract been procured through competitive sealed bidding or competitive negotiation.

Z. “Procurement transaction” means all functions that pertain to the County’s

procurement from nongovernmental sources, including the obtaining of any goods, services or construction, including description of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration. A Procurement Transaction may or may not result in monetary consideration for either party and applies whether the consideration is monetary or nonmonetary and regardless of whether the County, the contractor, or some third party is providing the consideration.

AA. “Professional services” means work performed by an independent contractor within

the scope of practice of accounting, actuarial services, architecture, dentistry, land surveying, landscape architecture, law, medicine, optometry, pharmacy, or professional engineering.

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AA. “PAG” means Proposal Analysis Group. BB. “Public body” means any legislative, executive, or judicial body, including the

County of Loudoun, agency, office, department, authority, post, commission, committee, institution, board, or political subdivision created by law to exercise some sovereign power or to perform some governmental duty, and empowered by law to undertake the activities described in this Resolution. Public body shall include any metropolitan planning organization or planning district commission which operates exclusively within the Commonwealth of Virginia.

CC. “Public contract” or “contract” as used herein means an agreement between a public

body and a nongovernmental source that is enforceable in a court of law.

DD. “Public” or “county employee” means any person employed by the County of Loudoun, including elected officials or appointed members of governing bodies.

EE. “Responsible bidder” or “offeror” means an individual, company, firm,

corporation, partnership, or other organization who has the capability in all respects, to perform fully the contract requirements and the moral and business integrity and reliability which will assure good faith performance, and who has been prequalified, if required.

FF. “Responsive bidder” or “offeror” means an individual, company, firm, corporation,

partnership or other organization who has submitted a bid which conforms in all material respects to the Invitation to Bid or Request for Proposal.

GG. “Reverse auctioning” means a procurement method wherein bidders are invited to

bid on specified goods or nonprofessional services, but not construction or professional services, through real-time electronic bidding, with the award being made to the lowest responsive and responsible bidder. During the bidding process, bidder’s prices are revealed and bidders shall have the opportunity to modify their bid prices for the duration of the time period established for bid opening.

HH. “Services” means any work performed by an independent contractor wherein the

service rendered does not consist primarily of acquisition of equipment or materials, or the rental of equipment, materials, and supplies.

II. “Sheltered workshop” means a work-oriented rehabilitative facility with a

controlled working environment and individual goals which utilizes work experience and related services for assisting the handicapped person to progress toward normal living and a productive vocational status.

JJ. “Surplus property” shall mean that property which exceeds the requirement of the

entire County.

KK. “Term contract” means a type of contract in which a source of supply is established

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for a specified period of time for specified services or supplies; usually characterized by an estimated or definite minimum quantity, with the possibility of additional requirements beyond the minimum, all at a predetermined unit price.as set forth in Virginia Code § 2.2-4303.1.

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Article 2. PROCUREMENT POLICIES

Section 1. General

A. Loudoun County contracts with nongovernmental contractors for the purchase or

lease of goods, or for the purchase of services, insurance, construction, or construction management, shall be awarded after competitive sealed bidding or competitive negotiation, except as otherwise provided for in this Resolution or as may be allowed by law.

B. Professional services shall be procured using competitive negotiation, except as otherwise provided for in this Resolution or as may be allowed by law.

C. Goods, non-professional services, and insurance may be procured using competitive sealed bidding or competitive negotiation, except as otherwise provided for in this Resolution or as may be allowed by law.

D. Upon written determination made in advance that competitive sealed bidding is either not practical or not fiscally advantageous to the public, insurance may be procured through a licensed agent or broker selected through the competitive negotiation process for non-professional services. The writing shall document the basis for the determination and shall be included in the appropriate contract file.

E. Construction shall be procured only by competitive sealed bidding, except that competitive negotiation may be used in the following instances:

1. For construction contracts based on a fixed price design-build basis or

construction management basis; or

2. For construction of highways and any draining, dredging, excavation, grading, or similar work upon real property following a determination made in advance 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.

F. The Purchasing Agent shall be authorized to delegate procurement authority to

County departments, agencies, divisions and bureaus (collectively, “County departments”) at dollar limits as is deemed necessary. Such authorization shall be documented in writing. In exercising delegated procurement authority, County departments are responsible for obtaining as full and open competition as is practicable.

G. Paper and paper products shall be procured using competitive sealed bidding.

Award shall be made to the lowest responsive and responsible bidder offering recycled paper and paper products of a quality suitable for the purpose intended

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providing that the bid price is not more than ten percent (10%) greater than the bid price of the lowest responsive and responsible bidder offering non-recycled paper and paper products. Recycled paper and paper products means any paper or paper products meeting the Environmental Protection Agency (“EPA”) Recommended Content Standards defined in 40 C.F.R. Part 247.

H. Certification of sufficient funds; orders and contracts in violation of §15.2-1238 Code of Virginia (as amended). Except in an emergency, no order for delivery on a contract or open market order for supplies, materials, equipment, professional and consultant services or contractual services for any County department or agency shall be awarded until the Director of the Department of Finance and Procurement has certified that the unencumbered balance in the appropriation concerned, in excess of all unpaid obligations, is sufficient to defray the cost of such order. Whenever any department or agency of the County government shall purchase or contract for any supplies, materials, equipment or contractual services contrary to the provisions of §15.2-1238 or the rules and regulations made thereunder, such order or contract shall be void and of no effect. The head of such department or agency shall be personally liable for the costs of such orders or contracts.

I. Best value concepts may be considered when procuring goods, nonprofessional and consultant services, but not construction or professional services. The criteria, factors, and basis for consideration of best value and the process for the consideration of best value shall be as stated in the procurement solicitation.

J. The County may enter into contracts with faith-based organizations on the same

basis as any other nongovernmental source subject to the requirements of §2.2-4343.1 of the Code of Virginia (as amended).

Section 2. Requisitions

The requisition is the way in which an agency or department alerts the Division of Procurement to a need for a procurement on behalf of that agency or department and pre-encumbers the required funds. The agency or department communicates, via the requisition, a need (or needs) to the Division of Procurement. The requisition identifies a funding source, pre-encumbers those funds and authorizes the expenditure of funds for the requested item(s). Specifications presented on and/or attached to the requisition provide the basic information for requesting quotations, invitations to bid, requests for proposals, and contract (purchase order) development for goods and services needed by the agency or department. Requisitions shall be authorized by County staff having appropriate approval authority.

Section 3. Specifications

A. The term "specification" refers to that portion of a requisition or solicitation that describes the physical or functional characteristics or the nature of a good, service, or construction item required by the using agency. It may include a description of

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any requirement for inspecting, testing, or preparing a good, service, or construction item for delivery. A specification may include requirements for samples, prototypes, warranty, and packaging. The term specification is often used interchangeably with the terms "purchase description," "purchase specification," "purchase requirement," "commercial item description," "scope of work," and "statement of work”.

B. Authority for Specifications. The Purchasing Agent or authorized designee shall have authority and responsibility for approval of specifications. §2.2-4300(C) of the VPPA states, in part: “…that specifications reflect the procurement needs of the purchasing body rather than being drawn to favor a particular vendor…” Since the purpose of a specification is to translate a user's need into the delivery of a good or service, the development of specifications should be a cooperative effort between the using agency or department and Procurement. The using agency or department has substantial responsibility to develop clear and concise specifications that fully articulate its need. However, prior to release of a specification as part of a solicitation, the Purchasing Agent must be satisfied that it will result in a fair and equitable competitive procurement. The Purchasing Agent shall have the authority to utilize any type of specification that best meets the needs of the County.

C. Types of Specifications. There are several types of specifications. The development, selection, and use of a particular type is dependent upon the situation, time, information available, and needs of the end user. Some types of specifications include but are not limited to the following:

1. Performance Specifications: Performance specifications (also known as

Functional Specifications) are preferred since they communicate what a product is to do, rather than how it is to be built.

2. Design Specifications: Design specifications employ dimensional and other physical requirements and concentrate on how a product is fabricated, rather than on what it should do. Design specifications are normally prepared by architects and engineers for construction or custom manufactured products.

3. Brand Name or Equal: When a specification mentions a manufacturer's

brand name or model number, it shall also include the words, "or equal." In this regard, "or equal" is interpreted to mean "substantially equal and capable of performing the essential functions of the referenced brand name or model." Identify in the requisition any specific features of the referenced brand that must be met.

D. Scope of Work for Services: The scope of work should include general

requirements describing the contractor’s responsibility for providing specified goods or services. The scope of work should include specifics identifying the criteria, limitations, and parameters for the services, and describe the good(s) expected.

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Section 4. Methods of Procurement

All methods of procurement shall be conducted using standard formats or templates established by the Division of Procurement and approved as to form by the County Attorney.

A. Competitive Sealed Bidding is a method of acquiring goods, services, and construction valued at $200,000 or greater. The award is made to the lowest responsive and responsible bidder, based solely on the response to the criteria set forth in the Invitation for Bid (IFB). Requirements of Competitive Sealed Bidding include the following:

1. Issuance of a written IFB containing or incorporating by reference the

specifications and the contractual terms and conditions applicable to the purchase. Unless the County has provided for prequalification of bidders, the IFB will 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, a solicitation may be issued requesting the submission of unpriced offers to be followed by an IFB limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation

2. Public notice of the IFB at least ten days prior to the date set for receipt of bids by posting on the Division of Procurement website at www.loudoun.gov/procurement or other appropriate websites. Public notice may also be posted in a designated public area, or by publication in a newspaper of county wide circulation, or both. In addition, bids may be solicited directly from potential vendors;

3. Public opening and posting of all bids received;

4. Evaluation of bids based upon the requirements set forth in the IFB, which

may include special qualifications of potential vendors, 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;

5. Award to the lowest responsive and responsible bidder. Multiple awards

may be made when so specified in the IFB.

B. Competitive Negotiation is a method of procurement typically used when the specifications or scope of work for goods and services cannot be clearly defined, or when negotiation is advantageous, and contract award is based on evaluation criteria stated in the Request for Proposal (RFP). Requirements of Competitive Negotiation include the following:

1. Issuance of a written RFP indicating in general terms that which is sought

http://www.loudoun.gov/procurement

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to be procured, specifying the factors which will be used in evaluating the proposal, and containing or incorporating by reference the other applicable contractual terms and conditions, (including those which are not negotiable), including any unique capabilities, specifications, or qualifications which will be required of the contractor. In the event that a numerical scoring system will be used in the evaluation of proposals, the point values assigned to each of the evaluation criteria shall 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.

2. Public notice of the RFP at least ten days prior to the date set for receipt of

proposals by posting on the Division of Procurement website www.loudoun.gov/procurement or other appropriate websites. The public notice may also be posted by publication in a newspaper of county wide circulation. In addition, proposals may be posted in a designated public area or solicited directly from potential vendors.

3. Competitive Negotiation – Professional Services

a. Proposal Analysis Group.

When selecting a firm for professional services where the compensation for such professional services is estimated to exceed $80,000, the Purchasing Agent shall appoint a Proposal Analysis Group (PAG) to review and recommend those professional services firms that may be retained by the County. The PAG will be composed of a minimum of three County staff, excluding Procurement staff, as determined by the Purchasing Agent, or his designee, in cooperation with the appropriate agency(s) or department(s). PAG members may include, at times, non-staff individuals. Summary of PAG deliberations and records or votes taken shall be maintained for at least five years. Summaries shall detail pertinent reasons for committee recommendations and be available for review by the general public upon request and after award or notice of intent to award the Professional Services.

b. Selection, Negotiation, and Approval Process.

i. Selection of Professional Services: Where the cost is expected to exceed $80,000, the County 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. In addition, offerors shall be informed of any ranking criteria that will be


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used by the County in addition to the review of the professional competence of the offeror. The RFP shall not, however, request that offerors furnish estimates of man-hours or cost for services. Proprietary information from competing offerors shall not be disclosed to the public or to competitors but must be clearly identified by offerors as proprietary and confidential. At the discussion stage, discussions concerning non-binding estimates of total project costs, including, but not limited to, life-cycle costing, and where appropriate, non-binding estimates of the price for services may take place. For architectural or engineering services, offerors shall not be required to list any exceptions to proposed contractual terms and conditions, unless such terms and conditions are required by statute, regulations, or ordinance, until after the qualified offerors are ranked for negotiations.

ii. At the conclusion of the discussions outlined above, on the basis of evaluation factors published in the RFP and all information developed in the selection process to this point, the County 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 solely with the offeror ranked first. The Purchasing Agent, with the aid of the PAG, shall negotiate a proposed contract with the highest ranked qualified firm for the required professional services. The firm deemed to be the most qualified will be required to disclose its fee structure during negotiation. If a contract satisfactory and advantageous to the County 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 shall proceed, and so on until such a contract can be negotiated at a fair and reasonable price. Should the County 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. Notwithstanding the foregoing, if the terms and conditions for multiple awards are included in the RFP, the County may award contracts to more than one offeror.

iii. When selecting a firm for professional services where the compensation

for such professional services is estimated to exceed $500,000, the Purchasing Agent or designee, after review of the PAG recommendation, will recommend to the Finance/Government Operations and Economic Development Committee those professional services to be retained by the County. The proposed contracts shall be submitted to the Board of Supervisors for approval prior to final execution. Full and adequate explanation of the selection criteria and fee determination shall be presented with the contract in such form as

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required by the Board of Supervisors.

iv. All proposed contracts for professional services, where the compensation to be paid is less than $2,000,000, shall be approved by the Purchasing Agent or designee.

v. Multiphase professional services contracts satisfactory and

advantageous to the completion of large, phased, or long-term projects may be negotiated and awarded based on qualifications at 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. Prior to the procurement of any such contract, the County shall state the anticipated intended total scope of the project and determine in writing that the nature of the work is such that the best interests of the County require awarding the contract.

vi. Term contracts for architectural or professional engineering services

relating to multiple construction projects may be awarded by the County in accordance with § 2.2-4303.1 of the Code of Virginia (as amended).

4. Competitive Negotiation – Non-Professional Services

a. Proposal Analysis Group

i. When selecting a firm for non-professional services where the

compensation is estimated to exceed $200,000, the Purchasing Agent or designee shall appoint a PAG to recommend to the Purchasing Agent those non-professional services firms that are to be retained by the County. The PAG will be composed of a minimum of three County staff, excluding Procurement staff, as determined by the Purchasing Agent, or designee, in cooperation with the appropriate agency(s) or department(s). PAG members may include, at times, non-staff individuals.

ii. Summary of PAG deliberations and records or votes taken shall be

maintained or at least five (5) years. Summaries detail pertinent reasons for committee recommendations and will be available for review by the general public upon request and after award or notice of intent to award the Non-Professional Services.

iii. Any non-professional services procured through competitive

negotiation shall be evaluated based on at least 20 points allocated for cost, unless otherwise approved by the Finance/Government Services and Operations Committee.

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b. Selection, Negotiation, and Approval Process. 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 RFP, including price. In the case of a proposal for information technology, as defined in Virginia Code § 2.2-2006, the offeror shall not be required to state in a proposal any exceptions to any liability provisions in the RFP. Negotiations shall then be conducted with each of the offerors so selected. Offerors shall state any exceptions to any liability provisions in writing at the beginning of negotiations, and such exceptions shall be considered during negotiations. Price shall be considered but need not be the sole or primary determining factor. After negotiations have been conducted with each offeror so selected, the County shall select the offeror which, in its opinion, has made the best proposal and provides the best value, and shall award the contract to that offeror. When the terms and conditions of multiple awards are so stated in the RFP, awards may be made to more than one offeror. Should the County 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.

C. Small Purchase Procedure. Any purchase or lease of goods, non-professional

services, and non-transportation-related construction, when the estimated aggregate cost, or the sum of all phases, is not expected to exceed $200,000; transportation-related construction, if the aggregate or sum of all phases is not expected to exceed $25,000; or for single or term contracts for professional services where the estimated cost is less than $80,000; shall be deemed a small purchase and not subject to the rules governing the formal competitive sealed bidding or competitive negotiation process. However, nothing herein shall prohibit the use of a formal solicitation process when the Purchasing Agents deems it to be in the best interest of the County. Where practicable, the Purchasing Agent or designee may solicit within the local vendor community.

Any procurement of single or term contracts for goods, non-professional services, and non-transportation-related construction not expected to exceed $200,000 (including renewal options); transportation-related construction not exceeding $25,000; and professional services contracts not exceeding $80,000; may be made in accordance with the following small purchase procedures; provided, however that procurement requirements shall not be artificially divided so as to constitute a small purchase under this policy. The level of competition required is determined based on the total value of the contract, as follows: 1. Up to and including $10,000 – Delegated to department or agency Heads

after completion of training and as outlined in the Delegated Purchasing

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Authority Agreement with the Department Head. Receipt of one (1) written quote (or proposal for professional services) is required.

2. Over $10,000 – up to but not exceeding $100,000 for goods and non-

professional services (and up to $80,000 for professional services): Solicitation of three (3) informal written quotes (or proposals) from vendors is required.

3. Goods, non-professional services, and non-transportation-related

construction contracts over $100,000 and up to, but not exceeding, $200,000 require a written informal solicitation of a minimum of four (4) vendors.

4. The name and address of each vendor contacted for each small purchase,

the name of the individual providing the quote, the date, item description or service offered including the period (date(s) of service), FOB point, delivery date, payment terms and the amount of each quotation, and if the amount is based on a cooperative contract, the contract number of the jurisdiction, and expiration date of the quote if older than thirty days, shall be recorded and maintained as a public record. It is preferred that quotes be signed by an authorized company representative of the offeror. If multiple quotes are not obtained, a statement of the reasons why the quotations were not possible shall be recorded and maintained as a public record.

5. For goods, non-professional services, and construction contracts, award shall be made to the lowest responsive and responsible vendor based on total cost, or best value (for goods and non-professional services only) if specified in the request for quote.

6. For professional services, when more than one (1) proposal has been

received in response to the informal solicitation, the County shall negotiate with the vendor determined to be the most qualified, responsible, and suitable; cost shall not be the sole determining factor. If a satisfactory contract cannot be negotiated with such vendor, negotiations shall be undertaken with the second most qualified, responsible vendor, and so on until a satisfactory contract is agreed upon.

7. This small purchase procedure is intended to provide for competition

wherever practicable.

D. Cooperative Procurement. The County may participate in, sponsor, conduct, or administer a cooperative procurement agreement on behalf of or in conjunction with one or more other public bodies, public agencies or institutions, or localities of the several states, of the United States or its territories, or the District of Columbia, the U.S General Services Administration, the Metropolitan Council of Governments, or the Virginia Sheriff’s Association for the purpose of combining

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requirements to increase efficiency or reduce administrative expenses in the acquisition of goods and services. Except for contracts for architectural and engineering services and certain contracts for construction (per § 2.2-4304), a public body may purchase from another public body’s contract even if it did not participate in the request for proposal or invitation to bid, if the request for proposal or invitation to bid specified that the procurement was being conducted on behalf of other public bodies. Nothing herein shall prohibit the assessment or payment by direct or indirect means of any administrative fee that will allow for participation in any such arrangement. Any agency interested in utilizing a cooperative contract not already established with an active County contract number should send the contract and all associated documents in question to the Division of Procurement for review and determination.

1. To Review Cooperative Contract for County Eligibility

The Division of Procurement will review all contract documents to verify that contract is eligible for use. In order to correctly utilize a cooperative contract, the scope of services identified in the cooperative contract must be of similar size and scope to the County requirements. Caution must be exercised to prevent an overly broad interpretation of the base contract to “squeeze” non-contract goods or services into the procurement. Similarly, the contractor is prohibited from including non-contract items into the request to purchase from the contract. If contract is eligible for use, the Division of Procurement will follow the appropriate procedure to establish a contract.

2. To Establish a County Contract

Once the Division of Procurement makes the determination that the contract is eligible, staff will negotiate and award the contract based upon the Cooperative Procurement Checklist, the Division of Procurement’s Administrative Policies and Procedures, and the guidelines already set forth in the VPPA. Contracts other than one-time buys will be established as term contracts and a County contract number will be assigned. All cooperative contracts are subject to review and approval as to form by the County Attorney’s Office per the Code of Virginia.

3. To Utilize an Established County Contract

To place a valid order, issuance of a purchase order is required. The County contract number must be referenced in the Source Document field of the purchase order. Buyers with delegated authority should NOT issue an order against a cooperative contract that has not been reviewed and approved by the

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Division of Procurement. Doing so will result in a violation of delegated authority.

E. Emergency. In case of an emergency, a contract may be awarded without competitive sealed bidding or competitive negotiation; however, such procurement shall be made with such competition as is practical 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 appropriate contract or purchase order file. In addition, notice of the emergency purchase shall be posted on the Division of Procurement web site at www.loudoun.gov/procurement and other appropriate web sites and may be posted in a designated public area or published in a newspaper of general circulation on the day the County awards or announces its decision to award the contract, whichever occurs first. Emergency contracts expected to exceed $500,000 may be awarded by the County Administrator or designated Purchasing Agent without the prior approval of the Finance/Government Operations and Economic Development Committee or the Board of Supervisors; however, the purchase shall be reported to the Finance/Government Operations and Economic Development Committee at the first possible meeting. An emergency is defined as a threat to life or property or an unforeseen situation, which curtails or greatly diminishes an essential service, as determined by the County Administrator or designated Purchasing Agent. 1. If an emergency occurs during regular County business hours, the head of

the using agency or department shall immediately notify the Purchasing Agent who shall either purchase the required goods or services or authorize the agency or department head to do so.

2. If an emergency occurs at times other than regular County business hours, the using agency or department head may purchase the required goods or services directly. The agency or department head shall, when practical, secure competitive oral or written bids and order delivery to be made by the lowest responsive and responsible bidder. The agency or department head shall also, not later than the next regular County business day, submit to the Purchasing Agent a requisition, a tabulation of the bids received, if any, a copy of the delivery record and a brief explanation of the circumstances of the emergency.

3. The Purchasing Agent shall maintain a record of all emergency purchases

supporting the particular basis upon which the emergency purchase was made. Such records shall be available for public inspection during regular County business hours in the office of the Purchasing Agent as well as on the Division of Procurement web site at www.loudoun.gov/procurement. The Purchasing Agent shall report emergency purchases in excess of $500,000 to the Finance/Government Operations and Economic Development Committee at the first possible meeting after the emergency



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occurs.

F. Sole Source. 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. The written determination shall be included in the appropriate contract file or other records of the procurement. In addition, for sole source purchases, a written notice will be issued 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. The notice shall be posted on the Division of Procurement web site at www.loudoun.gov/procurement and other appropriate web sites and may be posted in a designated public area or published in a newspaper of general circulation on the day the County awards or announces its decision to award the contract, whichever occurs first. These posting requirements apply to any sole source purchases exceeding $200,000.

G. Reverse Auctioning. The purchase of goods or nonprofessional services, but not

construction or professional services, may be made by reverse auctioning. However, bulk purchases of commodities used in road and highway construction and maintenance, and aggregates shall not be made by reverse auctioning.

H. Public Private Education Facilities and Infrastructure. The Public-Private Education

Facilities and Infrastructure Act of 2002 (§ 56-575.1 et seq.) (PPEA) provides public entities an option for either approving an unsolicited proposal from a private entity or soliciting RFPs or IFBs from private entities. Such projects are exempt from the VPPA. The County shall follow procedures that are consistent with the principles of the PPEA and adopted by the Board of Supervisors.

I. Public Private Transportation Act of 1995. The Public Private Transportation Act

of 1995 (§§ 33.2-1800, et seq.) (PPTA) provides public entities an option for either approving an unsolicited proposal from a private entity or soliciting RFPs or IFBs from private entities. Such projects are exempt from the VPPA. The County shall follow procedures that are consistent with the principles of the PPTA and adopted by the Board of Supervisors.

Section 5. Exceptions to the Requirement for Competitive Procurement

The following are instances in which the County may enter into contracts without competitive sealed bidding or competitive negotiation:

A. Auction. Upon a written determination by the Purchasing Agent that the purchase of goods, products, or commodities from a public auction sale is in the best interests of the County, such items may be purchased at the auction, including online public auctions. The writing shall document the basis for this determination. However, bulk purchases of commodities used in road and highway construction and


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maintenance, and aggregates shall not be made by online public auctions.

B. Insurance / Electric Utility Services. As provided at § (A)(13) (as amended) of the Code of Virginia (as amended), the County may enter into contracts without competitive sealed bidding or competitive negotiation for 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 public body 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.

C. Insurance. Upon a written determination made in advance by the Purchasing Agent

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 in § 2.2-4302.2 of the Code of Virginia (as amended).

D. Litigation / Regulatory Proceedings. The County may enter into contracts without competition for (1) legal services; (2) expert witnesses; and, (3) other services associated with litigation or regulatory proceedings.

E. Public Assistance Programs. The County may procure goods or personal services,

without competition, for direct use by a recipient of County administered public assistance programs as defined by § 63.2-100 of the Code of Virginia (as amended), or the fuel assistance program, or community services board as defined in the 2005 Acts of Assembly, 716, cl.9, or any public body purchasing services under the Comprehensive Services Act for At-Risk Youth and Families (§ 2.2-5200 et seq.) (as amended) or the Virginia Juvenile Community Crime Control Act (§ 16.1-309.2 et seq.) (as amended) provided such good or service is delivered by a vendor upon specific instructions from the appropriate employee of the County. Contracts for the bulk procurement of goods and services for use of recipients shall not be exempted from the requirements of competitive procurement.

F. Remedial Plan. The purchase of goods and services when such purchases are made

under a remedial plan established by the County Administrator pursuant to § 15.2-965.1 of the Code of Virginia (as amended).

G. Workshops. The Purchasing Agent may enter into contracts without competition

for the purchase of goods or services which are produced or performed by persons or in schools or workshops under the supervision of the Virginia Department for the Visually Handicapped; or which are produced or performed by nonprofit sheltered workshops or other nonprofit organizations which offer transitional or supported employment services servicing the handicapped, provided that the goods

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or services can be purchased within ten percent of their fair market value, will be of acceptable quality and can be produced in sufficient quantities and within the time required.

H. Retirement Board Investments, Actuarial Services, Disability Determination

Services. The selection of services related to the management, purchase, or sale of authorized investments, actuarial services, and disability determination services shall be governed by the standard of care in § 51.1-124.30 of the Code of Virginia (as amended) and shall not be subject to the provisions of the VPPA.

I. Ballots and Elections Materials. The VPPA shall not apply to contracts for

equipment, software, services, the printing of ballots or statements of results, or other materials essential to the conduct of the election, except as stated in § 24.2-602 of the Code of Virginia (as amended). The provisions of Code of Virginia § 24.2-602 shall apply to such contracts.

J. Other Special Exemptions. Procurement for single or term contracts for goods and

services not expected to exceed $200,000 as approved by the Purchasing Agent, to include but not limited to: utilities, dues and membership fees, print subscription renewals, direct payments on behalf of clients, and performers.

Section 6. General Procurement Provisions

A. Competitive Solicitation Process.

1. The Purchasing Agent shall solicit bids/offers from all responsible prospective vendors who have registered with the County’s Supplier Registration System and in addition may solicit bids/offers from responsible prospective vendors who have registered their firm to be included on the Commonwealth of Virginia’s “eVA” central vendor registration system for all solicitations using the competitive sealed bidding and competitive negotiation methods of procurement. The eVA vendor registration system may also be used to identify bidders/offerors to be solicited for open market transactions. Other potential vendors may be solicited at the discretion of the Purchasing Agent.

2. The Purchasing Agent shall encourage an open and competitive solicitation

process and shall endeavor to obtain the maximum feasible degree of open competition on all purchase transactions using the competitive sealed bidding, competitive negotiation, or small purchasing methods of procurement. By submitting a bid or proposal each bidder/offeror guarantees that it has not been a party with other bidders/offerors to an agreement to bid or propose a fixed or uniform price. Violation of this implied guarantee shall render void the bid or offer. Any disclosure to or acquisition by a competitive bidder/offeror, in advance of the opening of the bids/offers, of the terms or conditions of the bid or offer submitted by

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another competitor shall render the entire proceedings void and shall require re-advertisement of the solicitation.

3. Unless otherwise provided in an IFB, 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 County 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.

4. Prospective contractors may be prequalified for particular types of supplies,

services, insurance, or construction. Consideration of bids or proposals may be limited to prequalified contractors. Prequalification procedures shall be established in writing and sufficiently in advance of their implementation to allow potential contractors a fair opportunity to complete the process.

5. Prospective contractors may be debarred from contracting for particular

types of goods, services, insurance, or construction, for specified periods of time. The debarment procedures are set forth under Article 2, Section 8.

6. Solicitations shall include procedures whereby comments concerning

specifications or other provisions in IFBs or RFPs can be received and considered prior to the time set for receipt of bids or proposals or award of the contract.

a. Withdrawal of bids by a bidder. A bidder for a public construction contract,

other than a contract for construction or maintenance of public highways, may withdraw its bid from consideration if the price bid was substantially lower than the other bids due solely to a mistake therein, 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 its 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 which 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.

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b. One of the following procedures for withdrawal of a bid shall be selected by the County and stated in the advertisement for bids:

i. The bidder shall give notice in writing of its claim of right to withdraw

its bid within two (2) business days after the conclusion of the bid opening procedure and shall submit original work papers with such notice; or

ii. Where the public body opens the bid one day following the time fixed

for submission of bids, the bidder shall submit to the public body or designated official its original work papers, documents, and materials used in the preparation of the bid at or prior to the time fixed for the opening of bids. The work papers shall be delivered by the bidder in person or by registered mail.

iii. The bidder shall have two (2) hours after the opening of bids within

which to claim in writing any mistake as defined herein and withdraw his bid. The contract shall not be awarded by the public body until the two (2) hour period has elapsed. Under these procedures, the mistake shall be proved only from the original work papers, documents, and materials delivered as required herein. The work papers, documents, and materials submitted by the bidder shall, at the bidder’s request, be considered trade secrets or proprietary information subject to the conditions of §2.2- 4342(F).

c. A bidder for a contract other than construction may request withdrawal of

its bid as follows:

i. Requests for withdrawal of bids prior to opening of such bids shall be transmitted to the Purchasing Agent’s office in writing.

ii. Requests for withdrawal of bids after opening of such bids but prior to

award shall be transmitted to the Purchasing Agent, in writing, accompanied by, if requested by the Purchasing Agent, full documentation supporting the request. If the request is based on a claim of error, documentation must show the basis of the error. Such documentation may take the form of supplier quotations, vendor work sheets, etc. If bid bonds were tendered with the bid, the County may exercise its right of collection.

iii. Work papers, documents, and materials submitted in support of a

withdrawal of bids may be considered as trade secrets or proprietary information and must be identified as such when submitted by the bidder or offeror.

d. The public body shall notify the bidder in writing within five days of its

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decision regarding the bidder’s request to withdraw its bid. If the public body denies the withdrawal of a bid under the provisions of this section, it shall state in such notice 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. At the same time that the notice is provided, the public body shall return all work papers and copies thereof that have been submitted by bidder.

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. No bid may be withdrawn under this paragraph 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 five percent.

g. If a bid is withdrawn under the authority of this paragraph, the lowest

remaining bid shall be deemed to be the low bid.

B. Contract Award Process.

The Purchasing Agent or designee shall have the authority to waive informalities in bids, in whole or in part, or reject all bids, when in his judgment the public interest is best served. If all bids are for the same total amount or unit price (including authorized discounts and delivery times) and if the public interest will not permit the delay of re-advertisement for bids, the Purchasing Agent or designee is authorized to award the contract to the resident Loudoun County tie bidder whose firm has its principal place of business in the County, or if none, to the resident Virginia tie bidder, or if none, to one of the tie bidders by drawing lots in public; or the Purchasing Agent may purchase the goods or services in the open market except that the price paid shall not exceed the lowest contract bid price submitted for the same goods or services.

1. The Purchasing Agent or designee shall be responsible for determining the

responsibility of a bidder. In determining responsibility, the following criteria will be considered:

a. The ability, capacity and skill of the bidder to perform the contract or

provide the service required;

b. Whether the bidder can perform the contract or provide the service promptly, r within the time specified, without delay or interference;

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c. The quality of performance of previous contracts or services;

d. The previous and existing compliance by the bidder with laws and ordinances relating to the contract or services;

e. The sufficiency of the financial resources and ability of the bidder to

perform the contract or provide the service; f. The quality, availability, and adaptability of the goods or services to the

particular use required;

g. The ability of the bidder to provide future maintenance and service for the use of the subject of the contract;

h. Whether the bidder is in arrears to the County on debt or contract or is a

defaulter on surety to the County or whether the bidder's County taxes or assessments are delinquent; and

i. Such other information as may be secured by the Purchasing Agent having

a bearing on the decision to award the contract. If an apparent low bidder is not awarded a contract for reasons of nonresponsibility, the Purchasing Agent shall so notify that bidder and shall have recorded the reasons in the contract file.

2. All contracts shall be approved as to form by the County Attorney or other

qualified attorney and a copy of each long-term contract shall be filed with the Chief Financial Officer of the County.

3. Unless canceled or rejected or allowed to be withdrawn, a responsive bid

from the lowest responsible bidder shall be accepted as submitted, except that if the responsive bid from the lowest responsible bidder exceeds available funds, the County may negotiate with the apparent low bidder to obtain a contract price within available funds.

4. A public contract may include provisions for modification of the contract

during performance, but no fixed-price non-construction contract in excess of $500,000 may have a single or cumulative increase of more than twenty-five percent (25%) of the original contract price, without the advance written approval of the Purchasing Agent. In no event may the amount of any contract, without adequate consideration, be increased for any purpose, including, but not limited to, relief of an offeror from the consequences of an error in its bid or offer.

C. Contracts over $10,000.00. Every contract over $10,000 awarded through

competitive sealed bidding or competitive negotiation shall contain the following:

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1. Drug Free Work Place. During the performance of a contract, the contractor agrees to (i) provide a drug-free workplace for the contractor's employees; (ii) post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in the contractor's workplace and specifying the actions that will be taken against employees for violations of such prohibition; (iii) state in all solicitations or advertisements for employees placed by or on behalf of the contractor that the contractor maintains a drug-free workplace; and (iv) include the provisions of the foregoing clauses in every subcontract of over $10,000, so that the provisions will be binding upon each subcontractor or vendor. For the purposes of this section, "drug-free workplace" means a site for the performance of work done in conjunction with a specific contract awarded to a contractor in accordance with this Resolution, the employees of whom are prohibited from engaging in the unlawful manufacture, sale, distribution, dispensation, possession or use of any controlled substance or marijuana during the performance of the contract.

2. Non Discrimination.

The County will not discriminate against a bidder or offeror because of race, color, religion, sex, national origin, age, disability, status as a service-disabled veteran or any other basis prohibited by state law relating to discrimination in employment in the performance of its procurement activity in accordance with the policy of the County’s Small and Minority Business Enterprise Program. Every effort shall be made to actively and diligently promote the procurement of facilities, supplies, and services from small, minority-owned and woman-owned businesses, and service-disabled veteran businesses in all aspects of procurement to the maximum extent feasible. Every contract shall include the following provisions:

a. During the performance of this contract, the contractor agrees as follows:

The contractor will not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, disability, service-disabled veteran 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.

b. 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.

c. Notices, advertisements and solicitations placed in accordance with federal

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law, rule or regulation shall be deemed sufficient for the purpose of meeting the requirements of this provision.

d. The contractor will include the provisions of paragraphs a, b, and c above

in every subcontract or purchase order of over $10,000, so that the provisions will be binding upon each subcontractor or vendor.

D. Disclosure of Information.

Virginia Freedom of Information Act §§ 2.2-3700 et seq. (as amended) and §2.2-4342 of the VPPA apply to contracts entered into by the County. Except as provided herein, 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, firm, or corporation, in accordance with the Virginia Freedom of Information Act 2.2-3700 et seq. (as amended) and §2.2-4342 of the VPPA.

1. Cost estimates relating to a proposed procurement transaction prepared by

or for a public body shall not be open to public inspection.

2. 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 County 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.

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 County decides not to accept any of the proposals and to reopen the contract. Otherwise, proposal records shall be open to the public inspection only after award of the contract, except as provided in 3 below.

3. Any inspection of procurement transaction records under this section shall be subject to reasonable restrictions to ensure the security and integrity of the records.

4. Trade secrets or proprietary information submitted by a bidder, offeror, or

contractor in connection with a procurement transaction or prequalification application submitted pursuant to Article 2, Section 4 D shall not be subject to the Virginia Freedom of Information Act; however, the bidder, offeror, or contractor shall comply with 2.2-4342(F) and (i) invoke the protections of this section prior to or upon submission of the data or other materials, (ii) identify the data or other materials to be protected, and (iii) state the reasons why protection is necessary. A bidder, offeror, or contractor shall not designate as trade secrets or proprietary information (a) an entire bid, proposal, or prequalification application; (b) any portion of a bid, proposal,

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or prequalification application that does not contain trade secrets or proprietary information; or (c) line item prices or total bid, proposal, or prequalification application prices.

5. Nothing contained herein shall be construed to require the County, when

procuring by competitive negotiation, to furnish a statement of the reasons why a particular proposal was not deemed to be the most advantageous to the County.

E. Bonds.

The County may, at the discretion of the Purchasing Agent or designee, require bid, payment, and performance bonds for contracts for goods or services if so provided in the IFB or RFP. 1. Bid Bonds. Except in cases of emergency, all bids or proposals for non-

transportation-related construction contracts in excess of $500,000 or transportation- related projects authorized under §§ 33.2-208 et seq., of the Code of Virginia that are in excess of $250,000 and partially or wholly funded by the Commonwealth shall be accompanied by a bid bond from a surety company selected by the bidder that 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 five percent (5%) of the amount bid.

No forfeiture under a bid bond shall exceed the lesser of:

a. the difference between the bid for which the bond was written and the next

low bid, or

b. the face amount of the bid bond.

Nothing in this section shall preclude the County from requiring bid bonds to accompany bids or proposals for construction contracts anticipated to be less than $500,000 for non-transportation-related projects or $250,000 for transportation-related projects authorized under §§ 33.2-208 et seq., of the Code of Virginia and partially or wholly funded by the Commonwealth. Prospective contractors for non-transportation construction projects between $100,000 and $500,000, where the bond requirements have been waived, must be prequalified (as provided herein).

2. Performance and Payment Bonds.

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a. Non-Construction Related. A Contractor awarded any resulting Contract for goods or services may be required to furnish to the County a performance bond equal to the total sum of the Contract amount conditioned upon the faithful performance of the Contract in strict conformity with the plans, terms, conditions, and specifications of the Contract.

b. Construction Related. Upon the award of any (i) public construction

contract exceeding $500,000 awarded to any prime contractor; (ii) construction contract exceeding $500,000 awarded to any prime contractor requiring the performance of labor or the furnishing of materials for buildings, structures or other improvements to real property owned or leased by a public body; (iii) construction contract exceeding $500,000 in which the performance of labor or the furnishing of materials will be paid with public funds; or (iv) transportation-related projects exceeding $350,000 that are partially or wholly funded by the Commonwealth, the contractor shall furnish to the public body the following bonds:

i. 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. For transportation-related projects authorized under §§ 33.2-208 et seq., such bond shall be in a form and amount satisfactory to the public body.

ii. A payment bond in the sum of the contract amount. The 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 furtherance of the work provided for in the contract, and shall be conditioned upon the prompt payment for all materials furnished or labor supplied or performed in the furtherance of the work. For transportation-related projects authorized under §§ 33.2-208 et seq., and partially or wholly funded by the Commonwealth, such bond shall be in a form and amount satisfactory to the public body.

"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. Each of the bonds shall be executed by one or more surety companies selected by the contractor that are authorized to do business in Virginia. Such bonds shall be payable to the Board of Supervisors for Loudoun County and filed with the County or a designated office or official. Nothing in this section shall preclude a public body from requiring payment or performance bonds for construction contracts below $500,000 for non-transportation-related projects or $350,000 for

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transportation- related projects authorized under §§ 33.2-208 et seq., and partially or wholly funded by the Commonwealth.

Nothing in this section shall preclude the 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 that are directly with the subcontractor for performing labor and furnishing materials in the prosecution of the work provided for in the subcontract.

3. Action on performance bond. No action against a surety on a performance

bond shall be brought unless within one (1) year after (i) completion of the contract, including the expiration of all warranties and guarantees, or (ii) discovery of the defect or breach of warranty that gave rise to the action.

4. Actions on payment bonds.

a. Any claimant who has a direct contractual relationship with the contractor

and 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 therefore before the expiration of ninety 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 but who has no contractual relationship, express or implied, with the contractor, may bring an action on the contractor's payment bond only if he has given written notice to the contractor within 90 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. 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. Any action on a payment bond must be brought within one (1) year after the day on which the person bringing such action last performed labor or last furnished or supplied materials.

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c. Any waiver of the right to sue on the payment bond required by this section shall be void unless it is in writing, signed by the person whose right is waived, and executed after such person has performed labor or furnished material in accordance with the contract documents.

5. Alternative forms of security:

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 County Attorney, a bidder may furnish a personal bond, property bond, or bank or savings institution'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 County equivalent to a corporate surety's bond.

Section 7. Contracts

"Public contract" means an agreement between the County and a nongovernmental source that is enforceable in a court of law (referred to as “contracts”). Contracts are generally utilized to acquire goods, services, insurance, equipment, construction, or sale of surplus property, and can only be executed by individuals who have contract execution authority. The Purchasing Agent or designee shall be authorized to utilize any type or form of contract that best meets the needs of the County as long as the form has been approved by the County Attorney.

All contracts and/or agreements for the purchase of goods or services shall be signed by

the Division of Procurement and approved as to form by the County Attorney.

A. Contracts 1. Purchase Order (“PO”) is the simplest contract form and is executed by the

Purchasing Agent or designee. A PO is issued upon receipt of a requisition received by the Division of Procurement. Department or agency heads or designees may issue a direct PO up to their delegated authority amount.

2. Contracts, Agreements, Service Agreements. These are more complex and

comprehensive than a PO and often arise in response to a RFP, IFB, or Request for Quotes. These contracts often include clauses incorporating scopes of work, contract terms, conditions, and compensation and are executed by both parties. Only designated personnel in the Division of Procurement are authorized to sign Contract, Agreements, and Services Agreements.

3. Contractor’s Proposed Contract is usually a form contract that is pre-printed

and submitted to the County for signature. Contractor submitted contracts, pre-printed or otherwise, must be provided to the Division of Procurement

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for review and comment and signature approval. The County prefers not to use contractor’s contracts and such use will be avoided when at all possible. When a contractor’s contract is used, the County’s addendum with supplemental terms and conditions must be included as a part of the agreement. Only designated personnel in the Division of Procurement are authorized to sign a Contractor’s Proposed Contract.

4. All contracts must include the County’s Terms and Conditions.

5. Contracts may not be signed by Department or agency personnel.

B. Change Orders, Contract Modifications, and Amendments

1. Any change in price or terms of a contract or PO shall be authorized only

by the Purchasing Agent or individual authorized by this Resolution after review of the circumstances and a determination that the change is authorized by the original solicitation. Any authorized change requires an amendment to or modification of the contract. A Request for Change Order or Amendment must be completed and approved before any change order or amendment is effective and funds obligated for any change. Department or agency personnel may be held personally liable for unauthorized changes which result in increased charges to the County.

2. Any request for change affecting price, quality, quantity, delivery, or cancellation requires a written explanation by the department or agency requesting the change, either on behalf of itself or the contractor. All change orders and amendments for goods or services other than construction, should be evaluated for contract validity and price reasonableness. No fixed-price contract may be increased by more than twenty-five percent (25%) single or cumulative, without authorization from the Finance/Government Services and Operations Committee. Change orders that exceed the requester’s delegated authority and all contract modifications and amendments require the Purchasing Agent’s or designee’s review and approval. No County personnel shall notify a contractor that a change is approved until authorized by the appropriate Procurement Officer.

C. Contract Pricing by Contract Type

Contract pricing includes the method by which payment will be made to contractors. The Purchasing Agent or designee shall be authorized to select the most advantageous method of payment for the County. The following are example of major compensations methods. The County is not limited to use of these methods.

1. Firm Fixed Price. This type of contract and pricing arrangement will

prescribe the type and extent of required administrative efforts. The firm fixed price contract type is usually less costly to administer. It typically

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requires proper receiving and verification of the contract price or lump sum amount.

2. Cost Type Contract. This type of contract is where the vendor is reimbursed for cost expenditures. Generally, governmental agencies use a variation of this contract allowing for a fixed fee or administration fee which provides the vendor a profit margin. There are several other varieties of cost contracts.

3. Time and Materials Contracts. It is essential that billed costs be analyzed

(and challenged when appropriate) prior to their approval for payment because there is usually no incentive for contractors to contain costs when using this type of contract. The County has an obligation to verify the legitimacy and accuracy of any costs submitted for reimbursement. When a time and materials agreement is used, the County must request a detailed job estimate and evaluate the reasonableness of its cost elements before authorizing the work to be performed. If it is determined that the estimate is not reasonable or in accordance with the terms of the contract, further negotiations or the solicitation of additional estimates should be considered. Invoices should specify the amount and type of labor that is contained in the contract with the associated rates and the material costs so that verification of contract terms and pricing can be accomplished. The material costs should be supported with documentation as required in the contract (i.e., price list or invoiced cost).

4. Revenue Contracts. Certain agencies and institutions possess statutory

authorization to generate revenue. Service contracts for the management of cash operations (e.g., food services, canteen) commonly permits agencies and institutions to share in the revenues these activities generate rather than require any expenditure of funds. Commissions should normally be based as a percentage of gross receipts, and there should be some incentive for the contractor to contain costs. It is imperative that agencies have some ability to verify gross sales under agreements of this type. Consideration should be given to consulting with internal auditors for administrative suggestions and/or requesting an annual audit. In addition, the disposition of any purchased capital equipment at termination, and additions to real property during the terms of the agreement should also be addressed in the contract.

D. Use of Digital or Electronic Signatures.

1. Digital or electronic signatures may be permitted by the Purchasing Agent

for contracts, modifications, amendments, renewals, task orders, and any other contract document in accordance with the provisions of this policy and any applicable law. The digital or electronic signature shall have the full force and effect of a manual signature.

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2. The Division of Procurement will maintain all email and/or fax communications related to digital electronic signatures in their original form.

Section 8. Contract Administration

Contract administration begins after award of the contract and includes all actions taken by the County relative to a specific contract after award. Its purpose is to assure that the contractor’s and County’s total performance is in accordance with the contractual agreement. The integrity of the public procurement process demands that goods or services be furnished, received, invoiced, and paid as specified in the contract. The Division of Procurement will assemble and maintain a master list of all County term contracts to include the initial period and number of renewals.

After issuance of a formal contract award document, generally resulting from an RFP or

IFB, the Division of Procurement will designate a Contract Administrator, in writing, where deemed appropriate. The Contract Administrator shall be responsible for ensuring that the goods or services are provided in accordance with the terms of the contract. All Contract Administrators shall have taken the Contract Administration training prior to administering any contract. All vendor noncompliance shall be reported on a Vendor Complaint Form and submitted to the contractor with a copy to Division of Procurement.

A. Planning and Checklists

Contract administration planning should occur during the pre-award phase. All purchases should encompass some post-award administrative efforts--with the degree of administrative effort determined by evaluating purchase complexity, value, delivery or performance schedule, commodity or service type, and risks to the County. A Contract Administration Action Plan (“CAAP”) should be developed by the Contract Administrator for each contract that requires multiple or scheduled actions by the contractor during the contract period. The CAAP, usually a checklist or chart, is developed directly from the contract by extracting specific requirements, scheduled delivery dates, start-up and completion dates, as well as other related items such as performance guarantees (e.g., bonds, certificates of insurance, catalogs, copies of warranties, volume reports, as-built drawings, maintenance manuals, parts lists, maintenance, scheduled testing, etc.). These actions are essential if the Contract Administrator is to ensure that the contractor fulfills its obligations under the contract. Successful service contract administration usually involves a team approach with specific administrative tasks delegated to end-users or those who can closely monitor contract performance. The proposed Contract Administrator or end user and the Procurement Officer should work together in establishing administrative requirements and tasks for the CAAP while developing the solicitation.

B. Contract Administrator

The Contract Administrator should generally be the end user of the item purchased or service provided under the contract or one who has a vested interest in the procurement. The Contract Administrator will be responsible for confirming the

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contractor’s adherence to all contract specifications. When applicable, the Procurement Officer will delegate in writing, a specific individual to act as the Contract Administrator. The delegation will include the important aspects of the contract, distinguishing between the Contract Administrator’s authority and that which must remain a function of the Division of Procurement. Specific tasks assigned to the Contract Administrator should be outlined in the designation letter and may include acceptance of goods or services, approval of invoices, scheduling, and monitoring of project progress, coordination of resources, and favorable or critical feedback to the contractor and Procurement Officer.

The designated Contract Administrator shall be responsible for ensuring that they and any staff members having duties related to administering the contract, adhere to the policies set forth herein Article 5 Ethics in Public Contracting, and as described in the VPPA. Additionally, at a minimum, the Contract Administrator shall be responsible for: 1. the review and approval of any and all invoices submitted for payment by

the contractor for any and all services related to the performance of the contract;

2. that the contract in use is valid as related to the contract term dates and renewal clauses, when applicable;

3. ensuring that the contractor is providing timely goods and/or services in

accordance with the contract requirements;

4. ensuring that the contract file is complete;

5. ensuring that the contract renewal surveys are completed;

6. ensuring that:

a. the contract is renewed, or

b. specifications are provided to the Division of Procurement in a timely manner to allow for re-solicitation to avoid interruption of services, or

c. the goods or services currently contracted for are no longer necessary.

Failure and/or violations on the part of the designated Contract Administrator to adhere to and follow the guidelines specifically defined and related to their role and responsibilities as Contract Administrator may result in that individual being removed as the Contract Administrator, and depending on the nature of the violation, may result in further disciplinary action.

C. Procurement Records

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A record should be maintained for each purchase transaction, containing all the information necessary to understand the why, who, what, when, where, and how of the transaction. A file must be established for a procurement transaction which has reached the formal solicitation stage. It must contain at a minimum, as applicable, the description of requirements, sources solicited, a copy of the public notice, cancellation notices, the method of evaluation and award, a signed copy of the contract or purchase order, contractor performance reports submitted by the Contract Administrator, modifications or change orders, vendor complaint forms, cure letters, usage data such as release orders, and any other actions relating to the procurement. When the Division of Procurement has designated a Contract Administrator, the Contract Administrator shall also maintain a file containing, at a minimum, the designation letter, a complete copy of the contract, contract modifications, all related invoicing and payment records, vendor performance documentation, a copy of the completed contractor evaluation survey, signed renewal forms, and any reports required per the contract terms.

D. Delivery of Goods The policy of the County is to request all goods be shipped F.O.B. Destination, with all shipping charges pre-paid and allowed. F.O.B. Destination means that title passes when goods are received on site at the County as designated by the contract. Pre-paid and allowed means that all shipping charges are included in the quoted prices.

In lieu of F.O.B. Destination, the contract may require a different form of delivery by the contractor, such as: tailgate only, at dockside only, deliver on pallets, make inside delivery by floor and room number, deliver and install and remove all debris, or deliver at only certain specified hours. Clear delivery instructions should be provided in the PO or award documents. Instructions should specify any conditions or issues impacting delivery such as restrictive loading areas or limited elevator access. Delivery must be made by the date or within the period specified in the contract or the contractor may be considered to be in default. Receiving personnel and the Contract Administrator should have a clear understanding of the shipping terms, maintain a copy of the PO or award document, and shall be responsible for ensuring the vendor complies with the shipping terms stated in the PO or contract.

E. Inspections Receiving personnel or the Contract Administrator are responsible for inspecting and accepting goods or services purchased by their department or agency. Inspection is the close and critical examination of goods or services delivered to determine conformance with applicable contract requirements or specifications. Inspection includes confirming that:

1. Unless otherwise specifically ordered, the delivery consists of new and

unused merchandise.

2. Goods or services of the quality, quantity, grade, or standard specified in the

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PO or contract have been delivered.

3. The design, construction, ingredients, size, kind, type, make, color, style, etc., of the goods or services conform to the requirements of the PO or contract and where applicable, to the manufacturer’s published specifications.

4. The packaging and labeling, marking, or other means of identification meet contract specifications.

5. The goods or services comply with contract specification requirements in all essential respects, are in good condition, and delivery has been made in accordance with the terms and conditions of the PO or contract.

F. Acceptance

Acceptance of the delivery should be noted on a Receiving Report and a copy of the Receiving Report with noted acceptance should be attached to a copy of the PO and the packing slip, bill of lading, or similar delivery paperwork from the vendor. Timely and proper payment of invoices requires expedient review, acceptance of the delivery in accordance with the terms and conditions of the PO or contract, and timely submission of the receiving paperwork to accounts payable.

G. Rejection

1. Where Goods or Services Do Not Conform to PO or Contract. Rejection of goods or services is the responsibility of the authorized receiving personnel or Contract Administrator. Rejection may occur whenever the goods or services do not comply with contract requirements. In the event of a partial or total rejection, the receiving personnel or Contract Administrator shall immediately notify the contractor. The receiving personnel or Contract Administrator shall provide contractor the reasons for the rejection and may request prompt corrective action on the part of the contractor. The receiving personnel or Contract Administrator are not required, unless otherwise specified in the PO or contract, to provide contractor time to cure the rejection.

2. Additional Charges.

Rejection of deliveries by receiving personnel or Contract Administrator due to no fault of the contractor may be considered breach of contract, and restocking, storage and/or additional delivery charges may be assessed by the contractor. The value of these charges as well as any other damages that the contractor may incur should be identified and analyzed prior to making the decision to return goods.

H. Overshipments/Overruns.

Receiving personnel and Contract Administrator should not accept goods in excess of those specified on the PO or contract unless it is recognized as a custom of that industry (e.g., printing, cable, fabric), and is deemed acceptable by the Procurement

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Officer. If the receiving personnel or Contract Administrator will not accept underruns or overruns, it must be stated in the terms and conditions of the PO or contract document or be provided to the vendor via a solicitation in advance of the contract award. Overruns shall not exceed ten percent (10%) of the PO amount or $500, whichever is less, and are not to be processed through change orders. Prices for overruns shall not exceed the quoted base price per unit or the quoted price for additional units and whichever price is less will prevail. Prices for underruns will be calculated at the quoted base price per unit.

I. Damaged Shipments. It is the responsibility of the receiving personnel or Contract Administrator to promptly inspect deliveries for shipping damage at the receiving location. Concealed damage or latent defects should be reported to the contractor within seven (7) days of receipt and prior to removal from the point of delivery, if possible. If latent defects are found, the contractor is responsible for replacing the defective goods within the delivery time originally stated in the solicitation and is responsible for any resulting expenses incurred by the County. For any latent defects found after seven (7) days, receiving personnel or the Contract Administrator shall contact the Division of Procurement.

J. Invoice and Payment Processing.

Invoice processing is to be performed in accordance with the rules and regulations set forth in the VPPA at Article 4. To maintain good vendor relationships and a competitive environment, it is imperative that invoices be processed promptly and in accordance with the contract terms and conditions or as otherwise required by law. The County is required to pay for the delivered goods or services by the contractually established payment date. If no payment date has been established by contract, then payment is due forty-five (45) days after receipt of a proper invoice by the County or its agent responsible under the contract for approval of such invoices for the amount of payment due, or 45 days after the receipt of the goods or services, whichever is later. When a purchase requires performance over an extended period of time, the County should make arrangements to process partial payments upon receipt of evidence indicating that the goods or services have been received or performed.

When there is a defect, deviation, or impropriety in goods or services received, apart from damages that may arise in shipping, the County or its agent responsible under the contract for approval of such receipt of goods or services must notify the contractor within fifteen (15) days of the discovery of the defect, deviation, or impropriety if such defect or impropriety would prevent payment by the payment date. When there is a defect, deviation, or impropriety in an invoice, the County shall notify the contractor within fifteen (15) days of the defect or impropriety if such defect, deviation, or impropriety would prevent payment by the payment date. Examples of impropriety in the invoice include missing PO number, changes in unit price, extension errors, totaling errors, etc. The prompt payment date does not begin until such issues are corrected.

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K. Contract Renewal and Extension.

1. Renewal. A term contract may contain a renewal clause describing the conditions under which the contract may be renewed. However, no contract may be renewed and no additional consideration may be paid unless specifically provided for in the original contract. Often indices such as the Consumer Price Index (CPI) or Producer Price Index (PPI) are used as a benchmark in pricing renewal options and may assist in determining price reasonableness. Price increases should not be given automatically at renewal. The Division of Procurement may negotiate price increases up to the index, price decreases, or an amount otherwise described in the contract.

2. Extension. The Division of Procurement may extend the term of an existing

contract for services to allow for completion of any work undertaken but not completed during the original term of the contract.

L. Termination for Convenience.

Occasions may arise when a PO or contract may need to be terminated for the convenience of the County. The termination date and the extent of termination must be specified in writing to the contractor.

M. Cancellations of Purchase Orders and Contracts.

Cancellation of POs and contracts may only be authorized by the Division of Procurement. Cancellations shall be in writing via an appropriate change order document, PO, or contract. Contract Administrators do not have authority to cancel contracts. Any request for cancellation from County departments or agencies should include an explanation of the basis for the request. A contractor may request cancellation, and the County shall grant relief, if the contractor is prevented from specific performance including timely delivery, by an act of war, order of legal authority, act of God, or other unavoidable causes not attributed to the contractor’s fault or negligence.

N. Default.

A contractor is considered in default or breach if they fail to perform in accordance with the contract or PO (e.g., late delivery, nonconformance to specifications). The following factors should be considered prior to taking any action: 1. The specific reasons for such failure.

2. The period of time needed to obtain the goods or services from other sources

compared to the time delivery or performance could be accomplished by the delinquent contractor.

If the Division of Procurement determines that a contractor is in default, the Procurement Officer shall prepare a written Notice of Default and submit to the contractor, summarizing contractual non-compliance. If issues are not resolved in

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a reasonable time, the County department or agency shall notify the Division of Procurement, at which time the Division of Procurement may issue a Notice to Cure. Resolution of performance issues should start with the filing of the written Notice of Default.

O. Vendor Performance Complaints. Complaints and/or discrepancies on vendor performance should be reported as they occur using the Vendor Complaint Form. Vendors are required to respond to the complaint(s) within the time provided by the County. Failure to respond may result in cancellation of the contract, suspension, or debarment. These complaint reports are necessary in order for the Division of Procurement to develop vendor history, evaluate vendor performance, and, if required, to take appropriate and timely action.

P. Notice to Cure.

1. A Notice to Cure is sent when a contractor continues to fail to perform or deliver after receipt of a Notice of Default. It provides the contractor an additional period of time to correct or “cure” the deficiency. It also places the contractor on notice as to the consequences for failure to take the required corrective action. The Notice to Cure shall be given in writing and shall advise the contractor that continued non-delivery or non-conformance is a breach of the contract and, if the deficiency is not corrected within a stated number of days, the County may terminate the contract for default and hold the contractor liable for any excess costs.

2. If the contractor cures the problem, the County shall provide a Rescission

of Notice.

Q. Termination for Default and Re-procurement Costs. Upon the expiration of the time period stated in the Notice to Cure, if a satisfactory resolution has not been reached, the Contract Administrator shall notify the Division of Procurement. The Division of Procurement may then send the contractor a Termination for Default letter and take repurchase action. Termination for Default will inform the contractor that the contract is being terminated for default and that when the County repurchases the goods or services, any additional cost to the County will be billed to the contractor. Repurchase should be by competitive means in order to secure a fair and reasonable price, unless circumstances dictate otherwise. If the repurchase results in increased costs to the County, a letter shall be sent to the delinquent contractor itemizing the increased costs and demanding payment of the excess costs. Until the excess repayment costs have been received, the contractor shall be debarred from doing business with the County. In no case should the Termination for Default letter be held up to obtain repurchase costs since the contractor still has a valid contract until notification. If repayment has not been made by the end of the specified period of time, subsequent collection action shall be taken.

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In some instances, a contractor will notify the County that they refuse to or cannot deliver or complete performance on a contract. In those situations, it is not necessary to provide the Notice to Cure. A Notice of Default and Termination may still be required. And a Vendor Complaint Form should be submitted to the Division of Procurement for future determinations of responsibility, etc. Where contractor refusals are timely, such that repurchase would consist of awarding to the next lowest of the current slate of still valid bids allowing, the Division of Procurement may send a combined Default and Request For Payment letter itemizing the increase cost to the County. Occasionally, other contractual failures happen quickly enough to allow the same approach. In those instances, a Vendor Complaint Form is required to substantiate the action before Notice of Default and repayment cost.

R. Ineligibility, Debarment and Reinstatement. 1. Ineligibility or Disqualification

Any bidder, offeror, or contractor refused permission to participate, or disqualified from participation, in public contracts shall be notified in writing. Prior to the issuance of a written determination of disqualification or ineligibility, the public body shall (i) notify the bidder in writing of the results of the evaluation, (ii) disclose the factual support for the determination, and (iii) allow the bidder an opportunity to inspect any documents that relate to the determination, if so requested by the bidder within five business days after receipt of the notice.

2. Debarment Debarment is action taken by the County to exclude prospective contractors from contracting with the County for particular types of goods, services, supplies, insurance, or construction for specified periods of time. The County Administrator or designated Purchasing Agent may debar a prospective contractor for cause by written notification, which shall include the reasons for debarment, and the period it remains in effect. Debarment may be for up to three (3) years. Debarment does not relieve a contractor of responsibility for any existing obligations. Debarment of any bidder, offer, or contractor pursuant to this section shall be deemed to include the debarment of any successor corporation, partnership, firm, or other entity controlled or managed by any officer, director, partner, or controlling shareholder of the debarred bidder or contractor. During the period of debarment, a contractor will not be eligible to receive solicitations, contract awards, or have contracts renewed or extended. It is the contractor’s responsibility to request reinstatement at the end of the debarment period.

3. Purpose

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The purpose of both ineligibility and debarment is to protect the County from risks associated with awarding contracts to bidders, offerors, or contractors having exhibited an inability or unwillingness to fulfill contractual requirements, and to protect the County's interests and the integrity of the procurement process by preventing bidders, offerors, or contractors which have displayed improper conduct from participating in the County’s business for specific periods of time.

4. Any bidder, offeror, or contractor declared ineligible or debarred from participation in County procurement shall be notified in writing by the Purchasing Agent or designee. For more information regarding possible remedies, see Article 4, Section 1.

5. The Purchasing Agent shall have the authority debar a person or firm for

up to 3 years, from bidding on any contract for the causes stated below:

a. Conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;

b. Conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a County contractor;

c. Conviction under the state or federal antitrust statutes arising out of the

submission of bids or proposals;

d. Violation of contract provisions, as set forth below, of a character which is regarded by the Purchasing Agent to be so serious as to justify suspension or debarment action:

i. failure without good cause to perform in accordance with the

specifications or within the time limit provided in the contract; or

ii. a recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts, provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for suspension or debarment;

iii. Any other cause the Purchasing Agent determines to be so serious and

compelling as to affect responsibility as a contractor, such as debarment by another governmental entity for any cause listed herein, or because of prior reprimands;

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iv. The contractor has abandoned performance or been terminated for

default on any other Loudoun County project;

v. The contractor is in default on any surety bond or written guarantee on which Loudoun County or its Board of Supervisors is an obligee.

e. If, upon appeal, it is determined that the action taken by the Purchasing

Agent was arbitrary or capricious, or not in accordance with the Constitution of Virginia, statutes, or regulations, the sole relief available to the person or firm shall be restoration of eligibility. The person or firm may not institute legal action until all statutory requirements, including but not limited to Virginia Code § 2.2-4357, have been met.

D. Administration Efforts – Contract Types and Pricing Arrangements

The type of contract and pricing arrangement will prescribe the type and extent of required administrative efforts. The firm fixed-price contract type is usually less costly to administer. It typically requires proper receiving and verification of the contract price or lump sum amount. The following contract types have special administrative considerations and will be taken in to consideration with the development of a Contract Administrator’s CAAP:

1. Term Contracts. Effective administration of term agreements requires that the Division of Procurement or designated Contract Administrator maintain a record of the degree of activity against these contracts verifying the activity is within the scope of the contract and is paid in accordance with the contracted price. Contractor performance and contract expenditure activity should always be examined prior to the exercise of any renewal provision or re-solicitation.

2. Time and Materials Contracts. It is essential that billed costs be analyzed (and

challenged when appropriate) prior to approval for payment. There is little incentive for contractors to contain costs when using this type of contract. The County has an obligation to verify the legitimacy and accuracy of any costs submitted for reimbursement. When a time and materials agreement is used, the County must request a detailed job estimate and evaluate the reasonableness of its cost elements before authorizing the work to be performed. If it is determined that the estimate is not reasonable or in accordance with the terms of the contract, negotiations or the solicitation of additional estimates should be considered. Invoices should specify the amount and type of labor that is contained in the contract with the associated rates and the material costs so that verification of contract terms and pricing can be accomplished. The material costs should be supported with documentation as required in the contract.

3. Revenue Contracts. Service contracts for the management of cash operations

commonly permit the County to share in the revenues these activities generate rather than require any expenditure of funds. Commissions should normally be

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based as a percentage of gross receipts, and there should be some incentive for the contractor to contain costs. It is imperative that the County have some ability to verify gross sales under agreements of this type of contract.

4. Other.

The Purchasing Agent or designee shall be authorized to utilize any contract type that best meets the needs of the County.

Section 9. Compliance with Conditions on Federal Grants or Contract Where a procurement transaction involves the expenditure of federal assistance or contract

funds, the receipt of which is conditioned upon compliance with mandatory requirements in federal laws or regulations not in conformance with the policy of full and open competition, the Purchasing Agent may comply with the federal requirements only upon written determination by the County Administrator and/or Board that acceptance of the grant or contract funds under the applicable conditions is in the public interest. Such determination shall state the specific provisions of this section in conflict with the conditions of the grant or contract. Additional Terms and Conditions may be required to be incorporated in the public contract where Federal grants or funds are used. The County is required to comply with the Office of Management and Budget (OMB) Uniform Guidance procedures when making purchases using federal grand funds. Requirements related to the Uniform Guidance can be found here: https://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title02/2cfr200_main_02.tpl

Section 10. Audit by the County

All contracts and amendments entered into by negotiation, may include a provision permitting the County or its agent to have access to and the right to examine any books, documents, papers, and records of the contractor involving transactions related to the contract or compliance with any clauses thereunder, for a period of five (5) years after final payment. The contractor shall include these same provisions in all related subcontracts.

Section 11. HIPAA Compliance

The County has designated certain health care components as covered by the Health Insurance Portability and Accountability Act of 1996. The successful vendor may be designated a business associate pursuant to 45 CFR part 164.504(e) and 164.308 (b) of those agencies identified as health care components of the County, including the Loudoun-Falls Church Community Services Board, upon award of contract. The successful vendor must adhere to all relevant federal, state, and local confidentiality and privacy laws, regulations, and contractual provisions of the Loudoun County Business Associate agreement. These laws and regulations include, but are not limited to: (1) HIPAA – 42 USC 201, et seq., and 45 CFR Parts 160 and 164; and (2) Code of Virginia – Title 32.1, Health, §32.1-1 et seq. The vendor shall have in place appropriate administrative, technical, and physical safeguards to ensure the privacy and confidentiality of protected health information.

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Section 12. Immigration Reform and Control Act Compliance

The County shall provide in every written contract that the contractor does not, and shall not during the performance of the contract for goods and services in the Commonwealth, knowingly employ an unauthorized alien as defined in the federal Immigration Reform and Control Act of 1986.

Section 13. Authority to Transact Business in Virginia

A. Proof of Authority to Transact Business A bidder/offeror organized or authorized to transact business in the

Commonwealth pursuant to Title 13.1 or Title 50 of the Code of Virginia shall include in its bid or proposal the identification number issued to it by the State Corporation Commission. Any offeror that is not required to be authorized to transact business in the Commonwealth as a foreign business entity under Title 13.1 or Title 50 of the Code of Virginia or as otherwise required by law shall include in its bid or proposal a statement describing why the offeror is not required to be so authorized. Any offeror described herein that fails to provide the required information may have their bid or proposal rejected and may not receive an award unless a waiver of this requirement and the administrative policies and procedures established to implement this section is granted by the Purchasing Agent.

B. Maintaining Authority during Contract Term A Contractor organized as a stock or nonstock corporation, limited liability

company, business trust, or limited partnership or registered as a registered limited liability partnership shall be authorized to transact business in the Commonwealth as a domestic or foreign business entity if so required by Title 13.1 or Title 50 of the Code of Virginia or as otherwise required by law. Any business entity described herein that enters into a Contract with the County pursuant to the Virginia Public Procurement Act 2.2-4300 et seq. shall not allow its existence to lapse or its certificate of authority or registration to transact business in the Commonwealth, if so required under Title 13.1 or Title 50 of the Code of Virginia, to be revoked or cancelled at any time during the term of the Contract. The County may void any Contract with a business entity if the business entity fails to remain in compliance with the provisions of this section.

Section 14. Standardization

Standardization of specific goods and/or services may be used to justify and document designation of a single source, proprietary components, goods and/or services, quality control, inventory reduction, and/or procurement history where estimated use shows repetitive procurement.

A. The requisitioning agency shall provide justification for standardization requests

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to the Division of Procurement.

1. Written Justification: All requests for the standardization of goods and/or services must be justified in writing, describing the justification criteria and summarizing any analysis performed or to be performed. The department head of the requesting agency must approve the request.

2. Justification Criteria: The factors that shall be considered in determining to standardize on a single brand or trade name include:

a. Repair and maintenance costs would be minimized.

b. User personnel training would be facilitated.

c. Supplies or spare parts would be minimized.

d. Modifications to existing equipment would be minimized or made

unnecessary.

e. Requirements for repair and maintenance personnel would be minimized.

f. Proper operation of a function or program requires single brand or trade name supplies or equipment to be compatible with existing supplies or equipment.

g. Overall purchase or operational costs would be minimized.

h. Other factors that can be objectively documented.

3. Approval Authority: If after determining the request for standardization is justified, the Purchasing Agent will provide authorization for approval.

B. The Division of Procurement will determine the appropriate method of procurement

for purchasing the standardized good or service, including, but not limited to IFB, RFP, or Sole Source.

C. The Division of Procurement will review the requirement for standardization of

specified items and/or services periodically to determine if revision or modification is required.

Section 15. Qualified Products List

A Qualified Products List results in a specification developed by evaluating brands and models of various manufacturers of an item and listing those determined to be acceptable as eligible to be offered on an Invitation for Bid.

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A. Use. A qualified products list may be developed with the approval of the Purchasing Agent when testing or examination of the supplies or major repair items prior to issuance of the solicitation is desirable or necessary in order to best satisfy any mandated requirements.

B. Comments, Final Approval, Revisions, and Cancellation. Comments on final approval of, and revisions to the proposed criteria and methodology for establishing and maintaining a qualified products list, and the cancellation thereof, shall be made to the Purchasing Agent.

C. Solicitation 1. When developing a qualified products list, a representative group of

potential suppliers shall be solicited in writing to submit products for testing and examination to determine acceptability for inclusion on a qualified products list. Any potential supplier, even though not solicited, may offer its products for consideration.

2. Inclusion on a qualified products list shall be based on results of tests or examinations conducted in accordance with prior published requirements.

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Article 3. CONSTRUCTION CONTRACTING

Section 1. Authority

The Purchasing Agent shall be responsible for the procurement of architectural, engineering and related consultant services for construction projects and the contracting for construction projects for the County. The Purchasing Agent shall be authorized to utilize the most advantageous method of contracting and the appropriate methods of procurement subject to the requirements of the VPPA and other polices of the County.

The County Administrator or designated Purchasing Agent may conduct a prequalification

process for construction contracts in accordance with § 2.2-4317 of the VPPA.

Section 2. Definitions

A. “Construction” shall mean building, altering, repairing, improving or demolishing any structure, building, highway, road, drainage, or sanitary facility, and any draining, dredging, excavation, grading, or similar work upon real property.

B. “Construction management contract” shall mean a contract in which a party is

retained by the owner to coordinate and administer contracts for construction services for the benefit of the owner, and may also include, if provided in the contract, the furnishing of construction services to the owner.

C. “Design-build contract” shall mean a contract between a public body and another

party in which the party contracting with the public body agrees to both design and build the structure, roadway, or other item specified in the contract.

D. “PPEA” shall mean the Public-Private Education Facilities and Infrastructure Act

passed in 2002 by the General Assembly to allow agencies, institutions, and localities to form partnerships with the private sector. Through these partnerships, the public and private sectors work together to complete major projects to serve the County’s interest.

E. “PPTA” shall mean the Public-Private Transportation Act passed in 1995 by the

General Assembly to allow agencies, institutions, and localities to form partnerships with the private sector for transportation related projects. Through these partnerships, the public and private sectors work together to complete major projects to serve the County’s interest.

Section 3. Procurement Policies

A. Construction may be procured only by competitive sealed bidding, except that competitive negotiation may be used in the following instances:

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1. By any public body on a fixed price design-build basis or construction

management basis as provided in Chapter 43.1 (§§ 2.2- 4378 et seq.); or

2. By any public body for the construction of highways and any draining, dredging, excavation, grading, or similar work upon real property upon a determination made in advance by the public body 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.

B. No contract for the construction of any building or for an addition to or improvement of an existing building for which state funds of not more than $50,000 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 bidding or competitive negotiation as provided in this Resolution and law. The procedure for the advertising for bids and letting of the contract shall conform to the VPPA.

C. A contract for architectural or professional engineering services relating to

construction projects may be negotiated for multiple projects provided (i) the projects require similar experience and expertise, (ii) the nature of the projects is clearly identified in the Request for Proposal, and (iii) the contract term is limited to one year and may be renewable for four additional one (1) year terms at the option of the County. Under such contract, (a) the fair and reasonable prices, as negotiated, shall be used in determining the cost of each project performed, (b) the sum of all projects performed in one contract term shall not exceed $8 million, and (c) the project fee of any single project shall not exceed $2.5 million. Any unused amounts from the first contract term shall not be carried forward to the additional term(s). Competitive negotiations for such contracts may result in awards to more than one offeror provided (1) the Request for Proposal so states and (2) the County has established procedures for distributing multiple projects among the selected contractors during the contract term.

D. The County may enter into a contract for construction on a fixed price or not-to-

exceed price design-build or construction management basis consistent with this Resolution and Virginia Code §§ 2.2- 4378 et seq.

E. Delay Issues 1. No County construction contract shall 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 such delay is caused by acts or omissions of the County, its agents, or employees and due to causes within their control.

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The above shall not be construed to render void any provision of a public construction contract that:

a. Allows a public body to recover that portion of delay costs caused by the

acts or omissions of the contractor, or its subcontractors, agents or employees;

b. Requires notice of any delay by the party claiming the delay;

c. Provides for liquidated damages for delay; or

d. Provides for arbitration or any other procedure designed to settle contract disputes.

2. A contractor making a claim against the County for costs or damages due

to the alleged delaying of the contractor in the performance of its work under any County construction contract shall be liable to the County and shall pay the County for a percentage of all costs incurred by the County in investigating, analyzing, negotiating, litigating and arbitrating the claim, which percentage shall be equal to the percentage of the contractor's total delay claim which is determined through litigation or arbitration to be false or to have no basis in law or in fact.

3. A public body 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 County shall be equal to the percentage of the contractor’s total delay claim for which the County’s denial is determined through litigation or arbitration to have been made in bad faith.

Section 4. Methods of Procurement for Construction Services

The Purchasing Agent shall be authorized to utilize the most appropriate method of

procurement for construction. While the competitive sealed bid process remains the preferred method of construction procurement for the County, the County may enter into a contract for construction on a fixed price or not to exceed price on a design-build or construction management basis.

A. Competitive Sealed Bidding - The goods or services to be procured using this

method must be capable of being described so that bids submitted by potential contractors can be evaluated against the description in the IFB and an award made to the lowest responsive and responsible bidder.

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B. Competitive Negotiations – Construction Management/Design Build Services The County may enter into a contract for construction on a fixed price or not-to-exceed price design-build or construction management basis in accordance with this Resolution and Virginia Code §§ 2.2- 4378 et seq. 1. Prior to making a determination as to the use of construction management

or design-build for a specific construction project, the County shall have in its employ or under contract a licensed architect or engineer with professional competence appropriate to the project who shall (i) advise the county regarding the use of construction management or design-build for the project; and (ii) assist the county with the preparation of the Request for Proposal and evaluation of such proposals.

2. A written determination shall be made by the County that competitive sealed bidding is not practicable or fiscally advantageous, and such writing shall document the basis for the determination to utilize construction management or design-build. The determination shall be included in the Request for Qualifications and be maintained in the procurement file. .

3. The County may use the construction management method for a project, if

the following requirements are met:

a. The project cost is expected to exceed $10 million;

b. If the project cost is expected to be less than $10 million, (i) the project must be a complex project and (ii) the construction management method must be approved by the Board. The written approval of the Board shall be maintained in the procurement file;

c. Public notice of the Request for Qualifications is posted on the Virginia

Department of General Services central electronic procurement website, known as eVA, at least thirty (30) days prior to the date set for the receipt of qualification proposals;

d. The construction management contract is entered into no later than the

completion of the schematic phase of design, unless prohibited by authorization of funding restrictions;

e. Prior construction management or design-build experience or previous

experience with Virginia’s Department of General Services Bureau of Capital Outlay Management shall not be required as a prerequisite for award of a contract However, in the selection of a contractor, the County may consider the experience of each contractor on comparable projects;

f. Construction management contracts shall require that (i) no more than ten

(10) percent of the construction work, as measured by the cost of the work,

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be performed by the construction manager with its own forces and (ii) the remaining ninety (90) percent of the construction work, as measured by the cost of the work, be performed by subcontractors of the construction manager and procured by the construction manager by publically advertised, competitive sealed bidding to the maximum extent practicable;

g. The construction management procurement process shall be a two-step

competitive negotiation process;

h. Price is a critical basis or award of the contract.

4. The County shall use a two-step competitive negotiation process for design-build projects consistent with the standards established by the Division of Engineering and Buildings of the Virginia Department of General Services.

5. The County shall report by no later than November 1 of each year to the Director of the Virginia Department of General Services on all completed projects in excess of $2 million, which report shall include at a minimum (i) the procurement method utilized, (ii) the project budget, (iii) the actual project cost, (iv) the expected timeline, (v) the actual completion time, and (vi) any post-project issues.

C. Job Order Contracting 1. A job order contract may be awarded by a public body for multiple jobs,

provided (i) the jobs require similar experience and expertise, (ii) the nature of the jobs is clearly identified in the solicitation, and (iii) the contract is limited to a term of one year or when the cumulative total project fees reach the maximum authorized in this section, whichever occurs first. Contractors may be selected through either competitive sealed bidding or competitive negotiation.

2. Such contracts may be renewable for two additional one-year terms at the option of the County. The fair and reasonable prices as negotiated shall be used in determining the cost of each job performed, and the sum of all jobs performed in a one-year contract term shall not exceed $6 million. Individual job orders shall not exceed $500,000.

3. For the purposes of this section, any unused amounts from one contract term

shall not be carried forward to any additional term. 4. Order splitting with the intent of keeping a job order under the maximum dollar

amounts prescribed in subsection 2 is prohibited. 5. No job order shall be issued solely for the purpose of receiving professional

architectural or engineering services that constitute the practice of architecture or the practice of engineering as those terms are defined in § 54.1-400. However, professional architectural or engineering services may be included on a job order

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where such professional services (i) are incidental and directly related to the job, (ii) do not exceed $25,000 per job order, and (iii) do not exceed $75,000 per contract term.

6. Job Order Contracting shall not be used for construction, maintenance, or asset

management services for a highway, bridge, tunnel, or overpass.

Section 5. Construction Solicitation Procedures and Requirements

A. Prequalification. Prospective contractors may be prequalified for particular types of supplies, services, insurance, or construction, and consideration of bids or proposals limited to prequalified contractors. Any prequalification procedures shall be established in writing and sufficiently in advance of their implementation to allow potential contractors a fair opportunity to complete the process. The prequalification of prospective contractors for construction by the County shall be pursuant to a prequalification process for construction projects as outlined below.

1. The application form used in such process shall set forth the criteria upon

which the qualifications 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. The 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 as provided herein.

2. In all instances in which the County 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. Pre-qualification packages may be submitted by contractors at any time.

The County shall advise in writing, each contractor who submitted an application whether that contractor has been prequalified. In the event that a contractor is denied prequalification, the written notification to the contractor shall state the reasons for the denial of prequalification and the factual basis of such reasons. Contractor must have been pre-qualified for a minimum of forty-five days prior to the date established for submission of bids or proposals under the procurement of the contract for which the prequalification applies.

B. Appeal. A decision by the County denying prequalification under the provisions of

this subsection shall be final and conclusive unless the prospective contractor

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appeals the decision as provided herein. The County may deny prequalification to a contractor only if the County finds one of the following:

1. The contractor does not have sufficient financial ability to perform the

contract that would result 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 the County shall be sufficient to establish the financial ability of the contractor to perform the contract resulting from such procurement;

2. The contractor does not have appropriate experience to perform the

construction project in question; 3. The contractor or any officer, director or owner thereof has had judgments

entered against him within the past ten years for the breach of contracts for governmental or nongovernmental construction, including, but not limited to, design-build or construction management;

4. The contractor has been in substantial noncompliance with the terms and

conditions of prior construction contracts with the County without good cause. If the County has not contracted with a contractor in any prior construction contracts, the County 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 County may not utilize this provision to deny prequalification unless the facts underlying such substantial noncompliance were documented in writing in the prior construction file and such information relating thereto given to the contractor at that time, with the opportunity to respond;

5. The contractor or any officer, director, owner, project manager,

procurement manager, or chief financial official thereof has been convicted within the past ten years of a crime related to governmental or nongovernmental construction or contracting, including, but not limited to, violation of Article 6 of the Virginia Public Procurement Act (§2.2-4367 et seq.), the Virginia Governmental Frauds Act (§18.2-498.1 et seq.), Chapter 4.2 (§59.1-68.6 et seq.) of Title 59.1, or any substantially similar law of the United States or another state;

6. 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; and

7. The contractor failed to provide to the County in a timely manner any

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information requested by the County relevant to subdivisions (1) through (7) of this subsection.

C. Withdrawal of bids by a bidder. Please refer to Section 6 General Procurement

Provisions, Paragraph 7 Withdrawal of Bids by a Bidder.

D. Retainage. 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 ninety-five percent (95%) of the earned sum when payment is due, with not more than five percent (5%) being retained to be included in the final payment. Any subcontract for a public project which provides for similar progress payments shall be subject to the same limitations.

E. Bonds. Please refer to Section 6 General Procurement Provisions, Subsection E

Bonds.

F. Escrow Accounts.

1. The County, 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, sewer lines, and pumping stations, where portions of the contract price are to be retained, shall include an option in the bid or proposal for the contractor to use an escrow account procedure for utilization of the County's retainage funds by so indicating in the space provided in the bid or proposal documents and executing the Escrow Agreement form provided by the County. In the event the contractor elects to use the escrow account procedure, the Escrow Agreement form shall be executed and submitted to the County within fifteen calendar days after receipt of notification of contract award by the contractor.

2. The executed Escrow Agreement Form shall be submitted to the office

designated in the bid or proposal documents. If the Escrow Agreement Form is not submitted to the designated office within the fifteen calendar day period, the contractor shall forfeit his rights to the use of the Escrow account procedure.

3. In order to have retained funds paid to an escrow agent, the contractor, the

escrow agent, and the surety shall execute the 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 of Virginia.

4. This subsection shall not apply to public contracts for construction for

railroads, public transit systems, runways, dams, foundations, installation

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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.

5. Any such public contract for construction with the County which includes

payment of interest on retained funds, may include 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.

6. Any subcontract for such public project that provides for similar progress

payments shall be subject to the provisions of this section.

This subsection shall apply to contracts as provided in the Code of Virginia, §2.2-4334. G. Alternative Forms of Security 1. 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. 2. If approved by the County Attorney, a bidder may furnish a personal bond,

property bond, or bank or savings institution'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 public body equivalent to a corporate surety's bond.

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Article 4. BIDDER/CONTRACTOR REMEDIES

Section 1. Ineligibility

A. Any person or firm suspended or debarred from participation in County

procurement shall be notified in writing by the Purchasing Agent.

1. The Notice of Suspension shall state the reasons for the actions taken and such decision shall be final unless the person or firm appeals as provided in §2.2-4357.

2. The Notice of Debarment shall state the reasons for the actions taken and

the decision shall be final unless the person or firm appeals as provided in §2.2-4357.

3. Debarment of any bidder or contractor pursuant to this section shall be

deemed to include the debarment of any successor corporation, partnership, form or other entity controlled or managed by any officer, director, partner or controlling shareholder of the debarred bidder or contractor.

B. The Purchasing Agent shall have the authority to suspend or debar a person or firm

for up to three (3) years from bidding on any contract for the causes stated below: 1. Conviction for commission of a criminal offense as an incident to obtaining

or attempting to obtain a public or private contractor subcontract, or in the performance of such contract or subcontract;

2. Conviction under state or federal statutes of embezzlement, theft, forgery,

bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a County contractor;

3. Conviction under the state or federal antitrust statutes arising out of the

submission of bids or proposals; 4. Violation of contract provisions, as set forth below, of a character which is

regarded by the Purchasing Agent to be so serious as to justify suspension or debarment action;

5. Failure without good cause to perform in accordance with the specifications

or within the time limit provided in the contract; or

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6. A recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts, provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for suspension or debarment;

7. Any other cause the Purchasing Agent determines to be so serious and

compelling as to affect responsibility as a contractor, such as debarment by another governmental entity for any cause listed herein, or because of prior reprimands;

8. The contractor has abandoned performance or been terminated for default

on any other Loudoun County project; 9. The contractor is in default on any surety bond or written guarantee on

which Loudoun County is an obligee. 10. If, upon appeal, it is determined that the action taken by the Purchasing

Agent was arbitrary or capricious, or not in accordance with the Constitution of Virginia, statutes or regulations, the sole relief available to the person or firm shall be restoration of eligibility. The person or firm may not institute legal action until all statutory requirements, including but not limited to §2.2-4357, have been met.

Section 2. Appeal of Denial of Withdrawal of Bid

A. A decision denying withdrawal of a bid submitted by a bidder or offeror shall be

final and conclusive unless the bidder appeals the decision as provided in §2.2-4358.

B. If no bid bond was posted, a bidder refused withdrawal of bid under the provisions

herein, prior to appealing, shall deliver to the County a certified check or cash bond in the amount of the difference between the bid sought to be withdrawn and the next low bid. Such security shall be released only upon a final determination that the bidder was entitled to withdraw the bid.

C. If, upon appeal, it is determined that the decision refusing withdrawal of the bid

was not (i) an honest exercise of discretion, but rather was arbitrary or capricious or (ii) not in accordance with the Constitution of Virginia, applicable state law or regulation, or the terms or conditions of the Invitation to Bid, the sole relief shall be withdrawal of the bid.

Section 3. Appeal of Determination of Non-responsibility

A. Any bidder who, despite being the apparent low bidder, is determined not to be a

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responsible bidder for a particular County contract shall be notified in writing by the Purchasing Agent. Such notice shall state the basis for the determination, which shall be final unless the bidder appeals the decision as provided in §2.2-4359.

B. If, upon appeal of the Purchasing Agent’s decision, it is determined that the

decision of the Purchasing Agent was arbitrary or capricious and the award for the particular County contract in question has not been made, the sole relief available to the bidder shall be a finding that the bidder is a responsible bidder for the County contract in question. Where the award has been made, the County may declare the contract void upon a finding that this action is in the best interest of the public. Where a contract is declared void, the performing contractor shall be compensated for the cost of performance up to the time of such declaration. In no event shall the performing contractor be entitled to lost profits.

Section 4. Protest of Award or Decision to Award

A. Any bidder or offeror may protest the award or decision to award a contract by submitting a protest in writing to the Director of Finance and Procurement, or an official designated by the County of Loudoun, no later than ten (10) days after the award or the announcement of the decision to award, whichever occurs first. Any potential bidder or offeror on a contract negotiated on a sole source or emergency basis who desires to protest the award or decision to award such contract shall submit such protest in the same manner no later than ten days after posting or publication of the notice of such contract. However, if the protest of any actual or potential bidder or offeror depends in whole or in part upon information contained in public records pertaining to the procurement transaction which are subject to inspection under §2.2-4342, of the Code of Virginia, then the time within which the protest must be submitted shall expire ten days after those records are available for inspection by such bidder or offeror, or at such later time as provided herein. No protest shall lie for a claim that the selected bidder or offeror is not a responsible bidder or offeror. The written protest shall include the basis for the protest and the relief sought. The Director of Finance and Procurement shall issue a decision in writing within ten (10) days of the receipt of the protest stating the reasons for the action taken. This decision shall be final unless the bidder or offeror appeals by instituting legal action as provided in §2.2-4364 of the VPPA.

B. If, prior to award, it is determined that the decision to award is arbitrary or

capricious, then the sole relief shall be a finding to that effect. The Purchasing Agent shall cancel the proposed award or revise it to comply with the law. If, after an award, it is determined that an award of a contract was arbitrary or capricious, then the sole relief shall be as hereinafter provided. Where the award has been made but performance has not begun, the performance of the contract may be declared void by the County. Where the award has been made and performance has begun, the Purchasing Agent may declare the contract void upon a finding that this action is in the best interest of the County. Where a contract is declared void, the

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performing contractor shall be compensated for the cost of performance at the rate specified in the contract up to the time of such declaration. In no event shall the performing contractor be entitled to lost profits.

C. Pending final determination of a protest or appeal, the validity of a contract awarded

and accepted in good faith in accordance with this article shall not be affected by the fact that a protest or appeal has been filed.

D. An award need not be delayed for the period allowed a bidder or offeror to protest,

but in the event of a timely protest, no further action to award the contract will be taken unless there is a written determination that proceeding without delay is necessary to protect the public interest or unless the bid or offer would expire.

Section 5. Contractual Disputes

A. A Contractor shall give written notice to the Purchasing Agent of its intent to file a claim for money or other relief within ten (10) calendar days of the occurrence or the beginning of the work upon which the claim is to be based, or the rejection of Contractor’s Proposed Change Order (PCO).

B. The written claim shall be submitted to the Purchasing Agent no later than sixty

(60) days after final payment. If the claim is not disposed of by agreement, the Purchasing Agent shall reduce his or her decision to writing and mail or otherwise forward a copy thereof to the Contractor within thirty (30) days of receipt of the claim.

C. The Purchasing Agent’s decision shall be final unless the Contractor appeals

within thirty (30) days by submitting a written letter of appeal to the County Administrator, or designee. The County Administrator shall render a decision with sixty (60) days of receipt of the appeal. The decision of the County Administrator shall be final and conclusive unless the contractor appeals within six (6) months of the date of the final written decisions by instituting legal action as provided in §2.2-4364. A contractor may not institute legal action prior to receipt of the County’s decision on the claim, unless the public body fails to render such decision within the time specified.

Section 6. Legal Action

A. No bidder, offeror, potential bidder or offeror, or contractor shall institute any legal action

until all statutory requirements have been met and all administrative remedies have been exhausted.

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Article 5. ETHICS IN PROCUREMENT CONTRACTING

Section 1. General

A. This Article supplements, but does not supersede, other provisions of law including, but not limited to, the VPPA, the State and Local Government Conflict of Interests Act (§2.2-3100 et seq.), the Virginia Governmental Frauds Act (§18.2-498.1 et seq.), and Articles 2 (§18.2- 438 et seq.) and 3 (§18.2-446 et seq.) of Chapter 10 of Title 18.2. The provisions of this Article apply notwithstanding the fact that the conduct described may not constitute a violation of the State and Local Government Conflict of Interests Act.

B. No County employee having official responsibility for a procurement transaction

(except as may be specifically allowed by §2.2-3112) shall participate in that transaction on behalf of the County when the employee knows that:

1. The employee is contemporaneously employed by a bidder, offeror, or

contractor involved in the procurement transaction; or,

2. The employee, the employee's partner, or any member of the employee's immediate family holds a position with a bidder, offeror, or contractor such as an officer, director, trustee, partner, or the like, or is employed in a capacity involving personal and substantial participation in the procurement transaction, or owns or controls an interest of more than five percent; or,

3. The employee, the employee's partner, or any member of the employee's

immediate family has a pecuniary interest arising from the procurement transaction; or,

4. The employee, the employee's partner, or any member of the employee's

immediate family is negotiating or has an arrangement concerning prospective employment with a bidder, offeror, or contractor.

Section 2. Solicitation or Acceptance of Gifts

No County employee having official responsibility for a procurement transaction shall solicit, demand, accept or agree to accept from a bidder, offeror, contractor, or subcontractor any payment, loan, subscription, advance, deposit of money, services, or anything of more than nominal or minimal value, present or promised, unless consideration of substantially equal or greater value is exchanged. The County may recover the value of anything conveyed in violation of this section.

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Section 3. Disclosure of Subsequent Employment

No County employee or former County employee having official responsibility for procurement transactions shall accept employment with any bidder, offeror, or contractor with whom the County employee or former County employee dealt in an official capacity concerning procurement transactions for a period of one year from the cessation of employment by the County unless the County employee, or former County employee, provides written notification to the County prior to commencement of employment by that bidder, offeror, or contractor.

Section 4. Gifts

No bidder, offeror, contractor, or subcontractor shall confer upon any County employee having official responsibility for a procurement transaction any payment, loan, subscription, advance, deposit of money, services, or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is exchanged.

Section 5. Kickbacks

A. No contractor or subcontractor shall demand or receive from any of his suppliers or his subcontractors, as an inducement for the award of a subcontract or order, any payment, loan, subscription, advance, deposit of money, services or anything present or promised, unless consideration of substantially equal or greater value is exchanged.

B. No subcontractor or supplier shall make, or offer to make, kickbacks as described

in this section. C. No person shall demand or receive any payment, loan, subscription, advance,

deposit of money, services, or anything of value in return for an agreement not to compete on a County contract.

D. If a subcontractor or supplier makes a kickback or other prohibited payment as

described in this section, the amount thereof shall be conclusively presumed to have been included in the price of the subcontract or order and ultimately borne by the public body and will be recoverable from both the maker and recipient. Recovery from one offending party shall not preclude recovery from other offending parties.

Section 6. Solicitation Development

A. No person who, for compensation, prepares an invitation to bid or request for proposal for or on behalf of the County shall (i) submit a bid or proposal for that procurement or any portion thereof or (ii) disclose to any bidder or offeror information concerning the procurement which is not available to the public. However, the County may permit such person to submit a bid or proposal for that procurement or any portion thereof if the County determines that the exclusion of

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such person would limit the number of potential qualified bidders or offerors in a manner contrary to the best interests of the County.

Section 7. Purchase of Building Materials, etc., from Architect or Engineer Prohibited

A. No building materials, supplies or equipment for any building or structure constructed by or for the County shall be sold by or purchased from any person employed as an independent contractor by the County to furnish architectural or engineering services, but not construction, for such building or structure; or from any partnership, association or corporation in which such architect or engineer has a personal interest as defined in §2.2- 3101 of the Code of Virginia.

B. No building materials, supplies, or equipment for any building or structure

constructed by or for the County shall be sold by or purchased from any person who has provided or is currently providing design services specifying a sole source for such materials, supplies, or equipment to be used in such building or structure to the independent contractor employed by the County to furnish architectural or engineering services in which such person has a personal interest as defined in §2.2-3101 of the Code of Virginia.

C. The provisions of this Section shall not apply in the case of emergency.

Section 8. Certification of Compliance; Penalty for False Statement

A. The County may require County employees having official responsibility for procurement transactions in which they participated to annually submit for such transactions a written certification that they complied with the provisions of this section.

B. Any County employee required to submit a certification as provided in

subsection a. of this section who knowingly makes a false statement in such certification shall be punished as provided in §2.2-4377 of the Code of Virginia.

Section 9. Misrepresentations

No County employee having official responsibility for a procurement transaction shall knowingly falsify, conceal, or misrepresent a material fact; knowingly make any false, fictitious, or fraudulent statements or representations; or make or use any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry.

Section 10. Penalty for Violation

The penalty for violations of any of the provisions under Article 5 of this Resolution is provided in the Code of Virginia, §2.2-4377.

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Article 6. SUPPLY MANAGEMENT

Section 1. Excess and Surplus Property

A. The County Administrator or designee shall be responsible for:

1. Redistribution of serviceable excess personal property to include furnishings, office equipment, parts and material;

2. Disposal of surplus County personal property as applicable by law. Disposals will be evaluated in an effort to maximize financial returns to the County and/or minimize environmental impact; and,

3. Disposal of unclaimed property in the hands of the Sheriff’s Department in accordance with §15.2-1719 and the Codified Ordinances of Loudoun County, Virginia Section 228.04.

B. Departments shall notify the Department of General Services whenever they

possess County-owned personal property that is not being used or is not required for use by their department.

Section 2. Disposal Methods for Excess and Surplus Property

A. Division of Procurement facilitates sales with General Services. B. Division of Procurement may use any of the following methods to dispose of

surplus personal property:

1. Sealed bid – The surplus property is sold to the highest responsible and responsive bidder.

2. Auction.

3. Trade-In – The Procurement Division may negotiate a trade in allowance, however, agencies shall not use trade-in allowances to offset the cost of new or replacement assets.

4. Fixed Price Sale - Surplus personal property, including vehicles, may be sold at a nominal fee or given as donation to other local governments or Loudoun County Volunteer Fire or Rescue Companies.

C. The County Administrator or designee shall allow public library materials that are

discarded from their collections to be given to nonprofit organization that support library functions, including, but not limited to, friends of the library, library

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advisory boards, library foundations, library trusts and library boards of trustees.

Section 3. Other Provisions

The County Administrator or designee shall allow the purchase of hand guns to certain officer in accordance with Code of Virginia §59.1.148.3.

County employees and members of their immediate family are not eligible to acquire County property for personal use before such property has been declared surplus and has been made available to the general public.

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Article 7. PUBLIC-PRIVATE PARTNERSHIPS

Section 1. Public-Private Partnership Projects

Introduction A. The Public-Private Education Facilities and Infrastructure Act of 2002, Va. Code

§§ 56-575.1, et seq., (the “PPEA”) and the Public-Private Transportation Act of 1995, Va. Code §§33.2-1800, et seq., (the “PPTA”) (together, the “Acts”) grant the County of Loudoun (the “County”), a responsible public entity as defined in the Acts, the authority to create public-private partnerships for the development of a wide range of projects for public use if the County determines there is a public need for the project and that private involvement may provide the project to the public in a timely or cost-effective fashion. Individually negotiated comprehensive agreements between a private entity, as defined in the Acts, and the County will define the respective rights and obligations of the County and the private entity. Although guidance with regard to the application of the PPEA and PPTA is provided herein, it will be incumbent upon the County and all private entities to comply with the provisions of the PPEA or PPTA as applicable and as may be amended.

B. In order for a project to come under the PPEA or the PPTA, it must meet the definition of a "qualifying project" or qualifying transportation facility as defined in the applicable Act.

C. The Acts establish requirements that the County must adhere to when reviewing

and approving proposals received pursuant to the PPEA or the PPTA. In addition, the Acts specify the criteria that must be used to select a proposal and the contents of the comprehensive agreement detailing the relationship between the County and the private entity. Any proposal received or solicited by the County pursuant to either the PPEA or the PPTA will be reviewed in accordance with the provisions of the applicable Act and these regulations as they may apply.

D. The Board originally adopted the PPEA regulations effective July 1, 2003 and the PPTA regulations effective October 19, 2004. Therefore, in accordance with Board directive, the County will follow this policy to receive and evaluate any proposal submitted to the County under the provisions of the PPEA or the PPTA.

E. The County Administrator is authorized to designate a working group to be

responsible for evaluating proposals and negotiating the comprehensive agreement.

F. The individual designated to serve as the point of contact for implementation of procedures, to receive proposals submitted under the PPEA or the PPTA, and to respond to inquiries regarding the PPEA or the PPTA or this adopted policy shall be the Purchasing Agent.

https://law.lis.virginia.gov/vacodefull/title56/chapter22.1/

https://law.lis.virginia.gov/vacodefull/title33.2/chapter18/

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Section 2. General Provisions

A. Proposal Submission.

1. A proposal under either Act may be either solicited by the County or delivered by a private entity on an unsolicited basis. Proposers may be required to follow a two-part proposal submission process consisting of a conceptual phase and a detailed phase, as described herein.

2. The Acts allow private entities to include innovative financing methods, including the imposition of user fees or service payments, in a proposal. Such financing arrangements may include the issuance of debt instruments, equity, or other securities or obligations. Proposals may include, if applicable, financing by tax-exempt private activity bonds.

3. Proposals should be prepared simply and economically, providing a concise description of the proposer's capabilities to complete the proposed qualifying project and the benefits to be derived from the project by the County. Project benefits to be considered are those occurring during the construction, renovation, expansion, or improvement phase and during the life cycle of the project. Proposals also should include a comprehensive scope of work and a financial plan for the project, containing enough detail to allow an analysis by the County of the financial feasibility of the proposed project. The County may, at any time, require the proposer to provide additional information and clarification to the submission.

B. Affected Jurisdictions. The term “affected local jurisdiction” means any county, city or town in which all or a portion of a qualifying project or qualifying transportation facility is located, or, with respect to the PPTA, any other public entity directly affected by a qualifying transportation facility. Any private entity requesting approval from or submitting a conceptual or detailed proposal to the County must provide any other affected jurisdiction with a copy of the private entity's request or proposal by certified mail, express delivery, or hand delivery within five (5) business days of submission of the proposal to the County. Evidence of the delivery of the proposal to any other affected jurisdiction shall be provided to the County within five (5) business days of such delivery. Any affected jurisdiction shall have 60 days from the receipt of the request or proposal to submit written comments to the County and to indicate whether the proposed qualifying project is compatible with the jurisdiction's (i) comprehensive plan, (ii) infrastructure development plans, and (iii) capital improvements budget or other government spending plan. Comments received within the 60- day period shall be given consideration by the County, and no negative inference shall be drawn from the absence of comment by an affected jurisdiction. The County may begin or continue its evaluation of any such proposal during the 60- day period for the receipt of comments from other affected jurisdictions.

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C. Proposal Review Fee.

For unsolicited proposals and unsolicited competing proposals, the County will require an initial processing fee of $5,000 with an additional proposal fee of $10,000 to be charged should the project proceed beyond the initial review. The initial processing fee shall be submitted with the initial proposal or competing proposal. The County will refund any portion of fees paid in excess of its direct costs which include, but are not limited to, all staff costs, and outside consultants, financial advisors, engineers, and attorney’s fees, associated with evaluating the proposal. In the event either the initial processing fee of $5000 or the additional proposal fee of $10,000 is insufficient to cover all of the direct costs incurred by the County, the proposer shall pay such additional direct costs incurred by the County in reviewing the proposal.

D. Freedom of Information Act.

1. Generally, proposal documents submitted by private entities are subject to

the Virginia Freedom of Information Act (“FOIA”). In accordance with § 2.2-3705.6(11) of FOIA, such documents are releasable if requested, except to the extent that they relate to (i) confidential proprietary information submitted to the County under a promise of confidentiality or (ii) memoranda, working papers, or other records related to proposals if making public such records would adversely affect the financial interest of the County or the private entity or the bargaining position of either party.

2. Subsection 56-575.4 (G) of the PPEA and subsection 33.2-1803 (H) of the PPTA imposes an obligation on the County and any affected jurisdiction to protect confidential proprietary information submitted by a private entity or operator pursuant to 2.2- 3705.6 (11). When a private entity requests that the County not disclose information, the private entity must (i) invoke the exclusion when the data or materials are submitted to the County or before such submission, (ii) identify the data and materials for which protection from disclosure is sought, and (iii) state why the exclusion from disclosure is necessary. A private entity may request and receive a determination from the County as to the anticipated scope of protection prior to submitting the proposal. The County is authorized and obligated to protect only confidential proprietary information, and thus will not protect any portion of a proposal from disclosure if the entire proposal has been designated confidential by the proposer without reasonably differentiating between the proprietary and non-proprietary information contained therein.

3. Upon receipt of a request that designated portions of a proposal be protected

from disclosure as confidential and proprietary, the County shall determine whether such protection is appropriate under applicable law and, if appropriate, the scope of such appropriate protection, and shall communicate its determination to the proposer. If the determination

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regarding protection or the scope thereof differs from the proposer's request, then the County will afford the proposer a reasonable opportunity to clarify and justify its request. Upon a final determination by the County to afford less protection than requested by the proposer, the proposer will be afforded an opportunity to withdraw its proposal. A proposal so withdrawn shall be treated in the same manner as an unsolicited proposal not accepted for publication and conceptual-phase consideration as provided in Section 4(B)(1) below.

E. Use of Public Funds.

Virginia constitutional and statutory requirements and County ordinances and policies as they apply to appropriation and expenditure of public funds apply to any comprehensive agreement entered into under the Acts. Accordingly, the processes and procedural requirements associated with the expenditure or obligation of public funds shall be incorporated into planning for any PPEA or PPTA project or projects.

F. Proposals submitted in accordance with the requirements herein shall be posted by the County within ten (10) business days after acceptance such proposals by the Board. Posting shall be on the County’s website or by publication, in a newspaper of general circulation in the area in which the contract is to be performed with a summary of the proposal(s) and the location where copies of the proposal(s) are available for inspection. The County may also publish the notice in a newspaper of general circulation in the area in which the contract is to be performed A copy of the proposal shall also be made available for public inspection at the Division of Procurement.

G. Applicability of Other Laws. Nothing in the PPEA or PPTA shall affect the duty of the County to comply with all other applicable laws not in conflict with the PPEA or the PPTA. The applicability of the Virginia Public Procurement Act (the "VPPA") is as set forth in the PPEA and the PPTA.

Section 3. Solicited Proposals

A. The County may invite bids or proposals from private entities to develop, acquire, design, construct, improve, renovate, expand, equip, maintain or operate qualifying projects or qualifying transportation facilities. The County may use a two-part process consisting of a conceptual phase and a detailed phase. The County will set forth in the solicitation the format and supporting information that is required to be submitted, consistent with the provisions of the applicable Act.

B. The solicitation will specify, but not necessarily be limited to, information and documents that must accompany each proposal and the factors that will be used in evaluating the submitted proposals. The solicitation will be posted in such public areas as are normally used for posting of the County’s notices, including the County’s website. The solicitation will also contain or incorporate by reference

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other applicable terms and conditions, including any unique capabilities or qualifications that will be required of the private entities submitting proposals. Pre-proposal conferences may be held as deemed appropriate by the County.

Section 4. Unsolicited Proposals

A. The PPEA and the PPTA permit the County to receive and evaluate unsolicited proposals from private entities to acquire, design, construct, improve, renovate, expand, equip, maintain, or operate a qualifying project or a qualifying transportation facility. The County may publicize its needs and may encourage or notify interested parties to submit proposals subject to the terms and conditions of the PPEA or PPTA. When such proposals are received without issuance of a solicitation, the proposal shall be treated as an unsolicited proposal.

B. Decision to Accept and Consider Unsolicited Proposal; Notice: 1. Upon receipt of any unsolicited proposal or group of proposals and payment

of the required fee by the proposer or proposers, the County will determine whether to accept the unsolicited proposal for publication and conceptual-phase consideration. If the County determines not to accept the proposal and not proceed to publication and conceptual-phase consideration, it shall return the proposal, together with all fees and accompanying documentation, to the proposer(s).

2. If the County chooses to accept an unsolicited proposal for conceptual- phase consideration, it shall post a notice within ten (10) working days on its website or in a public area regularly used by the County for posting of public notices for a period of not less than forty-five (45) days. The County may also publish the same notice in one or more newspapers or periodicals of general circulation in the County to notify any parties that may be interested in submitting competing unsolicited proposals. Interested parties shall have forty-five (45) days, or such longer period as the County may deem appropriate due to the scope or complexity of the original proposal, from the date the notice is published to submit competing unsolicited proposals. The notice shall state that the County (i) has received and accepted an unsolicited proposal under the PPEA or PPTA, (ii) intends to evaluate the proposal, (iii) may negotiate an interim and/or comprehensive agreement with the proposer based on the proposal, and (iv) will accept for simultaneous consideration any competing proposals that comply with the procedures adopted by the County and the PPEA or PPTA. The notice also shall summarize the proposed qualifying project or qualifying transportation facility, and identify the proposed locations.

3. One copy of the unsolicited proposal shall be available for public inspection.

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C. Initial Review at the Conceptual Stage

1. Only proposals complying with the requirements of the PPEA or PPTA that contain sufficient information for a meaningful evaluation and that are provided in an appropriate format will be considered by the County for further review at the conceptual stage.

2. The County will determine at this initial stage of review whether it will proceed using:

a. Standard “competitive sealed bidding” procurement procedures

consistent with the VPPA; or

b. Procedures developed by the County that are consistent with procurement of other than professional services through "competitive negotiation" as the term is defined in § 2.2-4301 of the Code of Virginia. The County may proceed using competitive negotiation procedures only if it makes a written determination that doing so is likely to be advantageous to the County and the public based upon either (1) the probable scope, complexity, or urgency of need, or (2) the risk sharing, added value, increase in funding, or economic benefit from the project would otherwise not be available.

3. After reviewing the original proposal and any competing unsolicited proposals submitted during the notice period, the County may determine: a. not to proceed further with any proposal,

b. to proceed to the detailed phase of review with the original proposal,

c. to proceed to the detailed phase with a competing proposal, or

d. to proceed to the detailed phase with multiple proposals.

Section 5. Unsolicited Proposal Preparation and Submission

A. Format for Submissions at the Conceptual Stage. The County will require that unsolicited proposals at the conceptual stage contain the following information in the following format plus such other information as the County may reasonably request to complete its review or to comply with the requirements of the PPEA or PPTA: 1. Qualifications and Experience.

a. Identify the legal structure of the firm or consortium of firms making the proposal. Identify the organizational structure for the project, the management approach and how each partner and major subcontractor in

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the structure fits into the overall team.

b. Describe the experience of the firm or consortium of firms making the proposal, the key principals and project managers involved in the proposed project including experience with projects of comparable size and complexity, including prior experience bringing similar projects to completion on budget and in compliance with design, land use, service and other standards. Describe the length of time in business, business experience, public sector experience and other engagements of the firm or consortium of firms. Include the identity of any firms that will provide design, construction and completion guarantees and warranties and a description of such guarantees and warranties.

c. Provide the names, prior experience, addresses, telephone numbers and e-mail addresses of persons within the firm or consortium of firms who will be directly involved in the project or who may be contacted for further information.

d. Provide a current or most recently audited financial statement of the firm or firms and each partner with an equity interest of twenty percent or greater.

e. Identify any persons known to the proposer who would be obligated to

disqualify themselves from participation in any transaction arising from or in connection to the project pursuant to The Virginia State and Local Government Conflict of Interest Act, Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2.

2. Project Characteristics.

a. Provide a description of the project, including the conceptual design.

Describe the proposed project in sufficient detail so that type and intent of the project, the location, and the communities that may be affected are clearly identified.

b. Identify and fully describe any work to be performed by the County or

any other public entity. c. Include a list of all federal, state and local permits and approvals

required for the project and a schedule for obtaining such permits and approvals.

d. Identify any anticipated adverse social, economic, environmental, and

transportation impacts of the project measured against the County’s comprehensive land use plan and applicable ordinances and design standards. Specify the strategies or actions to mitigate known impacts

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of the project.

e. Identify the projected positive social, economic, environmental and transportation impacts of the project measured against the County’s comprehensive land use plan and applicable ordinances and design standards.

f. Identify the proposed schedule for the work on the project, including

sufficient time for the County’s review and the estimated time for completion.

g. Propose allocation of risk and liability, and assurances for timely completion of the project.

h. State assumptions related to ownership, legal liability, law enforcement,

and operation of the project and the existence of any restrictions on the County’s use of the project.

i. Provide information relative to phased openings of the proposed project.

3. Project Financing.

a. Provide a preliminary estimate and estimating methodology of the cost

of the work by phase, segment, or both.

b. Submit a plan for the development, financing, and operation of the project showing the anticipated schedule on which funds will be required. Describe the anticipated costs of and proposed sources and uses for such funds, including any anticipated debt service costs. The operational plan should include appropriate staffing levels and associated costs based upon the County’s adopted operational standards.

c. Include a list and discussion of assumptions underlying all major

elements of the plan.

d. Identify the proposed risk factors and methods for dealing with these factors. Describe methods and remedies associated with any financial default.

e. Identify any local, state, or federal resources that the proposer

contemplates requesting for the project along with an anticipated schedule of resource requirements. Describe the total commitment, if any, expected from governmental sources and the timing of any anticipated commitment, both one-time and on- going.

f. Identify the need, if any, for the County to provide either its general

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obligation or moral obligation backing. The underlying assumptions should address this need and/or state that the credit would be via a “Service Agreement”, for example. Any debt issuance should be expected to receive an investment grade rating from a nationally recognized statistical rating agency. If the natural rating is not investment grade, the County may require the use of credit enhancements.

g. Outline what impact, if any, a drop in interest rates would have on the

ultimate annual project cost. Indicate if there is a method to refinance for cost savings or does the firm only receive benefit of this potential.

h. Outline the financial penalties, if any, that would result should the County wish to terminate a project early or restructure the cash flows for some reason of its own choosing. The firm should be specific on this point.

i. Provide a breakout of the fees to any underwriting firm(s) and the type of obligation the firm(s) are using with a financing component. Be specific as to tax-exempt, taxable, floating rate, fixed rate, etc.

4. Project Benefit and Compatibility.

a. Identify who will benefit from the project, how they will benefit, and

how the project will benefit the County and the overall community.

b. Identify any anticipated public support or opposition, as well as any anticipated government support or opposition (including that in any affected jurisdiction), for the project.

c. Explain the strategy and plans, including the anticipated timeline that

will be carried out to involve and inform the general public, business community, and governmental agencies in areas affected by the project.

d. Describe any anticipated significant benefits to the community and the County, including anticipated benefits to the economic, social, environmental, transportation, etc., condition of the County and whether the project is critical to attracting or maintaining competitive industries and businesses to the County.

e. Compatibility with the County’s and/or affected jurisdiction’s local

comprehensive plan (including related environmental, land use and facility standards ordinances, where applicable), infrastructure development plans, transportation plans, the capital improvements plan and capital budget or other government spending plan.

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5. Any additional information as the County may request.

B. Format for Submissions at the Detailed Stage. If the County decides to proceed to the detailed phase of review with one or more proposals, the following information should be provided by the private entity unless waived by the County:

1. A topographical map (1:2,000 or other appropriate scale) depicting the

location of the proposed project or facility.

2. A list of public utility facilities, if any, that will be crossed by the qualifying project and a statement of the plans of the proposer to accommodate such crossings.

3. Information relating to the current plans for development of facilities to be

used by a public entity that are similar to the qualifying project being proposed by the private entity, if any, of each affected jurisdiction;

4. A statement and strategy setting out the plans for securing all necessary property and/or easements. The statement must include the names and addresses, if known, of the current owners of the subject property as well as a list of any property the proposer intends to request the County or affected jurisdiction to condemn.

5. A detailed listing of all firms, along with their relevant experience and abilities, that will provide specific design, construction, and completion guarantees and warranties, and a brief description of such guarantees and warranties along with a record of any prior defaults for performance.

6. A total life-cycle cost, including maintenance, specifying methodology and

assumptions of the project or projects including major building systems (e.g., electrical, mechanical, etc.), and the proposed project start date. Include anticipated commitment of all parties; equity, debt, and other financing mechanisms; and a schedule of project revenues and project costs. The life-cycle cost analysis should include, but not be limited to, a detailed analysis of the projected return, rate of return, or both, expected useful life of facility and estimated annual operating expenses using County adopted service levels and standards.

7. A detailed discussion of assumptions about user fees or rates, lease payments, and other service payments, and the methodology and circumstances for changes, and usage of the projects over the useful life of the projects.

8. Identification of any known government support or opposition, or general

public support or opposition for the project. Government or public support

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should be demonstrated through resolution of official bodies, minutes of meetings, letters, or other official communications.

9. Demonstration of consistency with appropriate County and/or affected jurisdiction comprehensive plans (including related environmental, land use and facility standards ordinances, where applicable), infrastructure development plans, transportation plans, the capital improvement plan and capital budget, or indication of the steps required for acceptance into such plans.

10. Explanation of how the proposed project would impact the County’s or affected jurisdiction’s development plans.

11. Identification of any known conflicts of interest or other factors that may impact the County’s consideration of the proposal, including the identification of any persons known to the proposer who would be obligated to disqualify themselves from participation in any transaction arising from or in connection to the project pursuant to The Virginia State and Local Government Conflict of Interest Act, Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2.

12. Additional material and information as the County may reasonably request.

Section 6. Proposal Evaluation and Selection Criteria

In evaluating any request or proposal, the County may rely upon internal staff reports or the advice of outside advisors or consultants. Some or all of the following items, along with the specified information required herein, shall be considered in the evaluation and selection of PPEA and PPTA proposals. The County, however, reserves and retains the right to reject any request or proposal at any time for any reason whatsoever. The County shall solicit public comment and/or hold a public hearing as required by the applicable Act.

A. Qualifications and Experience Factors to be considered in either phase of the County’s review to determine

whether the proposer possesses the requisite qualifications and experience may include, but are not necessarily limited to:

1. Experience with similar projects;

2. Demonstration of ability to perform work;

3. Leadership structure;

4. Project manager's experience;

5. Management approach;

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6. Financial condition; and

7. Project ownership.

B. Project Characteristics Factors to be considered in determining the project

characteristics may include, along with the specified information required herein, but are not necessarily limited to, the following: 1. Project definition;

2. Proposed project schedule;

3. Operation of the project;

4. Technology; technical feasibility;

5. Conformity to State, County, or affected jurisdiction laws, regulations, and

standards;

6. Environmental impacts;

7. Condemnation impacts;

8. State and local permits; and

9. Maintenance of the project.

C. Project Financing Factors to be considered in determining whether the proposed project financing allows adequate access to the necessary capital to finance the project may include, along with the specified information required herein, but are not necessarily limited to, the following: 1. Cost and cost benefit to the County;

2. Financing and the impact on the debt or debt burden of the County;

3. Financial plan including default implications;

4. Estimated cost; including debt source, operating costs, etc. and

5. Life-cycle cost analysis.

D. Project Benefit and Compatibility.

Factors to be considered in determining the proposed project's compatibility with

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the County’s, affected jurisdiction’s or regional comprehensive or development plans may include, along with the specified information required herein, but are not necessarily limited to, the following: 1. Community benefits;

2. Community support or opposition, or both;

3. Public involvement strategy;

4. Compatibility with existing and planned facilities;

5. Compatibility with County, regional, and state economic development

efforts; and Compatibility with County’s and affected jurisdiction’s land use and transportation plans,

Section 7. Interim and Comprehensive Agreements

The County shall not be obligated in any manner for any part or phase of a project prior to entering into a properly executed interim or comprehensive agreement. All interim and comprehensive agreements are subject to Board approval. Any changes to the terms of an executed agreement shall be in the form of a written amendment.

A. Interim Agreement Terms.

Interim agreements may be used when it is necessary or advisable to segment a project into phases to produce distinct and clear deliverables to keep the project moving forward to the development of a comprehensive agreement. An interim agreement may not be used to have the County assume risks that should be assumed by the proposer or to pay costs attributable to the private entity’s efforts in making the proposal. Development of an interim agreement is in the sole discretion of the County and in no way limits the rights reserved by the County to terminate the evaluation of any or all proposals at any time. The terms of the interim agreement may: 1. Permit the private entity to commence activities for which it may be

compensated relating to the proposed qualifying project or qualifying transportation facility, including, but not limited to, project planning and development, design and engineering, environmental analysis and mitigation, surveying, and ascertaining the availability of financing for the proposed facility or facilities;

2. Establish the process and timing of the negotiation of the comprehensive

agreement; and

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3. Contain any other provision relating to any aspect of the development or

operation of a qualifying project that the parties deem appropriate.

B. Comprehensive Agreement Terms. Prior to acquiring, designing, constructing, improving, renovating, expanding, equipping, maintaining, or operating the qualifying project or qualifying transportation facility, the selected proposer shall enter into a Comprehensive Agreement with the County. Each contract shall define the rights and obligations of the County and the selected proposer with regard to the project.

The terms of the Comprehensive Agreement shall be tailored to address the specifics of the project and shall include but not be limited to:

1. The delivery of maintenance, performance and payment bonds or letters of

credit in connection with any acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of the qualifying project; in a form and amount satisfactory to the County and on a form provided by the County.

2. The review and approval of plans and specifications for the qualifying

project by the County;

3. The rights of the County to inspect the qualifying project to ensure compliance with the contract;

4. The maintenance of a policy or policies of liability insurance or self-

insurance reasonably sufficient to insure coverage of the project and the tort liability to the public and employees and to enable the continued operation of the qualifying project;

5. The monitoring of the practices of the operator by the County to ensure

proper maintenance, safety, use and management of the qualifying project qualifying transportation facility;

6. The terms under which the operator will reimburse the County for services provided;

7. The policy and procedures that will govern the rights and responsibilities of

the County and the operator in the event that the contract is terminated or there is a material default by the operator including the conditions governing assumption of the duties and responsibilities of the operator by the County and the transfer or purchase of property or other interests of the operator by the County;

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8. The terms under which the operator will file appropriate financial statements on a periodic basis.

9. The mechanism by which user fees, lease payments, or service payments, if

any, may be established from time to time upon agreement of the parties. Any payments or fees shall be the same for persons using the facility under like conditions and that will not materially discourage use of the qualifying project or qualifying transportation facility;

10. A copy of any service contract shall be filed with the County.

11. A schedule of the current user fees or lease payments shall be made

available by the operator to any member of the public upon request.

12. Classifications according to reasonable categories for assessment of user fees may be made.

13. The terms and conditions under which the County will contribute financial

resources, if any, for the qualifying project; and

14. Other requirements of the PPEA or PPTA or provisions that the County determines serve the public purpose of the PPEA or PPTA.

C. Notice and Posting Requirements.

In addition to the posting/notice requirements in section 4.B.2 of this article, the County shall hold a public hearing on the proposals during the proposal review process, but not later than 30 days prior to entering into an interim or comprehensive agreement. 1. Once the negotiation phase for the development of an interim or

comprehensive agreement is complete and a decision to award has been made by the County, the County shall publically post the proposed agreement.

2. Once the interim or comprehensive agreement has been executed, the

County shall make the procurement records for the transaction available for public inspection in accordance with the Virginia Public Procurement Act.

a. The procurement records shall include documents initially protected

from disclosure on the basis that the release of such documents would adversely affect the financial interest or bargaining position of the County.

b. Trade secrets or financial records, including balance sheets or financial statements of the private entity that are not generally available to the public through regulatory disclosure or otherwise shall not be released.

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D. Governing Provisions.

In the event of a conflict between these guidelines and procedures and the PPEA or PPTA, the terms of the PPEA or PPTA, as applicable, shall control.

Documents

LOUDOUN COUNTY PROCUREMENT RESOLUTION