A. STUDY AUTHORITY AND SCOPE

House Joint Resolution No. 643 (Appendix A) agreed to during the 1995 Session of the General Assembly, established a select joint subcommittee of the House and Senate Committees on General Laws to study the effect of authorizing design-build and construction management contracts for public bodies. The resolved clause in the resolution directed the select joint subcommittee to examine the effect of authorizing public bodies other than the Commonwealth to enter into contracts for construction projects on a fixed-price, design-build basis or construction management basis.

The select joint subcommittee was comprised of nine members: five members of the House Committee on General Laws appointed by the Speaker of the House, and four members of the Senate Committee on General Laws appointed by the Senate Committee on Privileges and Elections.

B. BACKGROUND AND PREVIOUS STUDIES

Senate Joint Resolution 148, enacted by the 1979 Session of the General Assembly, directed the then Secretary of Administration and Finance to establish a task force to (i) consider the desirability and feasibility of public contract legislation applying uniformly to the state and counties, cities, and other political subdivisions; (ii) evaluate current and proposed procurement legislation in light of requirements for federal grants; and (iii) compare Virginia law to other state procurement laws and the Model Procurement Code approved by the American Bar Association in 1979. Senate Joint Resolution 148 required the task force created by the Secretary of Administration and Finance to report to the Committees on General Laws of the Senate and House of Delegates, and required an interim report by December 1, 1979 and a final report by November 1, 1980.

In its interim report, Senate Document 18 (1980), the task force indicated that it was participating in a national development of procurement law which began in the early 1970's with the Commission on Federal Procurement. The report of the Commission on Federal Procurement led to (i) the creation of the Office of Federal Procurement Policy, (ii) a study of state and local government procurement published by the Council of State Governments, and (iii) the adoption by the American Bar Association in 1979 of the Model Procurement Code. The task force examined the statutes under which all public agencies of the Commonwealth purchase materials, services, and construction.

In 1979, the Virginia Public Procurement Act did not exist; instead, public procurement law was sprinkled throughout the Code of Virginia and was conducted on an agency-by-agency basis. At that time, statutory provisions governing public procurement were found in Titles 2.1, 9, 11, 15.1, 22, 33.1, 42.1, 53 and 59 of the Code of Virginia. Procurement of construction, except for highways which was found in Title 33.1, was located in Title 11 (Chapter 4 §§ 11-17 et seq.) and applied only to the Commonwealth and agencies of the Commonwealth. Although the task force in its interim report made no recommendations, it found that in Virginia, procurement law was not centralized and each agency contracted in its own right. (*1) Further, prior to 1979, no law required competitive bidding.

The Final Report issued in November, 1980, by the office of the Secretary of Administration and Finance found (i) no uniform, coherent statement of public procurement policy existed in Virginia which led to conflicting interpretations of law, (ii) serious omissions in procurement activities resulted in state and county governments being governed by state law and city governments guided by their charter provisions, (iii) procurement rules changed based on the identity of the contracting agency, and (iv) Virginia procurement laws needed to be overhauled "and that the final product should be a comprehensive statement applicable to all levels and agencies of government, articulating broad fundamental operating policies, the foremost of which is competition". (*2) As a result of these findings, the adoption of a comprehensive public procurement act for Virginia was recommended. The Virginia Public Procurement Act became effective on January 1, 1983 (Chapter 647, 1982 Acts of Assembly).
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(*1) The Division of Engineering and Buildings of the Department of General Services did have some administrative control of public procurement when construction involved capital outlay funds.
(*2) Virginia Procurement Law Study Final Report dated November 1, 1980, office of the Secretary of Administration and Finance.