A Virginia procurement law primer, with a focus on Fairfax County

1. Doing Business with Fairfax County: A Procurement Law Primer Fairfax County Vendor Forum March 15, 2010 General Counsel, P.C. © 2010 General Counsel, P.C.

2. Presenter Brandon Okes Attorney with General Counsel, P.C. Practice corporate law Work extensively with businesses selling to governments—federal, state, and local Also teach for the Fairfax County Public Schools Adult & Community Education Program © 2010 General Counsel, P.C.

3. General Counsel, P.C. Offices in McLean Founded 2004 15 attorneys Focused on representing businesses and business owners Serve as outside general counsel to small- and medium-sized businesses © 2010 General Counsel, P.C.

4. General Counsel, P.C. Practice Areas Corporate Government Contracts Labor and Employment Litigation Intellectual Property Estate Planning Probate Representation Non-Profit © 2010 General Counsel, P.C.

5. Agenda Governing Law Methods of Procurement Preparing to Respond to an Opportunity Getting Paid Restrictions on County Contractors Remedies for Vendors © 2010 General Counsel, P.C.

6. Governing Law The Legislative Underpinnings © 2010 General Counsel, P.C.

7. Governing Law For solicited business—the standard rules: Virginia Public Procurement Act (VPPA) Fairfax County Purchasing Resolution Alternative related to projects with public-private ownership: Public-Private Education Facilities and Infrastructure Act of 2002 (PPEA) © 2010 General Counsel, P.C.

8. Procurement Categories Goods Services Professional (e.g. doctor, architect, engineer) Consultant (e.g. business coach) Non-professional (everything else) Construction Insurance © 2010 General Counsel, P.C.

9. Methods of Procurement The County’s Rules for Making Purchases © 2010 General Counsel, P.C.

10. Methods of Procurement General Rule: Competitive Procurement Competitive Sealed Bidding Competitive Negotiation Exceptions to Competitive Procurement* Small Purchase Open Market Sole Source Emergency Insurance Proposals under PPEA (* for the full list of exceptions, see the County Purchasing Resolution) © 2010 General Counsel, P.C.

11. Competitive Procurement Sealed Bidding Negotiation Used when County knows exactly what it wants to purchase The default method for goods, construction, and non-professional services Used when County does not know exactly what it wants to purchase Must be used for professional services May be used for goods or non-professional services IF the County determines that negotiation is preferable to sealed bids May be used for certain construction projects (e.g., design-build projects) © 2010 General Counsel, P.C.

12. Competitive Procurement (cont.) Sealed Bidding Negotiation Starts with an “Invitation to Bid” Describes specifically what County wants to procure Starts with a “Request for Proposals” Describes generally what County wants to procure Specifies the factors that County will use to evaluate the proposals © 2010 General Counsel, P.C.

13. Competitive Procurement (cont.) Sealed Bidding Negotiation Invitation to Bid is posted for at least 10 days Potential vendors can select on eVA to receive relevant Invitations to Bid Bidders must get bids in by the deadline Request for Proposals is posted for at least 10 days (if estimated amount over $50,000) Potential offerors can select on eVA to receive relevant public Requests for Proposal Offerors must get offers in by the deadline © 2010 General Counsel, P.C.

14. Competitive Procurement (cont.) Sealed Bidding Negotiation Contract awarded to “responsive and responsible” bidder with the lowest price County picks at least two offerors for to interview (the “short list”) Contract awarded to offeror with the “best” proposal Note: the “best” proposal doesn’t necessarily have the lowest price © 2010 General Counsel, P.C.

16. Exception #1: Small Purchase When: Purchase amount is less than $5,000 Rules: None, but preference given to vendors registered with eVA and/or with existing contracts © 2010 General Counsel, P.C.

17. Exception #2: Open Market When: Purchase of goods, insurance, construction, consultant services, or non-professional services Estimated cost between $5,000 and $50,000 Rules: $5,000-$10,000 estimate: three oral or written quotes $10,001-$50,000 estimate: four written bids © 2010 General Counsel, P.C.

18. Exception #3: Sole Source When: “There is only one source practicably available” Rules: The sole source gets the contract County must post notice that the contract was awarded on a sole-source basis © 2010 General Counsel, P.C.

19. Exception #4: Emergency When: “Circumstances arise causing curtailment or dimunition of essential service” Rules: Do not have to go through full competitive procurement process County should get quotes from a few vendors if time allows © 2010 General Counsel, P.C.

20. Exception #5: Insurance When: County purchases insurance Rules: Purchase directly through an insurance broker; do not advertise or use competitive procurement methods © 2010 General Counsel, P.C.

21. Exception #6: PPEA When: A proposal is made by a vendor or the County under the Public-Private Education Facilities and Infrastructure Act of 2002 Rules: The proposal is evaluated as required in the PPEA, and is exempt from competitive procurement © 2010 General Counsel, P.C.

22. Piggybacking on Another Agency’s Contract County may skip all these procurement steps if there is an existing contract off of which it may make the purchase Examples: State contracts Cooperative purchasing arrangements When you make a bid, you may specify whether other government agencies may purchase at the same terms © 2010 General Counsel, P.C.

23. Preparing to Respond to an Opportunity The Steps You Can Start Taking Now © 2010 General Counsel, P.C.

25. Responsive and Responsible Prepare to be responsive to the County (“submit a bid which conforms in all material respects to the Invitation to Bid or Request for Proposal”) i.e., follow the County’s instructions note: brand names are not a material requirement, but bid must include equivalent goods Ensure that your business is a “responsible bidder or offeror” with respect to the contract you are seeking © 2010 General Counsel, P.C.

26. Demonstrating Responsibility Pick contracting opportunities that match your business’s abilities For competitive sealed bidding: be a “responsible vendor”—capable of carrying out the contract requirements and able to assure the County you will perform in good faith For competitive negotiation: be able to meet the criteria specified in the Request for Proposals For noncompetitive procurements: create a personal assurance of responsibility by getting to know the purchasing agents who cover the government agencies you are targeting County looks at a number of factors © 2010 General Counsel, P.C.

27. “Responsible Vendor” Factors 1. The ability, capacity and skill of the bidder to perform the contract or provide the service required; 2. Whether the bidder can perform the contract or provide the service promptly, or within the time specified, without delay or interference; © 2010 General Counsel, P.C.

28. “Responsible Vendor” Factors (cont.) 3. The character, integrity, reputation, judgment, experience and efficiency of the bidder; 4. The quality of performance of previous contracts or services; 5. The previous and existing compliance by the bidder with laws and ordinances relating to the contract or services; © 2010 General Counsel, P.C.

29. “Responsible Vendor” Factors (cont.) 6. The sufficiency of the financial resources and ability of the bidder to perform the contract or provide the service; 7. The quality, availability and adaptability of the goods or services to the particular use required; 8. The ability of the bidder to provide future maintenance and service for the use of the subject of the contract; © 2010 General Counsel, P.C.

30. “Responsible Vendor” Factors (cont.) 9. 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 10. Such other information as may be secured by the County Purchasing Agent having a bearing on the decision to award the contract. © 2010 General Counsel, P.C.

31. Getting Paid How to Access the County’s Money © 2010 General Counsel, P.C.

32. Payment Methods Purchasing Card Purchases under $2,500 ACH or Check Must send invoice that includes purchase order number and the name of the agency that made the purchase Generally, submit invoice as soon as you have delivered the goods/services County will not pay on an invoice unless your business has on file an IRS Form W-9 (with the business’s EIN) © 2010 General Counsel, P.C.

33. Restrictions on County Contractors The County’s Way of Ensuring that You Follow Its Rules © 2010 General Counsel, P.C.

34. Restrictions that Come with a Fairfax Government Contract Increased Oversight Tax compliance Non-discrimination in employment Drug-free workplace Immigration status of employees Anti-bribery certifications Compliance with the terms of federal grants Advertising cannot suggest Fairfax government endorsement County has audit rights for three years after final payment on contract © 2010 General Counsel, P.C.

35. Withdrawing a Bid/Offer Generally, may withdraw at will before deadline After deadline, may only withdraw for limited circumstances and in very limited time Error in judgment is not basis for withdrawal © 2010 General Counsel, P.C.

36. Consequences of Violating Restrictions Contract damages Suspension or debarment from future procurement opportunities © 2010 General Counsel, P.C.

37. Remedies for Vendors Ensuring the County Follows Its Rules © 2010 General Counsel, P.C.

38. Appeals of County Contracting Decisions Appeal of Determination of Nonresponsibility Only applies if bidder was the low bidder Appeal of Determination of Ineligibility Ineligibility = Suspension or Debarment Appeal of Denial of Withdrawal of Bid Protest of Award or Decision to Award May not protest on grounds that winning bidder is nonresponsible May protest on basis that sole source or emergency exceptions did not apply © 2010 General Counsel, P.C.

39. Appeals of County Contracting Decisions (cont.) Time: generally, must appeal within 10 days of the relevant decision Rule: County decision stands unless it was “arbitrary and capricious” © 2010 General Counsel, P.C.

40. Contractual Disputes Notify the County if you have a claim for money or other relief related to your performance on a County contract First, try to settle any dispute amicably If that does not succeed, send a detailed description of the claim to the County Purchasing Agent County Purchasing Agent makes decision on the complaint within 30 days Aggrieved vendor may appeal Agent’s decision to Fairfax Circuit Court within six months © 2010 General Counsel, P.C.

41. © 2010 General Counsel, P.C. Links eVA: http://www.eva.state.va.us/ SWaM: http://www.dmbe.virginia.gov/swamcert.html Fairfax County Department of Purchasing and Supply Management: http://www.fairfaxcounty.gov/dpsm/ Current Fairfax Procurement Opportunities: http://www.fairfaxcounty.gov/dpsm/solic.htm Fairfax Business Taxes: http://www.fairfaxcounty.gov/dta/businesstax_home.htm

42. © 2010 General Counsel, P.C. Questions Brandon Okes General Counsel, P.C. 6862 Elm Street, Suite 800 McLean, Virginia 22101 p: (703) 556-0411 e: bokes@generalcounsellaw.com w: http://www.generalcounsellaw.com