CHAPTER 933
An Act providing management agreements between the
Commonwealth and Virginia Polytechnic Institute and State University, The
College of William and Mary in Virginia, and the University of Virginia,
respectively, pursuant to the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 (§ 23-38.88 et seq.) of the Code of
Virginia.
[H 1502]
Approved May 18, 2006
Be it enacted by the General Assembly of Virginia:
1. That the following Chapter 1 shall hereafter be known as
the "2006 Management Agreement Between the Commonwealth of Virginia and
Virginia Polytechnic Institute and State University:"
CHAPTER 1.
MANAGEMENT AGREEMENT
BY AND BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY
This MANAGEMENT AGREEMENT, executed this 15th day of
November, 2005, by and between the Commonwealth of Virginia (hereafter, the
Commonwealth) and Virginia Polytechnic Institute and State University (hereafter, Virginia Tech, to be abbreviated as the University) provides as follows:
RECITALS
WHEREAS, Virginia Tech has satisfied the conditions
precedent set forth in subsections A and B of § 23-38.97 of the Code of
Virginia to become a public institution of higher education of the Commonwealth
governed by Subchapter 3 (§ 23-38.91 et seq.) of the Restructured Higher
Education Administrative and Financial Operations Act, Chapter 4.10 (§ 23-38.88
et seq.) of Title 23 of the Code of Virginia (Subchapter 3 and the Act,
respectively), as evidenced by:
1. Board of Visitors Approval. The minutes of a meeting of
the Board of Visitors of Virginia Tech held on September 24, 2005, indicate that
an absolute two-thirds or more of the members voted to approve the resolution
required by subdivision A 1 of § 23-38.97 of the Act;
2. Written Application to the Governor. Virginia Tech has
submitted to the Governor a written Application dated October 27, 2005, with
copies to the Chairmen of the House Committee on Appropriations, the House
Committee on Education, the Senate Committee on Finance, and the Senate
Committee on Education and Health, expressing the sense of its Board of
Visitors that Virginia Tech is qualified to be, and should be, governed by
Subchapter 3 of the Act, and substantiating that Virginia Tech has fulfilled
the requirements of paragraph 2 of subsection A of § 23-38.97 of the Act; and
3. Finding by the Governor. In accordance with subsection B
of § 23-38.97 of the Act, the Governor has found that Virginia Tech has
fulfilled the requirements of subdivision A 2 of § 23-38.97 of the Act, and
therefore has authorized Cabinet Secretaries to enter into this Management
Agreement on behalf of the Commonwealth with Virginia Tech; and
WHEREAS, Virginia Tech is therefore authorized to enter
into this Management Agreement as provided in subsection D of § 23-38.88 and
Subchapter 3 of the Act.
AGREEMENT
NOW THEREFORE, in accordance with the provisions of the
Restructured Higher Education Administrative and Financial Operations Act,
Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of the Code of Virginia, and in
consideration of the foregoing premises, the Commonwealth and Virginia Tech do
now agree as follows:
ARTICLE 1. DEFINITIONS.
As used in this Agreement, the following terms have the
following meanings, unless the context requires otherwise:
"Act" means the Restructured Higher Education
Administrative and Financial Operations Act, Chapter 4.10 (§ 23-38.88 et seq.)
of Title 23 of the Code of Virginia.
"Agreement" means "Management
Agreement."
"Board of Visitors" means the Board of Visitors
of Virginia Tech.
"Covered Employee" means any person who is
employed by Virginia Tech on either a salaried or wage basis.
"Covered Institution" means, on and after the
effective date of its initial management agreement with the Commonwealth, a
public institution of higher education of the Commonwealth of Virginia that has
entered into a management agreement with the Commonwealth to be governed by and
in accordance with the provisions of subsection D of § 23-38.88 and Subchapter
3 of the Act.
"Enabling legislation" means those chapters,
other than Chapter 4.10, of Title 23 of the Code of Virginia, as amended,
creating, continuing, or otherwise setting forth the powers, purposes, and
missions of the individual public institutions of higher education of the
Commonwealth.
"Management Agreement" means this agreement
between the Commonwealth of Virginia and Virginia Tech as required by
subsection D of § 23-38.88 and Subchapter 3 of the Act.
"Parties" means the parties to this Management
Agreement, the Commonwealth of Virginia and Virginia Tech.
"Public institution of higher education" means
those two-year and four-year institutions enumerated in § 23-14 of the Code of Virginia.
"University" means Virginia Polytechnic Institute
and State University, consisting of the University Division (State Agency 208)
and Virginia Cooperative Extension and the Agricultural Experiment Station
Division (State Agency 229).
ARTICLE 2. SCOPE OF MANAGEMENT AGREEMENT.
SECTION 2.1. Enhanced Authority Granted and Accompanying
Accountability.
Subchapter 3 of the Act provides that, upon the execution
of, and as of the effective date for, this Management Agreement, Virginia Tech
shall become a Covered Institution entitled to be granted by the Commonwealth
and to exercise the powers and authority provided in Subchapter 3 of the Act
that are expressly contained in this Management Agreement. In general, subject
to its management agreement with the Commonwealth, status as a Covered
Institution governed by Subchapter 3 of the Act and this Management Agreement
is intended to replace (i) the post-General Assembly authorization
prior-approval system of reviews, approvals, policies and procedures carried
out and implemented by a variety of central State agencies with (ii) a
post-audit system of reviews and accountability under which a Covered
Institution is fully responsible and fully accountable for managing itself
pursuant to Subchapter 3 of the Act and its management agreement with the
Commonwealth.
SECTION 2.1.1. Assessments and Accountability. Virginia
Tech and its implementation of the enhanced authority granted by Subchapter 3
of the Act and this Management Agreement, and the Board of Visitors polices
attached hereto as Exhibits A through F, shall be subject to the reviews,
assessments, and audits (i) set forth in the Act that are to be conducted by
the Auditor of Public Accounts, the Joint Legislative Audit and Review
Commission, and the State Council of Higher Education for Virginia, or (ii) as
may be conducted periodically by the Secretaries of Finance, Administration,
Education, or Technology, or by some combination of these four Secretaries, or
(iii) as otherwise may be required by law other than the Act.
SECTION 2.1.2. Express Grant of Powers and Authority.
Subject to the specific conditions and limitations contained in Article 4
(Institutional Management), Article 5 (Capital Projects; Procurement; Property
Generally), and Article 6 (Human Resources) of Subchapter 3 of the Act, the
Commonwealth and Virginia Tech agree that the Commonwealth has expressly
granted to Virginia Tech by this Management Agreement all the powers and
authority contained in certain policies adopted by the Board of Visitors of
Virginia Tech attached hereto as Exhibits A through F and governing (1) the
undertaking and implementation of capital projects, and other acquisition and
disposition of property (Exhibit A), (2) the leasing of property, including
capital leases (Exhibit B), (3) information technology (Exhibit C), (4) the
procurement of goods, services, including certain professional services,
insurance, and construction (Exhibit D), (5) human resources (Exhibit E), and
(6) its system of financial management (Exhibit F), including, as provided in
subsection B of § 23-38.104 of the Act, the sole authority to establish
tuition, fees, room, board, and other charges consistent with sum sufficient
appropriation authority for non-general funds as provided by the Governor and
the General Assembly in the Commonwealth's biennial appropriations
authorization. Subject to the specific conditions and limitations contained in
Article 3 (Powers and Authority Generally) of Subchapter 3 of the Act, in this
Management Agreement, and in one or more of the Board of Visitors policies
attached hereto as Exhibits A through F, the Commonwealth and Virginia Tech
agree that the Commonwealth has expressly granted to Virginia Tech all the
powers and authority permitted by Article 3 (Powers and Authority Generally) of
Subchapter 3 of the Act.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties
and responsibilities set forth in, and for the appropriate implementation of,
this Management Agreement and the policies adopted by it and attached hereto as
Exhibits A through F. Consistent with this full and ultimate accountability,
however, the Board may, pursuant to its legally permissible procedures,
specifically delegate the duties and responsibilities set forth in this
Management Agreement to its officers, committees, and subcommittees, and, as
set forth in the policies adopted by the Board and attached hereto as Exhibits
A through F, to a person or persons within the University.
SECTION 2.1.3. Reimbursement by Virginia Tech of Certain
Costs.
By July 1 of each odd-numbered year, the University shall
inform the Secretary of Finance of any intent during the next biennium to
withdraw from any health or other group insurance or risk management program
made available to the University through any agency, body corporate, political
subdivision, authority, or other entity of the Commonwealth, and in which the
University is then participating, to enable the Commonwealth's actuaries to
complete an adverse selection analysis of any such decision and to determine
the additional costs to the Commonwealth that would result from any such
withdrawal. If upon notice of such additional costs to the Commonwealth, the
University proceeds to withdraw from such health or other group insurance or
risk management program, the University shall, pursuant to subdivision D 2 c of
§ 23-38.88, reimburse the Commonwealth for all such additional costs
attributable to such withdrawal as determined by the Commonwealth's actuaries.
SECTION 2.1.4. Potential Impact on Virginia College Savings Plan. As required by subdivision D 2 c of § 23-38.88 of the Act, Virginia Tech
has given consideration to potential future impacts of tuition increases on the
Virginia College Savings Plan (§ 23-38.75 of the Code of Virginia) and has
discussed those potential impacts with the Executive Director and staff of that
Plan and with parties in the Administration who participated in the development
of this Management Agreement. The Executive Director of the Plan has provided
to Virginia Tech and the Commonwealth the Plan's assumptions underlying the
contract pricing of the program.
SECTION 2.1.5. Justification for Deviations from the
Virginia Public Procurement Act. Pursuant to § 23-38.110 of the Act and subject
to the provisions of this Management Agreement, Virginia Tech may be exempt
from the provisions of the Virginia Public Procurement Act (VPPA), Chapter 43
(§ 2.2-4300 et seq.) of Title 2.2 of the Code of Virginia. Any procurement
policies or rules that deviate from the VPPA must be uniform across all
institutions governed by Subchapter 3 of the Act, and the Board of Visitors
shall adopt and comply with procurement policies that are based upon
competitive principles and seek competition to the maximum practical degree.
The Policy Governing the Procurement of Goods, Services, Insurance, and
Construction, and the Disposition of Surplus Materials and the Rules Governing
Procurement of Goods, Services, Insurance, and Construction (the Procurement
Rules) attached to that Policy as Attachment I constitute the policies and
uniform deviations from the VPPA required by subsections A and B of § 23-38.110
of the Act.
Subsection D of § 23-38.110 of the Act requires that
Virginia Tech identify the public, educational, and operational interests
served by any procurement rule or rules that deviate from those in the VPPA.
The adopted Board of Visitors policy on procurement and the Procurement Rules
provide Virginia Tech with the autonomy to administer its procurement process
while fully adhering to the principle that competition should be sought to the
maximum extent feasible. This autonomy will better position Virginia Tech
to support the requirements of its growing teaching, research and outreach
missions. Greater autonomy in procurement will improve internal capacity to
respond quickly to emergent material and service issues and, therefore, enable
Virginia Tech to be more efficient and effective in meeting the Commonwealth's
goals for institutions of higher education. In some instances, costs will be
reduced. Taken collectively, Virginia Tech's procurement policies and rules
that differ from those required by the VPPA will enhance procurement "best
practices" as they currently are being observed within the higher
education community nationally. Further, these changes will provide
efficiencies to both Virginia Tech and public sector suppliers.
SECTION 2.1.6. Quantification of Cost Savings. Subsection C
of § 23-38.104 of the Act requires that a Covered Institution include in its
management agreement with the Commonwealth the quantification of cost savings
realized as a result of the additional operational flexibility provided
pursuant to Subchapter 3 of the Act. Since this initial Management Agreement
with the Commonwealth has not yet been implemented by Virginia Tech, the
parties agree that Virginia Tech is not in a position to quantify any such cost
savings at this time, although Virginia Tech expects that there will be cost
savings resulting from the additional authority granted to Virginia Tech
pursuant to Subchapter 3 of the Act and that such cost savings will be part of
the determinations made during the reviews, assessments, and audits to be
conducted pursuant to Subchapter 3 of the Act by the Auditor of Public
Accounts, the Joint Legislative Audit and Review Commission, and the State
Council of Higher Education for Virginia, and as otherwise described in Section
2.1.1 above.
SECTION 2.1.7. Participation in State Programs. The
Commonwealth intends that Virginia Tech shall continue to fully participate in,
and receive funding support from the many and varied programs established now
or in the future by the Commonwealth to provide support for Virginia's public
institutions of higher education and for Virginians attending such
institutions, including but not limited to: the state capital outlay and bond
financing initiatives undertaken from time to time by the Commonwealth; the
Higher Education Equipment Trust Fund established pursuant to (§ 23-30.24 et
seq.) of the Code of Virginia; the Maintenance Reserve Fund as provided in the
Appropriation Act; the Eminent Scholars program as provided in the
Appropriation Act; the Commonwealth's various student financial assistance
programs; and other statewide programs or initiatives that exist, or may be
established, in support of the Commonwealth's higher education institutions,
programs, or activities.
SECTION 2.1.8. Implied Authority. Pursuant to subdivision D
1 of § 23-38.88 of the Act, the only implied authority granted to Virginia Tech
by this Management Agreement is that implied authority that is actually
necessary to carry out the expressed grant of financial or operational
authority contained in this Agreement or in the policies adopted by Virginia
Tech's Board of Visitors and attached hereto as Exhibits A through F.
SECTION 2.1.9. Exercise of Authority. Virginia Tech and the
Commonwealth acknowledge and agree that the execution of this Management
Agreement constitutes the conclusion of a process that, as of the effective
date of this Agreement, confers upon Virginia Tech the enhanced authority and
operating flexibility described above, all of which is in furtherance of the
purposes of Subchapter 3 of the Act. Therefore, without any further conditions
or requirements, Virginia Tech shall, on and after the effective date of this
Management Agreement, be authorized to exercise the authority conferred upon it
by this Management Agreement and the policies adopted by its Board of Visitors
attached hereto as Exhibits A through F, and by Article 3 (Powers and Authority
Generally) of Subchapter 3 of the Act except to the extent that the powers and
authority contained in Article 3 of Subchapter 3 of the Act have been limited by
this Management Agreement or the Board of Visitors policies attached hereto as
Exhibits A through F.
Virginia Tech and the Commonwealth also acknowledge and
agree that, pursuant to subsection A of § 23-38.91 of the Act and consistent
with the terms of this Management Agreement, the Board of Visitors of Virginia
Tech shall assume full responsibility for management of Virginia Tech, subject
to the requirements and conditions set forth in Subchapter 3 of the Act, the
general requirements for this Management Agreement as provided in § 23-38.88 of
the Act, and this Management Agreement. The Board of Visitors shall be fully
accountable for (a) the management of Virginia Tech as provided in the Act, (b)
meeting the requirements of §§ 2.2-5004, 23-9.2:3.02, and 23-9.6:1.01 of the
Code of Virginia, and (c) meeting such other provisions as are set forth in
this Management Agreement.
SECTION 2.2. State Goals.
SECTION 2.2.1. Furthering State Goals. As required for all
public institutions of higher education of the Commonwealth by subsection B of
§ 23-38.88 of the Act, prior to August 1, 2005, the Board of Visitors of
Virginia Tech adopted the resolution setting forth its commitment to the
Governor and the General Assembly to meet the State goals specified in that
subsection B.
In addition to the above commitments, the University
commits to furthering these State goals by:
1. In addition to its six-year target of achieving $227
million in external research by 2011-12 [which is the last year of the six-year
plan], the University commits to match from institutional funds, other than
general funds or tuition, on a dollar for dollar basis, any additional research
funds provided by the State in the Appropriation Act above the amount provided
from institutional funds for research in 2005-06.
2. In a concerted effort to provide educational
opportunities to Virginia students attending institutions in the Virginia
Community College System (VCCS) and Richard Bland College, the University
commits to work with the University of Virginia and the College of William and
Mary in Virginia to establish a program under which these three institutions
will increase significantly the number of such students transferring to their
institutions. Specifically, pursuant to this program, the University, the
University of Virginia and the College of William and Mary in Virginia
collectively commit to enroll as transfer students from VCCS institutions and
Richard Bland College (i) by the 2007-08 fiscal year, not less than
approximately 300 new such transfer students each year over the number enrolled
in 2004-05, for a total of approximately 900 such transfer students each year,
and (ii) by the end of the decade, not less than approximately 650 new such
transfer students each year over the number enrolled in 2004-05, for a total of
approximately 1,250 such transfer students each year. The three institutions
have agreed that they will mutually determine how to divide the responsibility
for these additional transfer students equitably among themselves.
3. As an institutional priority and obligation, the
University commits to the Governor and General Assembly to work meaningfully
and visibly with an economically distressed region or local area of the
Commonwealth, not smaller in size than a city or county, which lags behind the
Commonwealth in education, income, employment, and other factors. The
University commits to establish a formal partnership with that area to develop
jointly a specific action plan that builds on the University's programmatic
strengths and uses the University's faculty, staff and, where appropriate,
student expertise to stimulate economic development in the area to make the
area more economically viable, and to improve student achievement and teacher
and administrator skill sets in a school division in that area. The
University shall submit the action plan to the Governor and General Assembly by
no later than December 31, 2006, and shall report to the Governor and General
Assembly by September 1 of each year on its progress in implementing the action
plan during the prior fiscal year.
SECTION 2.2.2. Student Enrollment, Tuition, and Financial
Aid. As required by § 23-9.2:3.02 of the Code of Virginia, Virginia Tech, along
with all other public institutions of higher education of the Commonwealth, has
developed and submitted to the State Council of Higher Education for Virginia
(SCHEV) by October 1, 2005, an institution-specific Six-Year Plan addressing
Virginia Tech's academic, financial, and enrollment plans for the six-year
period of fiscal years 2006-07 through 2011-12. Subsection A of § 23-9.2:3.02
of the Code of Virginia, requires Virginia Tech to update this Six-Year Plan by
October 1 of each odd-numbered year. Subsection B of § 23-38.97 of the Act
requires that a management agreement address, among other issues, such matters
as Virginia Tech's in-state undergraduate student enrollment, its financial aid
requirements and capabilities, and its tuition policy for in-state
undergraduate students. These matters are addressed below and in Virginia
Tech's Six-Year P1an submitted to SCHEV, and the parties therefore agree that
Virginia Tech's Six-Year Plan and the description below meet the requirement of
subsection B of § 23-38.97 of the Act.
Subsection B of § 23-38.104 of the Act requires the Board of
Visitors of Virginia Tech to include in this Management Agreement Virginia
Tech's commitment to provide need-based grant aid for middle- and lower-income
Virginia students in a manner that encourages student enrollment and
progression without respect to potential increases in tuition and fees.
Virginia Tech's commitment in this regard is clear. Virginia Tech recognizes
that the cost of higher education as a percentage of family income has
increased steadily in recent years for low and moderate income families. Since
the University anticipates further increases in tuition and fees during the six
year period of 2006-2012, the University developed its Funds for the Future
program, which shall be substantially as described in the remainder of this
Section 2.2.2, as may be amended from time to time by the Board of Visitors of
Virginia Tech and reported to the Secretaries of Finance and Education and the
Chairmen of the Senate Committee on Finance and the House Committee on
Appropriations. The Funds for the Future program was developed to increase
institutional funds and other fund sources to moderate the impact of future
tuition and fees increases for Virginia undergraduates from families with
adjusted gross income of $100,000 or less, as determined by federal financial
aid regulations.
The Funds for the Future program works on a sliding scale
of family responsibility for coverage of tuition and fees. For example,
students with a family adjusted gross income of $30,000 or less (approximately
150% of the poverty level for a family of four) will receive incremental grant
aid sufficient to completely offset any increase in their tuition and mandatory
fees during their four years of enrollment at Virginia Tech. For students with
family adjusted gross income of $30,001 to $99,999, the University will provide
varying levels of financial aid awards to reduce the impact of tuition and fee
increases.
Virginia Tech serves a large number of students with
financial need. Based on 2003-04 enrollment data, the University estimates that
for the 2006-07 academic year approximately 5,636 students, representing over
36% of the Virginia Tech undergraduate student body, will receive incremental
benefits under the Funds for the Future program. The institution will draw upon
the full range of available resources to increase grant aid to these students
and has established very aggressive goals for its institutional and private
funds resources to create and sustain this program. As such, the University
program is also based on the commitment of additional state General Fund
support, consistent with the levels identified in its Six-Year Financial Plan;
these amounts are based upon SCHEV calculations for incremental General Fund
appropriations. Consistent with the current financial aid environment, the
University also anticipates that existing federal, state, and University loan
programs will be available, as needed, to assist students in addressing their
annual costs of education not addressed by existing grant aid programs, the
Funds for the Future program, or other available resources.
The Commonwealth and Virginia Tech agree that this
commitment meets the requirements of subsection B of § 23-38.104 of the Act.
SECTION 2.3. Authority Granted to Virginia Cooperative
Extension and the Agriculture Experiment Station Division. Virginia Cooperative
Extension and the Agriculture Experiment Station Division shall receive the
benefits of the additional financial and operational authority granted by this
Management Agreement as it and the policies adopted by the Board of Visitors
attached as Exhibits A through F are implemented by Virginia Tech on behalf of
Virginia Cooperative Extension and the Agriculture Experiment Station Division,
but Virginia Cooperative Extension and the Agriculture Experiment Station
Division shall not receive any additional independent financial or operational
authority as a result of this Management Agreement or the attached Board of
Visitors policies beyond the independent financial and operational authority
that it had prior to the effective date of this Management Agreement or that it
may be granted by law in the future.
SECTION 2.4. Other Law. As provided in subsection B of §
23-38.91 of the Act, Virginia Tech shall be governed and administered in the
manner provided not only in this Management Agreement, but also as provided in
the Appropriation Act then in effect and Virginia Tech's Enabling Legislation.
SECTION 2.4.1. The Appropriation Act. The Commonwealth and
Virginia Tech agree that, pursuant to the current terms of the Act and the
terms of § 4-11.00 of the 2004-06 Appropriation Act, if there is a conflict
between the provisions of the Appropriation Act and the provisions of
Subchapter 3 of the Act, or this Management Agreement, or the Board of Visitors
policies attached to this Management Agreement as Exhibits A through F, the
provisions of the Appropriation Act shall control, and shall continue to
control unless provided otherwise by law.
SECTION 2.4.2. Virginia Tech's Enabling Legislation. As
provided in subsection C of § 23-38.91 of the Act, in the event of a conflict
between any provision of Subchapter 3 of this Act and Virginia Tech's Enabling
Legislation, the Enabling Legislation shall control.
SECTION 2.4.3. Title 2.2 of the Code of Virginia. As
provided in subsection B of § 23-38.92 of the Act, except as specifically made
inapplicable under Subchapter 3 of the Act and the express terms of this
Management Agreement, the provisions of Title 2.2 relating generally to the
operation, management, supervision, regulation, and control of public
institutions of higher education shall be applicable to Virginia Tech as
provided by the express terms of this Management Agreement. As further provided
in subsection C of § 23-38.92 of the Act, in the event of conflict between any provision
of Title 2.2 and any provision of Subchapter 3 of the Act as expressed in this
Management Agreement, the provisions of this Management Agreement shall
control.
SECTION 2.4.4. Educational Policies of the Commonwealth. As
provided in subsection A of § 23-38.93 of the Act, for purposes of §§ 2.2-5004.
23-1.01. 23-1.1, 23-2, 23-2.1, 23-2.1:1, 23-3, 23-4.2, 23-4.3, 23-4.4,
23-7.1:02, 23-7.4, 23-7.4:1, 23-7.4:2, 23-7.4:3, 23-7.5, 23-8.2:1, 23-9.1,
23-9.2, 23-9.2:3, 23-9.2:3.02, 23-9.2:3.1 through 23-9.2:5, 23-9.6:1.01, and
Chapter 4.9 (§ 23-38.75 et seq.) of the Code of Virginia, Virginia Tech shall
remain a public institution of higher education of the Commonwealth following
the effective date of this Management Agreement, and shall retain the authority
granted and any obligations required by such provisions, unless and until
provided otherwise by law other than the Act. In addition, Virginia Tech shall
retain the authority, and any obligations related to the exercise of such
authority, that is granted to institutions of higher education pursuant to
Chapter 1.1 (§ 23-9.3 et seq.), Chapter 3 (§ 23-14 et seq.), Chapter 3.2 (§
23-30.23 et seq.), Chapter 3.3 (§ 23-30.39 et seq.), Chapter 4 (§ 23-31 et
seq.), Chapter 4.01 (§ 23-38.10:2 et seq.), Chapter 4.1 (§ 23-38.11 et seq.),
Chapter 4.4 (§ 23-38.45 et seq.), Chapter 4.4:1 (§ 23-38.53:1 et seq.), Chapter
4.4:2 (§ 23-38.53:4 et seq.), Chapter 4.4:3 (§ 23-38.53::l1), Chapter 4.4:4 (§
23-38.53:12 et seq.), Chapter 4.5 (§ 23-38.54 et seq.), Chapter 4.7 (§ 23-38.70
et seq.), Chapter 4.8 (§ 23-38.72 et seq.), and Chapter 4.9 (§ 23-38.75 et
seq.), unless and until provided otherwise by law other than the Act.
SECTION 2.4.5. Public Access to Information. As provided in
§ 23-38.95 of the Act, Virginia Tech shall continue to be subject to § 2.2-4342
and to the provisions of the Virginia Freedom of Information Act, Chapter 37 (§
2.2-3700 et seq.) of Title 2.2 of the Code of Virginia, but shall be entitled
to conduct business pursuant to § 2.2-3709, if expressly named therein, and, in
all cases, may conduct business as a "state public body" for purposes
of subsection B of § 2.2-3708.
SECTION 2.4.6. Conflicts of Interests. As provided in §
23-38.96 of the Act, the provisions of the State and Local Government Conflict
of Interests Act, Chapter 32 (§ 2.2-3100 et seq.) of the Code of Virginia, that
are applicable to officers and employees of a state governmental agency shall
continue to apply to the members of the Board of Visitors of Virginia Tech and
to its Covered Employees.
SECTION 2.4.7. Other Provisions of the Code of Virginia. Other than as specified above, any other powers and authorities granted to
Virginia Tech pursuant to any other sections of the Code of Virginia, including
other provisions of the Act, are not affected by this Management Agreement or
the Board policies attached hereto as Exhibits A through F.
ARTICLE 3. AMENDMENTS TO, AND RIGHT AND POWER TO VOID OR
REVOKE, MANAGEMENT AGREEMENT.
SECTION 3.1. Amendments. Any change to or deviation from
this Management Agreement or the Board of Visitors policies attached hereto as
Exhibits A through F shall be reported to the Secretaries of Finance,
Administration, Education, and Technology and to the Chairmen of the Senate
Committee on Finance and the House Committee on Appropriations and shall be
posted on the University's website. The change or deviation shall become
effective unless one of the above persons notifies the University in writing
within 60 days that the change or deviation is substantial and material. Any substantial
and material change or deviation shall require the execution by the parties of
an amendment to this Management Agreement or a new Management Agreement
pursuant to the provisions of subsection D of § 23-38.88 and may lead to the
Governor declaring this Management Agreement to be void pursuant to subdivision
D 4 of § 23-38.88 of the Act.
SECTION 3.2. Right and Power to Void, Revoke, or Reinstate
Management Agreement.
SECTION 3.2.1. Governor. Pursuant to subdivision D 4 of §
23.38.88, and § 23-38.98, of the Act, if the Governor makes a written
determination that Virginia Tech is not in substantial compliance with the
terms of this Management Agreement or with the requirements of the Act in
general, (i) the Governor shall provide a copy of that written determination to
the Rector of the Board of Visitors of Virginia Tech and to the members of the
General Assembly, and (ii) Virginia Tech shall develop and implement a plan of
corrective action, satisfactory to the Governor, for purposes of coming into substantial
compliance with the terms of this Management Agreement and with the
requirements of the Act, as soon as practicable, and shall provide a copy of
such corrective action plan to the members of the General Assembly. If after a
reasonable period of time after the corrective action plan has been implemented
by Virginia Tech, the Governor determines that the institution is not yet in
substantial compliance with this Management Agreement or the requirements of
the Act, the Governor may void this Management Agreement. Upon the Governor
voiding this Management Agreement, Virginia Tech shall no longer be allowed to
exercise any restructured financial or operational authority pursuant to the
provisions of Subchapter 3 of the Act unless and until Virginia Tech has
entered into a subsequent management agreement with the Secretary or
Secretaries designated by the Governor or the voided Management Agreement is
reinstated by the General Assembly.
SECTION 3.2.2. General Assembly. As provided in subdivision
D 4 of § 23-38.88 of the Act, the General Assembly may reinstate a Management
Agreement declared void by the Governor. Pursuant to § 23-38.98 of the Act,
Virginia Tech's status as a Covered Institution governed by Subchapter 3 of the
Act may be revoked by an act of the General Assembly (i) if Virginia Tech fails
to meet the requirements of Subchapter 3 of the Act, or (ii) if Virginia Tech
fails to meet the requirements of this Management Agreement.
ARTICLE 4. GENERAL PROVISIONS.
SECTION 4.1. No Third-Party Beneficiary Status. Nothing in
this Agreement, express or implied, shall be construed as conferring any
third-party beneficiary status on any person or entity.
SECTION 4.2. Sovereign Immunity. Pursuant to subsection E
of § 23-38.88 of the Act, Virginia Tech and the members of its Board of
Visitors, officers, directors, employees, and agents shall be entitled to the
same sovereign immunity to which they would be entitled if Virginia Tech were
not governed by the Act; provided that the Virginia Tort Claims Act, (§ 8.01.195.1
et seq.) of the Code of Virginia, and its limitations on recoveries shall
remain applicable with respect to Virginia Tech.
SECTION 4.3. Term of Agreement. This Management Agreement
shall expire at midnight on June 30, 2010.
WHEREFORE, the foregoing Management Agreement has been
executed as of this 15th day of November, 2005, and shall become effective on
the effective date of legislation enacted into law providing for the terms of
such Agreement.
EXHIBIT A
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING
CAPITAL PROJECTS
THE BOARD OF VISITORS OF VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
POLICY GOVERNING CAPITAL PROJECTS
I. PREAMBLE.
The Restructured Higher Education Financial and
Administrative Operations Act (the Act), Chapter 4.10 of Title 23 of the Code
of Virginia, provides that, upon becoming a Covered Institution, the University
may be delegated the authority to establish its own system for undertaking the
implementation of its capital projects. In general, status as a Covered
Institution is designed to replace the post-authorization system of reviews, approvals,
policies and procedures carried out by a variety of central State agencies, and
also the traditional preauthorization approval process for projects funded
entirely with non-general funds and without any proceeds from State Tax
Supported Debt. The University's system for carrying out its capital outlay
process as a Covered Institution is to be governed by policies adopted by the
Board of Visitors. The following provisions of this Policy, together with the
Policy Governing the Procurement of Goods, Services, Insurance, and
Construction, and the Disposition of Surplus Materials adopted by the Board,
and the Rules Governing Procurement of Goods, Services, Insurance, and
Construction, which is attached as Attachment 1 to that Policy, constitute the
adopted Board of Visitors policies regarding the University’s capital projects,
whether funded by a state general fund appropriation, State Tax Supported Debt,
or funding from other sources. This Policy is intended to encompass and
implement the authority that may be granted to the University pursuant to
Subchapter 3 of the Act. Any other powers and authorities granted to the
University pursuant to the Appropriation Act, or any other sections of the Code
of Virginia, including other provisions of the Act and the University's
Enabling Legislation, are not affected by this Policy.
II. DEFINITIONS.
As used in this policy, the following terms shall have the
following meanings, unless the context requires otherwise:
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 of Title 23 of the Code of Virginia.
“Board of Visitors” or “Board” means the Board of Visitors
of Virginia Polytechnic Institute and State University.
“Capital Lease” means a lease that is defined as such
within Generally Accepted Accounting Principles pursuant to the pronouncement
of the Financial Accounting Standards Board.
“Capital Professional Services” means professional
engineering, architecture, land surveying and landscape architecture services
related to capital projects.
“Capital project(s)” means the acquisition of any interest
in land, including improvements on the acquired land at the time of
acquisition, new construction, improvements or renovations, and Capital Leases.
“Covered Institution” means, on and after the Effective
Date of its initial Management Agreement, a public institution of higher
education of the Commonwealth of Virginia that has entered into a management
agreement with the Commonwealth to be governed by the provisions of Subchapter
3 of the Act.
“Enabling Legislation” means those chapters, other than
Chapter 4.10, of Title 23 of the Code of Virginia, as amended, creating,
continuing, or otherwise setting forth the powers, purposes, and missions of
the individual public institutions of higher education of the Commonwealth.
“Major Capital Project(s)” means the acquisition of any
interest in land, including improvements on the acquired land at the time of
acquisition, new construction of 5,000 square feet or greater or costing $1
million or more, improvements or renovations of $1 million or more, and Capital
Leases.
“State Tax Supported Debt” means bonds, notes, or other
obligations issued under Article X, Section 9(a), 9(b), or 9(c), or 9(d), if
the debt service payments are made or ultimately are to be made from general
government funds, as defined in the December 20, 2004 Report to the Governor
and General Assembly of the Debt Capacity Advisory Committee or as that
definition is amended from time to time.
“University” means Virginia Polytechnic Institute and State University, consisting of the University Division (State Agency 208) and Virginia Cooperative Extension and the Agricultural Experiment Station Division (State
Agency 229).
III. SCOPE OF POLICY.
This Policy applies to the planning and budget development
for capital projects, capital project authorization, and the implementation of
capital projects, whether funded by a general fund appropriation of the General
Assembly, proceeds from State Tax Supported Debt, or funding from other
sources.
This Policy provides guidance for 1) the process for
developing one or more capital project programs for the University, 2)
authorization of new capital projects, 3) procurement of Capital Professional
Services and construction services, 4) design reviews and code approvals for
capital projects, 5) environmental impact requirements, 6) building
demolitions, 7) building and land acquisitions, 8) building and land
dispositions, 9) project management systems, and 10) reporting requirements.
IV. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties
and responsibilities set forth in, and for the appropriate implementation of,
this Policy. Consistent with this full and ultimate accountability, however,
the Board may, pursuant to its legally permissible procedures, specifically
delegate either herein or by separate Board resolution the duties and responsibilities
set forth in this Policy to a person or persons within the University, who,
while continuing to be fully accountable for such duties and responsibilities,
may further delegate the implementation of those duties and responsibilities
pursuant to the University’s usual delegation policies and procedures.
V. CAPITAL PROGRAM.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall adopt a system for developing one or more
capital project programs that defines or define the capital needs of the
University for a given period of time consistent with the University’s
published Master Plan. This process may or may not mirror the Commonwealth’s
requirements for capital plans. The Board of Visitors shall approve the program
for Major Capital Projects. Major Capital Projects that are to be funded
entirely or in part by a general fund appropriation of the General Assembly or
proceeds from State Tax Supported Debt shall follow the Commonwealth’s
requirements for capital plans. The Board may approve amendments to the program
for Major Capital Projects annually or more often if circumstances warrant. It
shall be University policy that each capital project program shall meet the
University’s mission and institutional objectives, and be appropriately
authorized by the University. Moreover, it shall be University policy that each
capital project shall be of a size and scope to provide for the defined program
needs, designed in accordance with all applicable building codes and handicapped
accessibility standards as well as the University’s design guidelines and
standards, and costed to reflect current costs and escalated to the mid-point
of anticipated construction.
VI. AUTHORIZATION OF CAPITAL PROJECTS.
The Board of Visitors shall authorize the initiation of
each Major Capital Project by approving its size, scope, budget, and funding.
The President, acting through the Executive Vice President and Chief Operating
Officer, shall adopt procedures for approving the size, scope, budget and funding
of all other capital projects. Major Capital Projects that are to be funded
entirely or in part by a general fund appropriation of the General Assembly or
proceeds from State Tax Supported Debt, shall require both Board of Visitors
approval and those preappropriation approvals of the State’s governmental
agencies then applicable, and shall follow the State’s process for capital
budget requests.
It shall be the policy of the University that the
implementation of capital projects shall be carried out so that the capital
project as completed is the capital project approved by the Board for Major
Capital Projects and according to the procedures adopted by the President,
acting through the Executive Vice President and Chief Operating Officer, for
all other capital projects. The President, acting through the Executive Vice
President and Chief Operating Officer, shall ensure strict adherence to this
requirement. Accordingly, the budget, size and scope of a capital project shall
not be materially changed beyond the plans and justifications that were the
basis for the capital project's approval, either before or during construction,
unless approved in advance as described above. Minor changes shall be
permissible if they are determined by the President, acting through the
Executive Vice President and Chief Operating Officer, to be justified. Major
Capital Projects may be submitted for Board of Visitors authorization at any
time but must include a statement of urgency if not part of the approved Major
Capital Project program.
VII. PROCUREMENT OF CAPITAL PROFESSIONAL SERVICES AND
CONSTRUCTION SERVICES.
It shall be the policy of the University that procurements
shall result in the purchase of high quality services and construction at
reasonable prices and shall be consistent with the Policy Governing the
Procurement of Goods, Services, Insurance, and Construction, and the
Disposition of Surplus Materials adopted by the Board, and with the Rules
Governing Procurement of Goods, Services, Insurance, and Construction, which is
attached as Attachment 1 to that Policy. Specifically, the University is
committed to:
A. Seeking competition to the maximum practical degree,
taking into account the size of the anticipated procurement, the term of the
resulting contract and the likely extent of competition;
B. Conducting all procurements in a fair and impartial
manner and avoiding any impropriety or the appearance of any impropriety
prohibited by State law or University policy;
C. Making procurement rules clear in advance of any competition;
D. Providing access to the University’s business to all
qualified vendors, firms and contractors, with no potential bidder or offeror
excluded arbitrarily or capriciously, while allowing the flexibility to engage
in cooperative procurements and to meet special needs of the University;
E. Including in contracts of more than $10,000 the
contractor’s agreement not to discriminate against employees or applicants
because of race, religion, color, sex, national origin, age, disability or
other basis prohibited by State law except where there is a bona fide
occupational qualification reasonably necessary to the contractor’s normal
operations; and
F. Providing for a non-discriminatory procurement process,
and including appropriate and lawful provisions to effectuate fair and
reasonable consideration of women-owned, minority-owned and small businesses
and to promote and encourage a diversity of suppliers.
The President, acting through the Executive Vice President
and Chief Operating Officer, is authorized to develop implementing procedures
for the procurement of Capital Professional Services and construction services
at the University. The procedures shall implement this Policy and provide for:
A. A system of competitive negotiation for Capital
Professional Services, including a procedure for expedited procurement of
Capital Professional Services under $50,000, pursuant to (i) subdivisions 1, 2,
and 3 a of the defined term "competitive negotiation" in Rule 4 of
the Rules Governing Procurement of Goods, Services, Insurance, and
Construction, and (ii) § 4-5.06 of the 2004-2006 Appropriation Act;
B. A prequalification procedure for contractors or
products;
C. A procedure for special construction contracting
methods, including but not limited to design-build and construction management
contracts; and
D. A prompt payment procedure.
The University also may enter into cooperative arrangements
with other private or public health or educational institutions, healthcare
provider alliances, purchasing organizations or state agencies where, in the
judgment of the University, the purposes of this Policy will be furthered.
VIII. DESIGN REVIEWS AND CODE APPROVALS.
The Board of Visitors shall review the design of all Major
Capital Projects and shall provide final Major Capital Project authorization
based on the size, scope and cost estimate provided with the design. Unless
stipulated by the Board of Visitors at the design review, no further design
reviews shall be required. For all capital projects other than Major Capital
Projects, the President, acting through the Executive Vice President and Chief
Operating Officer, shall adopt procedures for design review and project
authorization based on the size, scope and cost estimate provided with the
design. It shall be the University’s policy that all capital projects shall be
designed and constructed in accordance with applicable Virginia Uniform Statewide Building Code (VUSBC) standards and the applicable accessibility code.
The President, acting through the Executive Vice President and
Chief Operating Officer, shall designate a Building Official responsible for
building code compliance by either (i) hiring an individual to be the
University Building Official, or (ii) continuing to use the services of the
Department of General Services, Division of Engineering and Buildings, to
perform the Building Official function. If option (i) is selected, the
individual hired as the University Building Official shall be a full-time
employee, a registered professional architect or engineer, and certified by the
Department of Housing and Community Development to perform this Building
Official function. The University Building Official shall issue building
permits for each capital project required by the VUSBC to have a building
permit, and shall determine the suitability for occupancy of, and shall issue
certifications for building occupancy for, all capital projects requiring such
certification. Prior to issuing any such certification, this individual shall
ensure that the VUSBC and accessibility requirements are met for that capital
project and that such capital project has been inspected by the State Fire
Marshal or his designee. When serving as the University Building Official, such
individual shall organizationally report directly and exclusively to the Board
of Visitors. If the University hires its own University Building Official, it
shall fulfill the code review requirement by maintaining a review unit
supported by resources and staff who are certified by the Department of Housing
and Community Development in accordance with § 36-137 of the Code of Virginia,
for such purpose and who shall review plans, specifications and documents for
compliance with building codes and standards and perform required inspections
of work in progress and the completed capital project. No individual licensed
professional architect or engineer hired or contracted with to perform these
functions shall also perform other building code-related design, construction,
facilities-related project management or facilities management functions for
the University on the same capital project.
IX. ENVIRONMENTAL IMPACT REPORTS.
It shall be the policy of the University to assess the
environmental, historic preservation, and conservation impacts of all capital
projects and to minimize and otherwise mitigate all adverse impacts to the
extent practicable. The University shall develop a procedure for the
preparation and approval of environmental impact reports for capital projects,
in accordance with State environmental, historic preservation, and conservation
requirements generally applicable to capital projects otherwise meeting the
definition of Major Capital Projects but, pursuant to § 23-38.109 C 1 of the
Act, with a cost of $300,000 or more.
X. BUILDING DEMOLITIONS.
It shall be the policy of the University to consider the
environmental and historical aspects of any proposed demolitions. The Board of
Visitors shall be responsible for approving demolition requests. The University
shall develop a procedure for the preparation and review of demolition
requests, including any necessary reviews by the Department of Historic
Resources and the Art and Architectural Review Board in accordance with State
historic preservation requirements generally applicable to capital projects in
the Commonwealth. Further, for any property that was acquired or constructed
with funding from a general fund appropriation of the General Assembly or from
proceeds from State Tax Supported Debt, general laws applicable to State owned
property shall apply.
XI. BUILDING OR LAND ACQUISITIONS.
It is the policy of the University that capital projects
involving building or land acquisition shall be subjected to thorough inquiry
and due diligence prior to closing on the acquisition of such real property.
The President, acting through the Executive Vice President and Chief Operating
Officer, shall ensure that the project management system implemented pursuant
to Section XIII below provides for a review and analysis of all pertinent
matters relating to the acquisition of buildings and land as any prudent
purchaser would perform to the end that any building or land acquired by the
University shall be suitable for its intended purpose, that the acquisition can
be made without substantial risk of liability to the University and that the
cost of the real property to be acquired, together with any contemplated
development thereof, shall be such that compliance with the provisions of
Section VI of this Policy is achieved. In addition, the President, acting
through the Executive Vice President and Chief Operating Officer, shall ensure
that, where feasible and appropriate to do so, the following specific policies
pertaining to the acquisition of buildings or land for capital projects are
carried out.
A. Environmental and Land Use Considerations.
It is the policy of the University to reasonably cooperate
with each locality affected by the acquisition. Such cooperation shall include
but not be limited to furnishing any information that the locality may
reasonably request and reviewing any requests by the locality with regard to
any such acquisition. The University shall consider the zoning and
comprehensive plan designation by the locality of the building or land and
surrounding parcels, as well as any designation by State or federal agencies of
historically or archeologically significant areas on the land. Nothing herein
shall be construed as requiring the University to comply with local zoning laws
and ordinances.
B. Infrastructure and Site Condition.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall ensure that, in the case of capital projects
involving the acquisition of buildings or land, the project management systems
implemented under Section XIII below provide for a review of the following matters
prior to acquisition of the building or land: that any land can be developed
for its intended purpose without extraordinary cost; that an environmental
engineer has been engaged by the University to provide an assessment of any
environmental conditions on the land; that there is adequate vehicular ingress
and egress to serve the contemplated use of the building or land; that
utilities and other services to the land are adequate or can reasonably be
provided or have been provided in the case of building acquisitions; and that
the condition and grade of the soils have been examined to determine if any
conditions exist that would require extraordinary site work or foundation
systems.
C. Title and Survey.
A survey shall be prepared for any real property acquired,
and an examination of title to the real property shall be conducted by a
licensed attorney or, in the alternative, a commitment for title insurance
shall be procured from a title insurance company authorized to do business in
the Commonwealth. Based upon the survey and title examination or report, the
President, acting through the Executive Vice President and Chief Operating
Officer, shall conclude, prior to acquisition of the real property, that title
thereto will be conveyed to the University in fee simple, free and clear of all
liens, encumbrances, covenants, restrictions, easements or other matters that
may have a significant adverse effect upon the University's ability to own,
occupy, convey or develop the real property.
D. Appraisal.
An appraisal shall be conducted of the real property to be
acquired to determine its fair market value and the consistency of the fair
market value with the price agreed upon by the University.
XII. BUILDING OR LAND DISPOSITIONS.
The Board of Visitors shall approve the disposition of any
building or land. Disposition of land or buildings, the acquisition or
construction of which was funded entirely or in part by a general fund
appropriation of the General Assembly or proceeds from State Tax Supported
Debt, shall require both Board of Visitors approval and other approvals in
accordance with general law applicable to State-owned property and with the
University’s Enabling Legislation.
XIII. PROJECT MANAGEMENT SYSTEMS.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall implement one or more systems for the
management of capital projects for the University. The systems may include the
delegation of project management authority to appropriate University officials,
including a grant of authority to such officials to engage in further
delegation of authority as the President, acting through the Executive Vice
President and Chief Operating Officer, deems appropriate.
The project management systems for capital projects shall
be designed to ensure that such projects comply with the provisions of this
Policy and other Board of Visitors policies applicable to closely related
subjects such as selection of architects or policies applicable to University
buildings and grounds.
The project management systems may include one or more
reporting systems applicable to capital projects whereby University officials
responsible for the management of such projects provide appropriate and timely
reports to the President, acting through the Executive Vice President and Chief
Operating Officer, on the status of such projects during construction.
XIV. REPORTING REQUIREMENTS.
In addition to complying with any internal reporting
systems contained in the University’s project management systems, as described
in Section XIII above, the University shall comply with State reporting
requirements for those Major Capital Projects funded entirely or in part by a
general fund appropriation by the General Assembly or State Tax Supported Debt.
Additionally, if any capital project constructs improvements on land, or
renovates property, that originally was acquired or constructed in whole or in
part with a general fund appropriation for that purpose or proceeds from State
Tax Supported Debt, and such improvements or renovations are undertaken
entirely with funds not appropriated by the General Assembly and, if the cost
of such improvements or renovations is reasonably expected to exceed two
million dollars, the decision to undertake such improvements or renovations
shall be communicated as required by § 23-38.109 C 3 of the Act. As a matter of
routine, the President, acting through the Executive Vice President and Chief
Operating Officer, shall report to the Department of General Services on the
status of such capital projects at the initiation of the project, prior to the
commencement of construction, and at the time of acceptance of any such capital
project.
EXHIBIT B
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING LEASES OF REAL PROPERTY
THE BOARD OF VISITORS OF VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
POLICY GOVERNING LEASES OF REAL PROPERTY
I. PREAMBLE.
In 1996 the Board of Visitors adopted a Policy Statement
Governing Exercise of Autonomy in Leases of Property for certain leases entered
into by the University, which was amended in 2003 as the Policy Statement
Governing Exercise of Autonomy in Operating and Capital Leases of Property. The
Restructured Higher Education Financial and Administrative Operations Act (the
Act), Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of the Code of Virginia,
provides that, upon becoming a Covered Institution, Virginia Polytechnic
Institute and State University may have the authority to establish its own
system for the leasing of real property. The University’s system for
implementing this authority is to be governed by policies adopted by the Board
of Visitors. The following provisions of this Policy constitute the adopted
Board of Visitors policies regarding Leases of real property entered into by
the University.
This Policy is intended to cover the authority that may be
granted to the University pursuant to Subchapter 3 of the Act. Any other powers
and authorities granted to the University pursuant to the Appropriation Act, or
any other sections of the Code of Virginia, including other provisions of the
Act and the University's Enabling Legislation, as defined in § 23-38.89 of the
Act, are not affected by this Policy.
II. DEFINITIONS.
The following words and terms, when used in this Policy,
shall have the following meaning unless the context clearly indicates
otherwise:
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of
the Code of Virginia.
“Board of Visitors” means the Board of Visitors of Virginia Polytechnic Institute and State University.
“Capital Lease” means a lease that is defined as such
within Generally Accepted Accounting Principles pursuant to the pronouncement
of the Financial Accounting Standards Board.
“Covered Institution” means a public institution of higher
education of the Commonwealth of Virginia that has entered into a Management
Agreement with the Commonwealth to be governed by Subchapter 3 of the Act.
“Expense Lease” means an Operating Lease of real property
under the control of another entity to the University.
“Income Lease” means an Operating Lease of real property
under the control of the University to another entity.
“Lease” or “Leases” means any type of lease involving real
property.
“Operating Lease” means any lease involving real property,
or improvements thereon that is not a Capital Lease.
“University” means Virginia Polytechnic Institute and State University, consisting of the University Division (State Agency 208) and Virginia Cooperative Extension and the Agriculture Experiment Station Division (State
Agency 229).
III. SCOPE OF POLICY.
This Policy provides guidance for the implementation of all
University Leases.
IV. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties
and responsibilities set forth in, and for the appropriate implementation of,
this Policy. Consistent with this full and ultimate accountability, however,
the Board may, pursuant to its legally permissible procedures, specifically
delegate either herein or by separate Board resolution the duties and
responsibilities set forth in this Policy to a person or persons within the
University, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the University’s usual delegation policies and
procedures.
V. REQUIREMENTS FOR LEASES.
A. Factors to Be Considered When Entering into Leases.
All Leases shall be for a purpose consistent with the
mission of the University. The decision to enter into a Lease shall be further
based upon cost, demonstrated need, compliance with this Policy, consideration
of all costs of occupancy, and a determination that the use of the property to
be leased is necessary and is efficiently planned. Leases shall also conform to
the space planning procedures that may be adopted by the President, acting
through the Executive Vice President and Chief Operating Officer, to ensure
that the plan for the space to be leased is consistent with the purpose for
which the space is intended.
B. Competition to Be Sought to Maximum Practicable Degree.
Competition shall be sought to the maximum practicable
degree for all Leases. The President, acting through the Executive Vice
President and Chief Operating Officer, is authorized to ensure that Leases are
procured through competition to the maximum degree practicable and to determine
when, under guidelines that may be developed and adopted by the President,
acting through the Executive Vice President and Chief Operating Officer, it is
impractical to procure Leases through competition.
C. Approval of Form of Lease Required.
The form of Leases entered into by the University shall be
approved by the University’s legal counsel.
D. Execution of Leases.
All Leases entered into by the University shall be executed
only by those University officers or persons authorized by the President or the
Executive Vice-President and Chief Operating Officer, or as may subsequently be
authorized by the Board of Visitors, and subject to any such limits or
conditions as may be prescribed in the delegation of authority. Subject to the
University’s Policy Governing Capital Projects adopted by the Board as part of
the Management Agreement between the Commonwealth and the University, no other
University approval shall be required for leases or leasing, nor state approval
required except in the case of leases of real property as may be governed by
general state law in accordance with § 23-38.109 and § 23- 38.112 of the Act.
E. Capital Leases.
The Board of Visitors shall authorize the initiation of
Capital Leases pursuant to the authorization process included in the Policy
Governing Capital Projects adopted by the Board as part of the Management
Agreement between the Commonwealth and the University.
F. Compliance with Applicable Law.
All Leases of real property by the University shall be
consistent with any requirements of law that are contained in the Act or are
otherwise applicable.
G. Certification of Occupancy.
All real property covered by an Expense Lease or leased by
the University under a Capital Lease shall be certified for occupancy by the
appropriate public body or building official.
EXHIBIT C
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING
INFORMATION TECHNOLOGY
THE BOARD OF VISITORS OF VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
POLICY GOVERNING INFORMATION TECHNOLOGY
I. PREAMBLE.
The Restructured Higher Education Financial and
Administrative Operations Act (the Act), Chapter 4.10 (§ 23-38.88 et seq.) of
Title 23 of the Code of Virginia, provides, inter alia, that public
institutions of higher education in the Commonwealth of Virginia that have
entered into a Management Agreement with the Commonwealth “may be exempt from
the provisions governing the Virginia Information Technologies Agency, Chapter
20.1 (§ 2.2-2005 et seq.) of Title 2.2. of the Code of Virginia, and the
provisions governing the Information Technologies [sic] Investment Board,
Article 20 of Chapter 24 (§ 2.2-2457 et seq.) of Title 2.2; provided, however,
that the governing body of . . . [such] institution shall adopt, and . . .
[such] institution shall comply with, policies” that govern the exempted
provisions. See § 23-38.111 of the Code of Virginia. This Information
Technology Policy shall become effective upon the effective date of a Management
Agreement authorized by subsection D of § 23-38.88 and § 23-38.97 of the Act
between the Commonwealth and the University that incorporates this Policy.
The Board of Visitors of Virginia Polytechnic Institute and
State University is authorized to adopt this Information Technology Policy
pursuant to § 23-38.111 of the Code of Virginia.
II. DEFINITIONS.
As used in this Information Technology Policy, the
following terms have the following meanings, unless the context requires
otherwise:
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of
the Code of Virginia.
“Board of Visitors” or “Board” means the Board of Visitors
of Virginia Polytechnic Institute and State University.
“Information Technology” or “IT” shall have the same
meaning as set forth in § 2.2-2006 of the Code of Virginia, as it currently
exists and from time to time may be amended.
“Major information technology project” or “major IT
project” shall have the same meaning as set forth in § 2.2-2006 of the Code of
Virginia, as it currently exists and from time to time may be amended.
“Policy” means this Information Technology Policy adopted
by the Board of Visitors.
“State Chief Information Officer” or “State CIO” means the
Chief Information Officer of the Commonwealth of Virginia.
“University” means Virginia Polytechnic Institute and State University, consisting of the University Division (State Agency 208) and Virginia Cooperative Extension and the Agriculture Experiment Station Division (State
Agency 229).
III. SCOPE OF POLICY.
This Policy is intended to cover and implement the
authority that may be granted to Virginia Polytechnic Institute and State
University pursuant to Subchapter 3 (§ 23-38.91 et seq.) of the Act. This
Policy is not intended to affect any other powers and authorities granted to
the University pursuant to the Appropriation Act and the Code of Virginia,
including other provisions of the Act or the University’s enabling legislation
as that term is defined in § 23-38.89 of the Act.
This Policy shall govern the University’s information
technology strategic planning, expenditure reporting, budgeting, project
management, infrastructure, architecture, ongoing operations, security, and
audits conducted within, by, or on behalf of the University. Upon the effective
date of a Management Agreement between the Commonwealth and the University, as
authorized by subsection D of § 23-38.88 and § 23-38.111 of the Code of
Virginia, therefore, the University shall be exempt from those provisions of
the Code of Virginia, including those provisions of Chapter 20.1 (§ 2.2-2005 et
seq.) (Virginia Information Technologies Agency) and of Article 20 (§ 2.2- 2457
et seq.) (Information Technology Investment Board) of Chapter 24 of Title 2.2
of the Code of Virginia, that otherwise would govern the University’s
information technology strategic planning, expenditure reporting, budgeting,
project management, infrastructure, architecture, ongoing operations, security,
and audits conducted within, by, or on behalf of the University; provided,
however, that the University still shall be subject to those provisions of
Chapter 20.1 (§ 2.2-2005 et seq.) (Virginia Information Technologies Agency)
and of Article 20 (§ 2.2-2457 et seq.) (Information Technology Investment
Board) of Chapter 24 of Title 2.2 of the Code of Virginia that are applicable
to public institutions of higher education of the Commonwealth and that do not
govern information technology strategic planning, expenditure reporting,
budgeting, project management, infrastructure, architecture, ongoing
operations, security, and audits within, by, or on behalf of the University.
The procurement of information technology and
telecommunications goods and services, including automated data processing
hardware and software, shall be governed by the Policy Governing the
Procurement of Goods, Services, Insurance, and Construction, and the
Disposition of Surplus Materials approved by the Board, and the Rules Governing
Procurement of Goods, Services, Insurance, and Construction that are
incorporated in and attached to that Policy.
IV. GENERAL PROVISIONS.
A. Board of Visitors Accountability and Delegation of
Authority.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties
and responsibilities set forth in, and for the appropriate implementation of,
this Policy. Consistent with this full and ultimate accountability, however,
the Board may, pursuant to its legally permissible procedures, specifically
delegate either herein or by separate Board resolution the duties and
responsibilities set forth in this Policy to a person or persons within the
University, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the University’s usual delegation policies and
procedures.
B. Strategic Planning.
The President, acting through the Vice President for
Information Technology and Chief Information Officer, shall be responsible for
overall IT strategic planning at the University, which shall be linked to and
in support of the University’s overall strategic plan. At least 45 days prior
to each fiscal year, the President, acting through the Vice President for
Information Technology and Chief Information Officer, shall make available the
University’s IT strategic plan covering the next fiscal year to the State CIO
for his review and comment with regard to the consistency of the University’s
plan with the intent of the currently published overall five-year IT strategic
plan for the Commonwealth developed by the State CIO pursuant to § 2.2-2007 of
the Code of Virginia and into which the University’s plan is to be incorporated.
C. Expenditure Reporting and Budgeting.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall approve and be responsible for overall IT
budgeting and investments at the University. The University’s IT budget and
investments shall be linked to and in support of the University’s IT strategic
plan, and shall be consistent with general University policies, the
Board-approved annual operating budget, and other Board approvals for certain
procurements. By October 1 of each year, the President, acting through the
Executive Vice President and Chief Operating Officer, shall make available to
the State CIO and the Information Technology Investment Board a report on the
previous fiscal year’s IT expenditures. The University shall be specifically
exempt from:
Subdivision A 4 of § 2.2-2007 of the Code of Virginia (review by the State CIO of IT budget requests), as it currently exists and from
time to time may be amended;
§§ 2.2-2022 through 2.2-2024 of the Code of Virginia (Virginia Technology Infrastructure Fund), as they currently exist and from time
to time may be amended; and
Any other substantially similar provision of the Code of Virginia governing IT expenditure reporting and budgeting, as it currently exists and from
time to time may be amended.
D. Project Management.
Pursuant to § 23-38.111 of the Act, the Board shall adopt
the project management policies, standards, and guidelines developed by the
Commonwealth or those based upon industry best practices for project management
as defined by leading IT consulting firms, leading software development firms,
or a nationally-recognized project management association, appropriately
tailored to the specific circumstances of the University. Copies of the Board’s
policies, standards, and guidelines shall be made available to the Information
Technology Investment Board.
The President, acting through the appropriate designee,
shall oversee the management of all University IT projects. IT projects may
include, but are not limited to, upgrades to network infrastructure, provision
of technology to support research, database development, implementation of new
applications, and development of IT services for students, faculty, staff, and
patients. Day-to-day management of projects shall be the responsibility of
appointed project directors and shall be in accord with the project management
policies, standards, and guidelines adopted by the Board, as amended and
revised from time to time.
On a quarterly basis, the President, acting through the
Vice President for Information Technology and Chief Information Officer, shall
report to the Information Technology Investment Board on the budget, schedule,
and overall status of the University’s major IT projects. This requirement
shall not apply to research projects, research initiatives, or instructional
programs.
The President, acting through the Vice President for
Information Technology and Chief Information Officer in cooperation with the
Provost and Executive Vice President and Chief Operating Officer, shall be
responsible for decisions to substantially alter a project’s scope, budget, or
schedule after initial approval.
The University shall be specifically exempt from:
§ 2.2-2008 of Title 2.2 of the Code of Virginia (additional
duties of the State CIO relating to project management) as it currently exists
and from time to time may be amended;
§§ 2.2-2016 through 2.2-2021 of Title 2.2 of the Code of
Virginia (Division of Project Management) as they currently exist and from time
to time may be amended; and
Any other substantially similar provision of the Code of Virginia governing IT project management, as it currently exists or from time to time may
be amended.
The State CIO and the Information Technology Investment
Board shall continue to have the authority regarding project suspension and
termination as provided in § 2.2-2015 and in subdivision A 3 of § 2.2-2458,
respectively, and the State CIO and the Information Technology Investment Board
shall continue to provide the University with reasonable notice of, and a
reasonable opportunity to correct, any identified problems before a project is
terminated.
E. Infrastructure, Architecture, Ongoing Operations, and
Security.
Pursuant to § 23-38.111 of the Act, the Board shall adopt
the policies, standards, and guidelines related to IT infrastructure,
architecture, ongoing operations, and security developed by the Commonwealth or
those of nationally-recognized associations, appropriately tailored to the
specific circumstances of the University. Copies of the policies shall be made
available to the Information Technology Investment Board.
The President, acting through the Vice President for
Information Technology and Chief Information Officer, in cooperation with the
Provost and Executive Vice President and Chief Operating Officer, shall be
responsible for implementing such policies, standards, and guidelines adopted
by the Board, as amended and revised from time to time. For purposes of
implementing this Policy, the President shall appoint an existing University
employee to serve as a liaison between the University and the State CIO.
F. Audits.
Pursuant to § 23-38.111 of the Act, the Board shall adopt
the policies, standards, and guidelines developed by the Commonwealth or those
based upon industry best practices for project auditing as defined by leading
IT experts, including consulting firms, or a nationally recognized project
auditing association, appropriately tailored to the specific circumstances of
the University, which provide for Independent Validation and Verification
(IV&V) of the University’s major IT projects. Copies of the policies,
standards, and guidelines, as amended and revised from time to time, shall be
made available to the Information Technology Investment Board.
Audits of IT strategic planning, expenditure reporting,
budgeting, project management, infrastructure, architecture, ongoing
operations, and security, shall also be the responsibility of the University’s
Internal Audit Department and the Auditor of Public Accounts.
EXHIBIT D
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING
THE PROCUREMENT OF GOODS, SERVICES,
INSURANCE, AND CONSTRUCTION AND
THE DISPOSITION OF SURPLUS MATERIALS
THE BOARD OF VISITORS OF VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
POLICY GOVERNING THE PROCUREMENT OF
GOODS, SERVICES, INSURANCE AND CONSTRUCTION
AND THE DISPOSITION OF SURPLUS MATERIALS
I. PREAMBLE.
A. Subchapter 3 of the Restructured Higher Education
Financial and Administrative Operations Act (the Act), Chapter 4.10 (§ 23-38.88
et seq.) of Title 23 of the Code of Virginia, provides that Virginia
Polytechnic Institute and State University, upon becoming a Covered
Institution, shall be authorized to establish its own system for the
procurement of goods, services, insurance, and construction, and for the
independent disposition of surplus materials by public or private transaction.
B. The Act provides that a Covered Institution shall comply
with policies adopted by its Board of Visitors for the procurement of goods,
services, insurance, and construction, and the disposition of surplus
materials. The provisions of this Policy set forth below, together with the
Rules Governing Procurement of Goods, Services, Insurance, and Construction
attached to this Policy as Attachment 1, constitute the adopted Board of
Visitors policies required by the Act regarding procurement of goods, services,
insurance, and construction, and the disposition of surplus materials by the
University.
C. This Policy is intended to cover the authority that may
be granted to the University pursuant to Subchapter 3 of the Act. Any other
powers and authorities granted to the University pursuant to any other sections
of the Code of Virginia, including other provisions of the Act, the
Appropriation Act, and the University's Enabling Legislation are not affected
by this Policy.
II. DEFINITIONS.
As used in this Policy, the following terms shall have the
following meanings, unless the context requires otherwise:
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of
the Code of Virginia.
“Agreement” means “Management Agreement.”
“Board of Visitors” or “Board” means the Board of Visitors
`of Virginia Polytechnic Institute and State University.
“Covered Institution” means, on and after the Effective
Date of its initial Management Agreement with the Commonwealth, a public
institution of higher education of the Commonwealth of Virginia that has
entered into a Management Agreement with the Commonwealth to be governed by the
provisions of Subchapter 3 of the Act.
“Effective Date” means the effective date of the Management
Agreement.
“Enabling Legislation” means those chapters, other than
Chapter 4.10, of Title 23 of the Code of Virginia, as amended, creating,
continuing, or otherwise setting forth the powers, purposes, and missions of
the individual public institutions of higher education of the Commonwealth.
“Goods” means all material, equipment, supplies, and
printing, including information technology and telecommunications goods such as
automated data processing hardware and software.
“Management Agreement” means the agreement required by
subsection D of § 23-38.88 of the Code of Virginia, between the Commonwealth of
Virginia and Virginia Polytechnic Institute and State University. “Rules” means
the “Rules Governing Procurement of Goods, Services, Insurance, and
Construction” attached to this Policy as Attachment 1.
“Services” as used in this Policy 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, and shall include both professional services, which
include the practice of accounting, actuarial services, law, dentistry,
medicine, optometry, and pharmacy, and nonprofessional services, which include
any service not specifically identified as professional services.
“Surplus materials” means personal property including, but
not limited to, materials, supplies, equipment and recyclable items, that are
determined to be surplus by the University.
“University” means Virginia Polytechnic Institute and State University, consisting of the University Division (State Agency 208) and Virginia Cooperative Extension and the Agricultural Experiment Station Division (State
Agency 229).
III. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties
and responsibilities set forth in, and for the appropriate implementation of,
this Policy. Consistent with this full and ultimate accountability, however,
the Board may, pursuant to its legally permissible procedures, specifically
delegate either herein or by separate Board resolution the duties and
responsibilities set forth in this Policy to a person or persons within the
University, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the University’s usual delegation policies and
procedures.
IV. GENERAL PROVISIONS.
A. Adoption of This Policy and Continued Applicability of
Other Board of Visitors' Procurement Policies.
The University has had decentralization and pilot program
autonomy in many procurement functions and activities since the Appropriation
Act of 1994. The Act extends and reinforces the autonomy previously granted to
the University in Item 330 E of the 1994 Appropriation Act. This Policy
therefore is adopted by the Board of Visitors to enable the University to
develop a procurement system, as well as a surplus materials disposition system
for the University as a whole. Any University electronic procurement system
shall integrate or interface with the Commonwealth’s electronic procurement
system.
This Policy shall be effective on the Effective Date of the
University’s initial Management Agreement with the Commonwealth. The
implementing policies and procedures adopted by the President, acting through
the Executive Vice President and Chief Operating Officer or his designee, to
implement this Policy shall continue to be subject to any other policies
adopted by the Board of Visitors affecting procurements at the University,
including policies regarding the nature and amounts of procurements that may be
undertaken without the approval of the Board of Visitors, or of the President,
acting through the Executive Vice President and Chief Operating Officer.
B. Scope and Purpose of University Procurement Policies.
This Policy shall apply to procurements of goods, services,
insurance, and construction. It shall be the policy of the University that
procurements conducted by the University result in the purchase of high quality
goods and services at reasonable prices, and that the University be free, to
the maximum extent permitted by law and this Policy, from constraining policies
that hinder the ability of the University to do business in a competitive
environment. This Policy, together with the Rules Governing Procurement of
Goods, Services, Insurance, and Construction attached to this Policy as
Attachment 1, shall apply to all procurements undertaken by the University,
regardless of the source of funds.
C. Collaboration, Communication, and Cooperation with the
Commonwealth.
The University is committed to developing, maintaining, and
sustaining collaboration, communication, and cooperation with the Commonwealth
regarding the matters addressed in this Policy, particularly with the Offices
of the Secretaries of Administration and Technology, the Department of General
Services, and the Virginia Information Technologies Agency. Identifying
business objectives and goals common to both the University and the
Commonwealth and the mechanisms by which such objectives and goals may be
jointly pursued and achieved are among the desired outcomes of such
collaboration, communication, and cooperation.
D. Commitment to Statewide Contracts, Electronic
Procurement, and SWAM Participation and Use.
The University is committed to maximizing its internal
operational efficiencies, economies of scale among institutions of higher
education, and the leveraged buying power of the Commonwealth as a whole.
Consistent with this commitment, the University:
i) May purchase from and participate in all statewide
contracts for goods and services, including information technology goods and
services, except that the University shall purchase from and participate in
contracts for communications services and telecommunications facilities entered
into by the Virginia Information Technologies Agency pursuant to § 2.2-2011 of
the Code of Virginia unless an exception is provided in the Appropriation Act
or by other law, and provided that orders not placed through statewide
contracts shall be processed directly or by integration or interface through
the Commonwealth’s electronic procurement system;
ii) Shall use directly or by integration or interface the
Commonwealth’s electronic procurement system and comply with the business plan
for the Commonwealth’s electronic procurement system, as modified by an
agreement between the Commonwealth and the University, which agreement shall
not be substantially different than the agreement attached to this Policy as
Attachment 2; and
iii) Shall adopt a small, woman-owned, and minority-owned
(SWAM) business program that is consistent with the Commonwealth’s SWAM
program.
E. Implementation.
To effect its implementation under the Act, and if the
University remains in continued substantial compliance with the terms and
conditions of this Management Agreement with the Commonwealth pursuant to §
23-38.88(D)(4) and the requirements of Chapter 4.10 of the Act, the
University’s procurement of goods, services, insurance, and construction, and
the disposition of surplus materials shall be exempt from the Virginia Public
Procurement Act, Chapter 43 (§ 2.2-4300 et seq.) of Title 2.2, except §
2.2-4342 and §§ 2.2-4367 through 2.2-4377; the oversight of the Virginia
Information Technologies Agency, Chapter 20.1 (§ 2.2-2005 et. seq.) of Title
2.2, and the Information Technology Investment Board, Article 20 (§ 2.2-2457 et
seq.) of Chapter 24 of Title 2.2; the state agency requirements regarding
disposition of surplus materials and distribution of proceeds from the sale or
recycling of surplus materials in §§ 2.2-1124 and 2.2-1125; the requirement to purchase
from the Department for the Blind and Vision Impaired (VIB) (§ 2.2-1117); and
any other state statutes, rules, regulations or requirements relating to the
procurement of goods, services, insurance, and construction, including but not
limited to Article 3 (§ 2.2-1109 et seq.) of Chapter 11 of Title 2.2, regarding
the duties, responsibilities and authority of the Division of Purchases and
Supply of the Virginia Department of General Services, and Article 4 (§
2.2-1129 et seq.) of Chapter 11 of Title 2.2, regarding the review and the
oversight by the Division of Engineering and Buildings of the Virginia
Department of General Services of contracts for the construction of University
capital projects and construction-related professional services (§ 2.2-1132).
V. UNIVERSITY PROCUREMENT POLICIES.
A. General Competitive Principles.
In connection with University procurements and the
processes leading to award of contracts for goods, services, insurance, and
construction, the University is committed to:
1. Seeking competition to the maximum practical degree,
taking into account the size of the anticipated procurement, the term of the
resulting contract and the likely extent of competition;
2. Conducting all procurements in an open, fair and
impartial manner and avoiding any impropriety or the appearance of any
impropriety;
3. Making procurement rules clear in advance of any
competition;
4. Providing access to the University 's business to all
qualified vendors, firms and contractors, with no potential bidder or offeror
excluded arbitrarily or capriciously, while allowing the flexibility to engage
in cooperative procurements and to meet special needs of the University;
5. Ensuring that specifications for purchases are fairly
drawn so as not to favor unduly a particular vendor; and
6. Providing for the free exchange of information between
the University, vendors, firms or contractors concerning the goods or services
sought and offered while preserving the confidentiality of proprietary
information.
B. Access to Records.
Procurement records shall be available to citizens or to
interested persons, firms or corporations in accordance with the provisions of
the Virginia Freedom of Information Act, Chapter 37 (§ 2.2-3700 et seq.) of
Title 2.2 of the Code of Virginia, except those records exempt from disclosure
pursuant to § 2.2-3705.1 (7), 2.2-3705.1 (12), or 2.2-3705.4 (4), or
other applicable exemptions of the Virginia Freedom of Information Act, and §
2.2-4342 of the Virginia Public Procurement Act.
C. Cooperative Procurements and Alliances.
In circumstances where the University determines and
documents that statewide contracts for goods and services, including
information technology and telecommunications goods and services, do not
provide goods and services to the University that meet its business goals and
objectives, the University is authorized to participate in cooperative
procurements with other public or private organizations or entities, including
other educational institutions, public-private partnerships, public bodies,
charitable organizations, health care provider alliances and purchasing
organizations, so long as the resulting contracts are procured competitively
pursuant to subsections A through J of § 5 of the Rules Governing Procurement
of Goods, Services, Insurance, and Construction attached to this Policy as
Attachment 1 and the purposes of this Policy will be furthered. In the event
the University engages in a cooperative contract with a private organization or
public-private partnership and the contract was not competitively procured
pursuant to subsections A through J of § 5 of the Rules Governing Procurement
of Goods, Services, Insurance, and Construction attached to this Policy as
Attachment 1, use of the contract by other state agencies, institutions and
public bodies shall be prohibited. Notwithstanding all of the above, use of
cooperative contracts shall conform to the business requirements of the
Commonwealth’s electronic procurement system, including the requirement for
payment of applicable fees. By October 1 of each year, the President, acting
through the Executive Vice President and Chief Operating Officer, shall make
available to the Secretaries of Administration and Technology, the Joint
Legislative Audit and Review Commission, and the Auditor of Public Accounts a
list of all cooperative contracts and alliances entered into or used during the
prior fiscal year.
D. Training; Ethics in Contracting.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall take all necessary and reasonable steps to
assure (i) that all University officials responsible for and engaged in
procurements authorized by the Act and this Policy are knowledgeable regarding
the requirements of the Act, this Policy, and the Ethics in Public Contracting
provisions of the Virginia Public Procurement Act, Article 6 (§ 2.2-4367 et
seq.) of Chapter 43 of Title 2.2 of the Code of Virginia, (ii) that only
officials authorized by this Policy and any procedures adopted by the
President, acting through the Executive Vice President and Chief Operating
Officer, to implement this Policy are responsible for and engaged in such
procurements, and (iii) that compliance with the Act and this Policy are
achieved.
The University shall maintain an ongoing program to provide
professional development opportunities to its buying staff and to provide
methods training to internal staff who are engaged in placing decentralized
small purchase transactions.
E. Ethics and University Procurements.
In implementing the authority conferred by this Policy, the
personnel administering any procurement shall adhere to the following
provisions of the Code of Virginia: the Ethics in Public Contracting provisions
of the Virginia Public Procurement Act, Article 6 (§ 2.2-4367 et seq.) of Chapter
43 of Title 2.2 of the Code of Virginia, the State and Local Government
Conflict of Interests Act, Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2, and
the Virginia Governmental Frauds Act, Article 1.1 (§ 18.2-498.1 et seq.) of
Chapter 12 of Title 18.2 of the Code of Virginia.
VI. UNIVERSITY SURPLUS MATERIALS POLICY AND
PROCEDURES.
The policy and procedures for disposal for surplus
materials shall provide for the sale, environmentally-appropriate disposal, or
recycling of surplus materials by the University and the retention of the
resulting proceeds by the University.
VII. ADOPTION AND EFFECTIVE DATES OF RULES AND IMPLEMENTING
POLICIES AND PROCEDURES.
A. The President, acting through the Executive Vice
President and Chief Operating Officer or his designee, shall adopt one or more
comprehensive sets of specific procurement policies and procedures for the
University, which, in addition to the Rules, implement applicable provisions of
law and this Policy. University procurements shall be carried out in accordance
with this Policy, the Rules, and any implementing policies and procedures
adopted by the University. The implementing policies and procedures (i) shall
include the delegation of procurement authority by the Board to appropriate
University officials who shall oversee University procurements of goods,
services, insurance, and construction, including a grant of authority to such
officials to engage in further delegation of authority as the President deems
appropriate, and (ii) shall remain consistent with the competitive principles
set forth in Part V above.
B. Any implementing policies and procedures adopted
pursuant to Part VII A above and the Rules shall become effective on the
Effective Date of the University’s initial Management Agreement with the Commonwealth,
and, as of their effective date, shall be applicable to all procurements
undertaken by the University on behalf of the University for goods, services,
insurance, and construction. This Policy, the Rules, and any implementing
policies and procedures adopted by the University shall not affect existing
contracts already in effect.
C. The Rules and University implementing policies and
procedures for all University procurements of goods, services, insurance, and
construction, and the disposition of surplus property shall be substantially
consistent with the Commonwealth of Virginia Purchasing Manual for Institutions
of Higher Education and their Vendors in their form as of the effective date of
this Policy and as amended or changed in the future, and with University
procedures specific to the Acquisition of Goods and Services. The Rules and
University implementing policies and procedures shall implement a system of
competitive negotiation, and competitive sealed bidding when appropriate, for
goods, services, including professional services as defined in the Rules,
insurance, and construction.
VIII. REQUIREMENTS FOR RULES AND IMPLEMENTING POLICIES AND
PROCEDURES.
A. Protests, Appeals and Debarment.
The Rules and University implementing policies and procedures
for procurements other than capital outlay shall include a process or processes
for an administrative appeal by vendors, firms or contractors. Protests and
appeals may challenge determinations of vendor, firm or contractor
non-responsibility or ineligibility, or the award of contracts, provided that
such protests and appeals are filed within the times specified by the Rules.
Remedies available shall be limited to reversal of the action challenged or,
where a contract already being performed is declared void, compensation for the
cost of performance up to the time of such declaration. The Rules and
University implementing policies and procedures also may establish the basis
and process for debarment of any vendor, firm or contractor.
B. Prompt Payment of Contractors and Subcontractors.
The Rules and University implementing policies and
procedures shall include provisions related to prompt payment of outstanding
invoices, which shall include payment of interest on properly-presented
invoices outstanding more than seven (7) days beyond the payment date, at a
rate no higher than the lowest prime rate charged by any commercial bank as
published in the Wall Street Journal. The payment date shall be the later of
thirty (30) days from the date of the receipt of goods or invoice, or the date
established by the contract. All contracts also shall require prompt payment of
subcontractors by the general contractor, upon receipt of payment by the
University.
C. Types of Procurements.
The Rules and University implementing policies and
procedures shall implement a system of competitive negotiation for professional
services, as defined in the Rules, and shall implement purchasing procedures
developed to maximize competition given the size and duration of the contract, and
the needs of the University. Such policies and procedures may include special
provisions for procurements such as emergency procurements, sole source
procurements, brand name procurements, small purchases, procurements in which
only one qualified vendor responds, and others.
D. Approval and Public Notice of Procurements.
The Rules and University implementing policies and
procedures shall provide for approval of solicitation documents by an
authorized individual and for reasonable public notice of procurements, given
the size and nature of the need and the applicability of any Virginia Freedom
of Information Act exemption.
E. Administration of Contracts.
The Rules and University implementing policies and
procedures shall contain provisions related to the administration of contracts,
including contract claims, modifications, extensions and assignments.
F. Non-Discrimination.
The Rules and University implementing policies and
procedures shall provide for a nondiscriminatory procurement process that
prohibits discrimination because of race, religion, color, sex or national
origin of the bidder or offeror in the solicitation and award of contracts; and
shall include appropriate provisions to effectuate fair and reasonable
consideration of women-owned, minority-owned and small businesses and to
promote and encourage a diversity of suppliers.
ATTACHMENT 1
Rules Governing Procurement of Goods, Services, Insurance,
and Construction
by a Public Institution of Higher Education of the Commonwealth of Virginia
Governed by Subchapter 3 of the
Restructured Higher Education Financial and Administrative
Operations Act,
Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of the Code of
Virginia
In accordance with the provisions of the Restructured
Higher Education Financial and Administrative Operations Act (the Act), Chapter
4.10 (§ 23-38.88 et seq.) of Title 23 of the Code of Virginia, and in
particular § 23-38.110 of the Act, the governing body of a public institution
of higher education of the Commonwealth of Virginia that has entered into a
Management Agreement with the Commonwealth pursuant to Subchapter 3 of the Act
has adopted the following Rules Governing Procurement of Goods, Services,
Insurance, and Construction to govern the procurement of goods, services,
insurance, and construction by the Institution, excluding the University of
Virginia Medical Center:
§ 1. Purpose. –
The purpose of these Rules is to enunciate the public
policies pertaining to procurement of good, services, insurance, and
construction by the Institution from nongovernmental sources, to include
governmental procurement that may or may not result in monetary consideration
for either party. These Rules shall apply whether the consideration is monetary
or nonmonetary and regardless of whether the Institution, the contractor, or
some third party is providing the consideration.
§ 2. Scope of Procurement Authority. –
Subject to these Rules, and the Institution’s continued
substantial compliance with the terms and conditions of its Management
Agreement with the Commonwealth pursuant to § 23-38.88(D)(4) and the
requirements of Chapter 4.10 of the Act, the Institution shall have and shall
be authorized to have and exercise all of the authority relating to procurement
of goods, services, insurance, and construction, including but not limited to
capital outlay-related procurement and information technology-related
procurement, that Institutions are authorized to exercise pursuant to
Subchapter 3 of the Restructuring Act.
§ 3. Competition is the Priority. –
To the end that the Institution shall obtain high quality
goods and services at reasonable cost, that all procurement procedures be
conducted in an open, fair and impartial manner with avoidance of any
impropriety or appearance of impropriety, that all qualified vendors have
access to the Institution’s business and that no offeror be arbitrarily or
capriciously excluded, it is the intent of the governing body of the
Institution that competition be sought to the maximum feasible degree, that
procurement procedures involve openness and administrative efficiency, that
individual public bodies enjoy broad flexibility in fashioning details of such
competition, that the rules governing contract awards be made clear in advance
of the competition, that specifications reflect the procurement needs of the
purchasing body rather than being drawn to favor a particular vendor, and that
the purchaser and vendor freely exchange information concerning what is sought
to be procured and what is offered. The Institution may consider best value
concepts when procuring goods and nonprofessional services, but not
construction or professional services. Professional services will be procured
using a qualification-based selection process. 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.
§ 4. Definitions. –
As used in these Rules:
“Affiliate” means an individual or business that controls,
is controlled by, or is under common control with another individual or
business. A person controls an entity if the person owns, directly or
indirectly, more than 10% of the voting securities of the entity. For the
purposes of this definition “voting security” means a security that (i) confers
upon the holder the right to vote for the election of members of the board of
directors or similar governing body of the business or (ii) is convertible
into, or entitles the holder to receive, upon its exercise, a security that
confers such a right to vote. A general partnership interest shall be deemed to
be a voting security.
“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 the Institution’s needs.
“Business” means any type of corporation, partnership,
limited liability company, association, or sole proprietorship operated for
profit.
“Competitive negotiation” is a method of contractor
selection that includes the following elements:
1. Issuance of a written Request for Proposal indicating in
general terms that which is sought to be procured, specifying the factors that
will be used in evaluating the proposal and containing or incorporating by
reference the other applicable contractual terms and conditions, including any
unique capabilities or qualifications that will be required of the contractor.
2. Public notice of the Request for Proposal at least 10
days prior to the date set for receipt of proposals by publication in a
newspaper or newspapers of general circulation in the area in which the
contract is to be performed so as to provide reasonable notice to the maximum
number of offerors that can be reasonably anticipated to submit proposals in
response to the particular request. Public notice also shall be published on
the Department of General Services’ central electronic procurement website and
may be published on other appropriate websites. In addition, proposals may be
solicited directly from potential contractors.
3. a. Procurement of professional services. The procurement
of professional services for capital projects shall be conducted using a
qualification-based selection process. The Institution 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. The Request for Proposal
shall not, however, request that offerors furnish estimates of man-hours or
cost for services. At the discussion stage, the Institution may discuss
nonbinding estimates of total project costs, including, but not limited to,
life-cycle costing, and where appropriate, nonbinding estimates of price for
services. Proprietary information from competing offerors shall not be
disclosed to the public or to competitors. At the conclusion of discussion,
outlined in this subdivision, on the basis of evaluation factors published in
the Request for Proposal and all information developed in the selection process
to this point, the Institution 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 with
the offeror ranked first. If a contract satisfactory and advantageous to the
Institution 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, and so on until such a contract can be negotiated at a
fair and reasonable price. Should the Institution 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.
A contract for architectural or professional engineering
services relating to construction projects may be negotiated by the
Institution, for multiple projects provided (i) the projects require similar
experience and expertise, and (ii) the nature of the projects is clearly
identified in the Request for Proposal. 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 be as set in the Request for Proposal; and (c) the project fee of any
single project shall not exceed the term limit as set in the Request for
Proposal. Any unused amounts from any contract term may be carried forward.
Competitive negotiations for such contracts may result in awards to more than
one offeror provided the Request for Proposal stated the potential for a
multi-vendor award.
Multiphase professional services contracts satisfactory and
advantageous to the Institution for environmental, location, design and
inspection work regarding construction of infrastructure 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
Institution 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 such Institution require awarding the contract.
b. Procurement of other than professional services.
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 Request for Proposal, including price if so stated in the
Request for Proposal. Negotiations shall then be conducted with each of the
offerors so selected. Price shall be considered, but need not be the sole
determining factor. After negotiations have been conducted with each offeror so
selected, the Institution shall select the offeror which, in its opinion, has
made the best proposal, and shall award the contract to that offeror. When the
terms and conditions of multiple awards are so provided in the Request for
Proposal, awards may be made to more than one offeror. Should the Institution
determine in writing and in its sole discretion that only one offeror has made
the best proposal, a contract may be negotiated and awarded to that offeror.
“Competitive sealed bidding” is a method of contractor selection,
other than for professional services, which includes the following elements:
1. Issuance of a written Invitation to Bid containing or
incorporating by reference the specifications and contractual terms and
conditions applicable to the procurement. Unless the Institution has provided
for prequalification of bidders, the Invitation to Bid shall 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, an Invitation to Bid may be issued requesting the submission
of unpriced offers to be followed by an Invitation to Bid limited to those
bidders whose offers have been qualified under the criteria set forth in the
first solicitation.
2. Public notice of the Invitation to Bid at least 10 days
prior to the date set for receipt of bids by publication on the Department of
General Services’ central electronic procurement website. Public notice also
may be published in a newspaper of general circulation or on other appropriate
websites, or both. In addition, bids may be solicited directly from potential
contractors. Any additional solicitations shall include businesses selected
from a list made available by the Department of Minority Business Enterprise.
3. Public opening and announcement of all bids received.
4. Evaluation of bids based upon the requirements set forth
in the invitation, which may include special qualifications of potential
contractors, 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.
When the terms and conditions of multiple awards are so provided in the
Invitation to Bid, awards may be made to more than one bidder.
“Construction” means building, altering, repairing,
improving or demolishing any structure, building or highway, and any draining,
dredging, excavation, grading or similar work upon real property.
“Construction management contract” means 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.
“Covered Institution” or “Institution” means, on and after
the effective date of the initial management agreement with the Commonwealth of Virginia, a public institution of higher education of the Commonwealth
that has entered into a management agreement with the Commonwealth to be
governed by the provisions of Subchapter 3 of the Restructuring Act.
“Design-build contract” means a contract between the Institution and another
party in which the party contracting with the Institution agrees to both design
and build the structure, roadway or other item specified in the contract.
“Goods” means all material, equipment, supplies, and
printing, including information technology and telecommunications goods such as
automated data processing hardware and software. “Informality” means a minor
defect or variation of a bid or proposal from the exact requirements of the
Invitation to Bid, or the Request for Proposal, which does not affect the
price, quality, quantity or delivery schedule for the goods, services or
construction being procured. “Multiphase professional services contract” means
a contract for the providing of professional services where the total scope of
work of the second or subsequent phase of the contract cannot be specified
without the results of the first or prior phase of the contract.
“Nonprofessional services” means any services not
specifically identified as professional services in the definition of
professional services and includes small construction projects valued not over
$1 million; provided that subdivision 3a of the definition of “competitive
negotiation” in this section shall still apply to professional services for
such small construction projects.
“Potential bidder or offeror” for the purposes of §§ 50 and
54 of these Rules means a person who, at the time the Institution 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 the 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.
“Professional services” means work performed by an
independent contractor within the scope of the practice of accounting,
actuarial services, architecture, land surveying, landscape architecture, law,
dentistry, medicine, optometry, pharmacy or professional engineering.
“Public body” means any legislative, executive or judicial
body, 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 these Rules.
“Public contract” means an agreement between the
Institution and a nongovernmental source that is enforceable in a court of law.
“Responsible bidder” or “offeror” means a person who has
the capability, in all respects, to perform fully the contract requirements and
the moral and business integrity and reliability that will assure good faith
performance, and who has been prequalified, if required.
“Responsive bidder” means a person who has submitted a bid
that conforms in all material respects to the Invitation to Bid.
“Restructuring Act” or “Act” means the Restructured Higher
Education Financial and Administrative Operations Act, Chapter 4.10 (§ 23-38.88
et seq.) of Title 23 of the Code of Virginia.
“Rules” means these Rules Governing Procurement of Goods,
Services, Insurance, and Construction adopted by the governing body of the
Covered Institution.
“Reverse auctioning” means a procurement method wherein
bidders are invited to bid on specified goods or nonprofessional services
through real-time electronic bidding, with the award being made to the lowest
responsive and responsible bidder. During the bidding process, bidders’ 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.
“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.
“Sheltered workshop” means a work-oriented rehabilitative
facility with a controlled working environment and individual goals that
utilizes work experience and related services for assisting the handicapped
person to progress toward normal living and a productive vocational status.
§ 5. Methods of procurement. –
A. All public contracts with nongovernmental contractors
for the purchase or lease of goods, or for the purchase of services, insurance,
or construction, shall be awarded after competitive sealed bidding, or
competitive negotiation as provided in this section, unless otherwise
authorized by law.
B. Professional services shall be procured by competitive
negotiation. Qualification-based selection shall be used for design services.
C. Goods, services, or insurance may be procured by
competitive negotiation.
D. Construction may be procured only by competitive sealed
bidding, except that competitive negotiation may be used in the following
instances upon a determination made in advance by the Institution 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:
1. By the Institution on a fixed price design-build basis
or construction management basis under § 7;
2. By the Institution for the construction, alteration,
repair, renovation or demolition of buildings; or
3. By the Institution for the construction of highways and
any draining, dredging, excavation, grading or similar work upon real
property.
E. 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 writing shall document the basis for this
determination. The Institution shall issue a written notice 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. This notice shall be posted in a designated
public area, which may be the Department of General Services’ website for the
Commonwealth’s central electronic procurement system, or published in a
newspaper of general circulation on the day the Institution awards or announces
its decision to award the contract, whichever occurs first. Public notice shall
also be published on the Department of General Services' website for the
Commonwealth’s central electronic procurement system and may be published on
other appropriate websites.
F. In case of emergency, a contract may be awarded without
competitive sealed bidding or competitive negotiation; however, such
procurement shall be made with such competition as is practicable 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 contract
file. The Institution shall issue a written notice stating that the contract is
being awarded on an emergency basis, and identifying that which is being
procured, the contractor selected, and the date on which the contract was or
will be awarded. This notice shall be posted in a designated public area, which
may be the Department of General Services’ website for the Commonwealth’s
central electronic procurement system, or published in a newspaper of general
circulation on the day the Institution awards or announces its decision to
award the contract, whichever occurs first, or as soon thereafter as is
practicable. Public notice may also be published on the Department of General
Services' website for the Commonwealth’s central electronic procurement system
and other appropriate websites.
G. The Institution may establish purchase procedures, if
adopted in writing, not requiring competitive sealed bids or competitive
negotiation for single or term contracts for goods and services other than
professional services if the aggregate or the sum of all phases is not expected
to exceed $50,000; however, such small purchase procedures shall provide for
competition wherever practicable.
H. The Institution may establish purchase procedures, if
adopted in writing, not requiring competitive negotiation for single or term
contracts for professional services if the aggregate or the sum of all phases
is not expected to exceed $50,000; however such small purchase procedures shall
provide for competition wherever practicable.
I. Upon a determination made in advance by the Institution
and set forth in writing that the purchase of goods, products or commodities
from a public auction sale is in the best interests of the public, such items
may be purchased at the auction, including online public auctions. The writing
shall document the basis for this determination.
J. The purchase of goods or nonprofessional services, but
not construction or professional services, may be made by reverse auctioning.
§ 6. Cooperative procurement. –
A. In circumstances where the Institution determines and
documents that statewide contracts for goods and services, including
information technology and telecommunications goods and services, do not provide
goods and services to the Institution that meet its business goals and
objectives, the Institution is authorized to participate in, sponsor, conduct,
or administer a cooperative procurement arrangement on behalf of or in
conjunction with public bodies, public or private health or educational
institutions, other public or private organizations or entities, including
public-private partnerships, charitable organizations, health care provider
alliances or purchasing organizations or entities, or with public agencies or
institutions or group purchasing organizations of the several states,
territories of the United States, or the District of Columbia, for the purpose
of combining requirements to effect cost savings or reduce administrative
expense in any acquisition of goods and services, other than professional
services. The Institution may purchase from any authority, department, agency,
institution, city, county, town, or other political subdivision of the
Commonwealth'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. In such instances, deviation from the procurement procedures set forth
in these Rules and the administrative policies and procedures established to
implement these Rules shall be permitted. Notwithstanding all of the above, use
of cooperative contracts shall conform to the business requirements of the
Commonwealth’s electronic procurement system, including the requirement for
payment of applicable fees. Nothing herein shall prohibit the payment by direct
or indirect means of any administrative fee that will allow for participation
in any such arrangement.
B. In circumstances where statewide contracts for goods and
services, including information technology and telecommunications goods and
services, do not provide goods and services to meet the Institution’s business
goals and objectives, and as authorized by the United States Congress and
consistent with applicable federal regulations, and provided the terms of the
contract permit such purchases:
1. The Institution may purchase goods and nonprofessional
services, from a United States General Services Administration contract or a
contract awarded by any other agency of the United States government; and
2. The Institution may purchase telecommunications and
information technology goods and nonprofessional services from a United States
General Services Administration contract or a contract awarded by any other
agency of the United States government.
§ 7. Design-build or construction management contracts
authorized. –
A. Notwithstanding any other provisions of law, the
Institution may enter into contracts on a fixed price design-build basis or
construction management basis in accordance with the provisions of this
section.
B. Procurement of construction by the design-build or
construction management method shall be a two-step competitive negotiation
process. In the first step, offerors shall be requested to submit their
qualifications. Based upon the information submitted and any other relevant
information which the Commonwealth may obtain, no more than five offerors
deemed most suitable for the project shall be selected by the Commonwealth and
requested to submit proposals.
§ 8. Modification of the contract. –
A. A contract awarded by the Institution may include
provisions for modification of the contract during performance, but no
fixed-price contract may be increased by more than 25% of the amount of the
contract or $50,000, whichever is greater, without the advance written approval
of the Institution’s president or his designee. 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.
B. The Institution may extend the term of an existing
contract for services to allow completion of any work undertaken but not
completed during the original term of the contract.
C. Nothing in this section shall prevent the Institution
from placing greater restrictions on contract modifications.
§ 9. Discrimination prohibited; participation of small,
women- and minority-owned business. –
A. In the solicitation or awarding of contracts, the
Institution shall not discriminate against a bidder or offeror because of race,
religion, color, sex, national origin, age, disability, or any other basis
prohibited by state law relating to discrimination in employment. Whenever
solicitations are made, the Institution shall include businesses selected from
a list made available by the Department of Minority Business Enterprise.
B. The Institution shall establish programs consistent with
this section to facilitate the participation of small businesses and businesses
owned by women and minorities in procurement transactions. The programs
established shall be in writing and shall include cooperation with the
Department of Minority Business Enterprise, the United States Small Business
Administration, and other public or private agencies. The Institution shall
submit annual progress reports on minority business procurement to the
Department of Minority Business Enterprise.
C. Whenever there exists (i) a rational basis for small
business enhancement or (ii) a persuasive analysis that documents a
statistically significant disparity between the availability and utilization of
women- and minority-owned businesses, the Governor is by law authorized and
encouraged to require the Institution to implement appropriate enhancement or
remedial measures consistent with prevailing law.
D. In the solicitation or awarding of contracts, the
Institution shall not discriminate against a bidder or offeror because the
bidder or offeror employs ex-offenders unless it has made a written
determination that employing ex-offenders on the specific contract is not in
its best interest.
§ 10. Employment discrimination by contractor prohibited;
required contract provisions. –
The Institution shall include in every contract of more
than $10,000 the following provisions:
1. During the performance of this contract, the contractor
agrees as follows:
a. The contractor will not discriminate against any
employee or applicant for employment because of race, religion, color, sex,
national origin, age, disability, 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 law, rule or regulation shall be deemed sufficient for
the purpose of meeting the requirements of this section.
2. The contractor will include the provisions of the
foregoing paragraphs a, b and c in every subcontract or purchase order of over
$10,000, so that the provisions will be binding upon each subcontractor or
vendor.
§ 11. Drug-free workplace to be maintained by contractor;
required contract provisions. –
The Institution shall include in every contract over
$10,000 the following provisions: During the performance of this 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 or purchase order 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 connection
with a specific contract awarded to a contractor in accordance with these
Rules, 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.
§ 12. Use of brand names. –
Unless otherwise provided in the Invitation to Bid, the name
of a certain brand, make or manufacturer shall not restrict bidders to the
specific brand, make or manufacturer named and shall be deemed to convey the
general style, type, character, and quality of the article desired. Any article
that the Institution 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.
§ 13. Comments concerning specifications. –
The Institution shall establish procedures whereby comments
concerning specifications or other provisions in Invitations to Bid or Requests
for Proposal can be received and considered prior to the time set for receipt
of bids or proposals or award of the contract.
§ 14. Prequalification generally; prequalification for
construction. –
A. 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
procedure shall be established in writing and sufficiently in advance of its
implementation to allow potential contractors a fair opportunity to complete
the process.
B. Any prequalification of prospective contractors for
construction by the Institution shall be pursuant to a prequalification process
for construction projects adopted by the Institution. The process shall be
consistent with the provisions of this section.
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 subject to the provisions of subsection D of § 34 of these Rules.
In all instances in which the Institution 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.
At least 30 days prior to the date established for
submission of bids or proposals under the procurement of the contract for which
the prequalification applies, the Institution 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.
A decision by the Institution denying prequalification
under the provisions of this subsection shall be final and conclusive unless
the contractor appeals the decision as provided in § 54 of these Rules.
C. The Institution may deny prequalification to any
contractor only if the Institution 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 Institution 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 10 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
Institution without good cause. If the Institution has not contracted with a
contractor in any prior construction contracts, the Institution 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 Institution may not utilize this provision to deny
prequalification unless the facts underlying such substantial noncompliance
were documented in writing in the prior construction project 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 10 years of a crime related to governmental or
nongovernmental construction or contracting, including, but not limited to, a
violation of (i) Article 6 (§ 2.2-4367 et seq.) of Chapter 43 of Title 2.2 of
the Code of Virginia, (ii) the Virginia Governmental Frauds Act (§ 18.2-498.1
et seq.), (iii) Chapter 4.2 (§ 59.1-68.6 et seq.) of Title 59.1 of the Code of
Virginia, or (iv) 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 Institution in a
timely manner any information requested by the Institution relevant to
subdivisions 1 through 6 of this subsection.
§ 15. Negotiation with lowest responsible bidder. –
Unless canceled or rejected, a responsive bid from the
lowest responsible bidder shall be accepted as submitted, except that if the
bid from the lowest responsible bidder exceeds available funds, the Institution
may negotiate with the apparent low bidder to obtain a contract price within available
funds. However, the negotiation may be undertaken only under conditions and
procedures described in writing and approved by the Institution prior to
issuance of the Invitation to Bid and summarized therein.
§ 16. Cancellation, rejection of bids; waiver of
informalities. –
A. An Invitation to Bid, a Request for Proposal, any other
solicitation, or any and all bids or proposals, may be canceled or rejected.
The reasons for cancellation or rejection shall be made part of the contract
file. The Institution shall not cancel or reject an Invitation to Bid, a
Request for Proposal, any other solicitation, bid or proposal pursuant to this
section solely to avoid awarding a contract to a particular responsive and
responsible bidder or offeror.
B. The Institution may waive informalities in bids.
§ 17. Exclusion of insurance bids prohibited. –
Notwithstanding any other provision of law, no insurer
licensed to transact the business of insurance in the Commonwealth or approved
to issue surplus lines insurance in the Commonwealth shall be excluded from
presenting an insurance bid proposal to the Institution in response to a
request for proposal or an invitation to bid. Nothing in this section shall
preclude the Institution from debarring a prospective insurer pursuant to § 18.
§ 18. Debarment. –
Prospective contractors may be debarred from contracting
for particular types of supplies, services, insurance or construction, for
specified periods of time. Any debarment procedure shall be established in
writing by the Institution. Any debarment procedure may provide for debarment
on the basis of a contractor’s unsatisfactory performance for the Institution.
§ 19. Purchase programs for recycled goods; Institution
responsibilities. –
A. The Institution may implement a purchase program for
recycled goods and may coordinate its efforts so as to achieve the goals and
objectives set forth in §§ 10.1-1425.6, 10.1-1425.7,and 10.1-1425.8 of the Code
of Virginia, and §§ 20 and 22 of these Rules.
B. The Department of Environmental Quality, with advice
from the Virginia Recycling Markets Development Council, shall advise the
Institution concerning the designation of recycled goods.
§ 20. Preference for Virginia products with recycled
content and for Virginia firms. –
A. In the case of a tie bid, preference shall be given to
goods produced in Virginia, goods or services or construction provided by
Virginia persons, firms or corporations; otherwise the tie shall be decided by
lot.
B. Whenever any bidder is a resident of any other state and
such state under its laws allows a resident contractor of that state a
preference, a like preference may be allowed by the Institution to the lowest
responsive and responsible bidder who is a resident of Virginia.
C. Notwithstanding the provisions of subsections A and B,
in the case of a tie bid in instances where goods are being offered, and
existing price preferences have already been taken into account, preference
shall be given to the bidder whose goods contain the greatest amount of
recycled content.
§ 21. Preference for Virginia coal used in the Institution.
–
In determining the award of any contract for coal to be
purchased for use in the Institution with state funds, the Institution shall
procure using competitive sealed bidding and shall award to the lowest
responsive and responsible bidder offering coal mined in Virginia so long as
its bid price is not more than 4% greater than the bid price of the low
responsive and responsible bidder offering coal mined elsewhere.
§ 22. Preference for recycled paper and paper products used
by the Institution. –
A. In determining the award of any contract for paper and
paper products to be purchased for use by the Institution, it shall
competitively procure recycled paper and paper products of a quality suitable
for the purpose intended, so long as the price is not more than 10% greater
than the price of the low responsive and responsible bidder or offeror offering
a product that does not qualify under subsection B.
B. For purposes of this section, recycled paper and paper
products means any paper or paper products meeting the EPA Recommended Content
Standards as defined in 40 C.F.R. Part 247.
§ 23. Withdrawal of bid due to error. –
A. A bidder for a public construction contract, other than
a contract for construction or maintenance of public highways, may withdraw his
bid from consideration if the price bid was substantially lower than the other
bids due solely to a mistake in the bid, 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 his 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
that 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.
One of the following procedures for withdrawal of a bid
shall be selected by the Institution and stated in the advertisement for bids:
(i) the bidder shall give notice in writing of his claim of right to withdraw
his bid within two business days after the conclusion of the bid opening
procedure and shall submit original work papers with such notice; or (ii) the
bidder shall submit to the Institution or designated official his original work
papers, documents and materials used in the preparation of the bid within one
day after the date fixed for submission of bids. The work papers shall be
delivered by the bidder in person or by registered mail at or prior to the time
fixed for the opening of bids. In either instance, the work papers, documents
and materials may be considered as trade secrets or proprietary information
subject to the conditions of subsection F of § 34 of these Rules. The bids
shall be opened one day following the time fixed by the Institution for the
submission of bids. Thereafter, the bidder shall have two 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 Institution
until the two-hour period has elapsed. The mistake shall be proved only from
the original work papers, documents and materials delivered as required herein.
B. The Institution may establish procedures for the
withdrawal of bids for other than construction contracts.
C. No bid shall be withdrawn under this section 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 5%.
D. If a bid is withdrawn in accordance with this section,
the lowest remaining bid shall be deemed to be the low bid.
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. If the Institution denies the withdrawal of a bid under
the provisions of this section, it shall notify the bidder in writing stating
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.
§ 24. Contract Pricing Arrangements. –
A. Public contracts may be awarded on a fixed price or cost
reimbursement basis, or on any other basis that is not prohibited by these
Rules.
B. Except in case of emergency affecting the public health,
safety or welfare, no public contract shall be awarded on the basis of cost
plus a percentage of cost.
C. A policy or contract of insurance or prepaid coverage
having a premium computed on the basis of claims paid or incurred, plus the
insurance carrier’s administrative costs and retention stated in whole or part
as a percentage of such claims, shall not be prohibited by this section.
§ 25. Workers' compensation requirements for construction
contractors and subcontractors. –
A. No contractor shall perform any work on a construction
project of the Institution unless he (i) has obtained, and continues to
maintain for the duration of the work, workers' compensation coverage required
pursuant to the provisions of Chapter 8 (§ 65.2-800 et seq.) of Title 65.2 of
the code of Virginia, and (ii) provides prior to the award of contract, on a
form furnished by the Institution, evidence of such coverage.
B. The Department of General Services shall provide the
form to the Institution. Failure of the Institution to provide the form prior
to the award of contract shall waive the requirements of clause (ii) of
subsection A.
C. No subcontractor shall perform any work on a
construction project of the Institution unless he has obtained, and continues
to maintain for the duration of such work, workers' compensation coverage
required pursuant to the provisions of Chapter 8 (§ 65.2-800 et seq.) of Title
65.2 of the Code of Virginia.
§ 26. Retainage on construction contracts. –
A. In any contract issued by the Institution for
construction that provides for progress payments in installments based upon an
estimated percentage of completion, the contractor shall be paid at least 95%
of the earned sum when payment is due, with no more than 5% being retained to
ensure faithful performance of the contract. All amounts withheld may be
included in the final payment.
B. Any subcontract for a public project that provides for
similar progress payments shall be subject to the provisions of this section.
§ 27. Public construction contract provisions barring
damages for unreasonable delays declared void. –
A. Any provision contained in any public construction
contract of the Institution that purports to 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 the delay is caused by acts or omissions of
the Institution, its agents or employees and due to causes within their control
shall be void and unenforceable as against public policy.
B. Subsection A shall not be construed to render void any
provision of a public construction contract awarded by the Institution that:
1. Allows the recovery of that portion of delay costs
caused by the acts or omissions of the contractor, or its subcontractors,
agents or employees;
2. Requires notice of any delay by the party claiming the
delay;
3. Provides for liquidated damages for delay; or
4. Provides for arbitration or any other procedure designed
to settle contract disputes.
C. A contractor making a claim against the Institution for
costs or damages due to the alleged delaying of the contractor in the
performance of its work under any public construction contract of the
Institution shall be liable to the Institution and shall pay it for a
percentage of all costs incurred by the Institution in investigating,
analyzing, negotiating, litigating and arbitrating the claim, which percentage
shall be equal to the percentage of the contractor's total delay claim that is
determined through litigation or arbitration to be false or to have no basis in
law or in fact.
D. If the Institution denies 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 for the Institution, it 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 Institution shall be equal to the percentage
of the contractor's total delay claim for which the Institution's denial is
determined through litigation or arbitration to have been made in bad faith.
§ 28. Bid bonds. –
A. Except in cases of emergency, all bids or proposals for
construction contracts in excess of $1 million shall be accompanied by a bid
bond from a surety company selected by the bidder that is authorized to do
business in Virginia, as a guarantee that if the contract is awarded to the
bidder, he will enter into the contract for the work mentioned in the bid. The
amount of the bid bond shall not exceed 5% of the amount bid.
B. No forfeiture under a bid bond shall exceed the lesser
of (i) the difference between the bid for which the bond was written and the
next low bid, or (ii) the face amount of the bid bond.
C. Nothing in this section shall preclude the Institution
from requiring bid bonds to accompany bids or proposals for construction
contracts anticipated to be less than $1 million.
§ 29. Performance and payment bonds. –
A. Upon the award by the Institution of any (i) public
construction contract exceeding $1 million awarded to any prime contractor or
(ii) public construction contract exceeding $1 million 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 by the
Institution, the contractor shall furnish to the Institution the following
bonds:
1. Except for transportation-related projects, 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, such bond shall be in a form and amount satisfactory to the
Institution.
2. 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.
"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.
B. 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.
C. The bonds shall be payable to the Commonwealth of Virginia naming also the Institution.
D. Each of the bonds shall be filed with the Institution,
or a designated office or official thereof.
E. Nothing in this section shall preclude the Institution
from requiring payment or performance bonds for construction contracts below $1
million.
F. 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.
§ 30. 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 Institution’s General Counsel or his
equivalent, a bidder may furnish to the Institution 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 Institution equivalent to a
corporate surety's bond.
§ 31. Bonds on other than construction contracts. –
The Institution may require bid, payment, or performance
bonds for contracts for goods or services if provided in the Invitation to Bid
or Request for Proposal.
§ 32. Action on performance bond. –
No action against the surety on a performance bond shall be
brought by the Institution unless brought within one 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.
§ 33. Actions on payment bonds; waiver of right to sue. –
A. Subject to the provisions of subsection B, any claimant
who has performed labor or furnished material in accordance with the contract
documents in furtherance of the work provided in any contract for which a
payment bond has been given, and who has not been paid in full before the
expiration of 90 days after the day on which the claimant performed the last of
the labor or furnished the last of the materials for which he claims payment,
may bring an action on the payment bond to recover any amount due him for the
labor or material. The obligee named in the bond need not be named a party to
the 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 180 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.
C. Any action on a payment bond shall be brought within one
year after the day on which the person bringing such action last performed
labor or last furnished or supplied materials.
D. 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.
§ 34. Public inspection of certain records. –
A. Except as provided in this section, 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.).
B. Cost estimates relating to a proposed procurement
transaction prepared by or for the Institution shall not be open to public
inspection.
C. 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 Institution 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.
D. 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 Institution decides not to accept any of
the proposals and to reopen the contract. Otherwise, proposal records shall be
open to public inspection only after award of the contract.
E. Any inspection of procurement transaction records under
this section shall be subject to reasonable restrictions to ensure the security
and integrity of the records.
F. Trade secrets or proprietary information submitted by a
bidder, offeror or contractor in connection with a procurement transaction or
prequalification application submitted pursuant to subsection B of § 14 shall
not be subject to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.);
however, the bidder, offeror or contractor shall (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.
§ 35. Exemption for certain transactions. –
A. The provisions of these Rules shall not apply to:
1. The selection of services related to the management and
investment of the Institution’s endowment funds, endowment income, or gifts
pursuant to § 23-76.1. However, selection of these services shall be governed
by the Uniform Management of Institutional Funds Act (§ 55-268.1 et seq.) as
required by § 23-76.1.
2. The purchase of items for resale at retail bookstores
and similar retail outlets operated by the Institution. However, such purchase
procedures shall provide for competition where practicable.
3. Procurement of any construction or planning and design
services for construction by the Institution when (i) the planning, design or
construction is $50,000 or less or (ii) the Institution is obligated to conform
to procurement procedures that are established by federal statutes or
regulations, whether or not those federal procedures are in conformance with
the provisions of these Rules.
4. The University of Virginia Medical Center.
5. The purchase of goods and services by the Institution
when such purchases are made under a remedial plan established by the Governor
pursuant to subsection C of § 9 of these Rules.
B. 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 provisions of these Rules, the Institution may comply
with such federal requirements, notwithstanding the provisions of these Rules,
only upon the written determination of the Institution’s President or his designee
that acceptance of the grant or contract funds under the applicable conditions
is in the public interest. Such determination shall state the specific
provision of these Rules in conflict with the conditions of the grant or
contract.
§ 36. Permitted contracts with certain religious
organizations; purpose; limitations. –
A. The Opportunity Reconciliation Act of 1996, P.L.
104-193, authorizes public bodies to enter into contracts with faith-based
organizations for the purposes described in this section on the same basis as
any other nongovernmental source without impairing the religious character of
such organization, and without diminishing the religious freedom of the
beneficiaries of assistance provided under this section.
B. For the purposes of this section, "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.
C. The Institution, in procuring goods or services, or in
making disbursements pursuant to this section, shall not (i) discriminate
against a faith-based organization on the basis of the organization's religious
character or (ii) impose conditions that (a) restrict the religious character
of the faith-based organization, except as provided in subsection F, or (b)
impair, diminish, or discourage the exercise of religious freedom by the
recipients of such goods, services, or disbursements.
D. The Institution shall ensure that all invitations to
bid, requests for proposals, contracts, and purchase orders prominently display
a nondiscrimination statement indicating that it does not discriminate against
faith-based organizations.
E. A faith-based organization contracting with the
Institution (i) shall not discriminate against any recipient of goods,
services, or disbursements made pursuant to a contract authorized by this
section on the basis of the recipient's religion, religious belief, refusal to
participate in a religious practice, or on the basis of race, age, color,
gender or national origin and (ii) shall be subject to the same rules as other
organizations that contract with public bodies to account for the use of the
funds provided; however, if the faith-based organization segregates public
funds into separate accounts, only the accounts and programs funded with public
funds shall be subject to audit by the Institution. Nothing in clause (ii)
shall be construed to supersede or otherwise override any other applicable
state law.
F. Consistent with the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, P.L. 104-193, funds provided for
expenditure pursuant to contracts with public bodies shall not be spent for sectarian
worship, instruction, or proselytizing; however, this prohibition shall not
apply to expenditures pursuant to contracts, if any, for the services of
chaplains.
G. Nothing in this section shall be construed as barring or
prohibiting a faith-based organization from any opportunity to make a bid or
proposal or contract on the grounds that the faith-based organization has
exercised the right, as expressed in 42 U.S.C. (§ 2000e-1 et seq.), to employ
persons of a particular religion.
H. If an individual, who applies for or receives goods,
services, or disbursements provided pursuant to a contract between the
Institution and a faith-based organization, objects to the religious character
of the faith-based organization from which the individual receives or would
receive the goods, services, or disbursements, the Institution shall offer the
individual, within a reasonable period of time after the date of his objection,
access to equivalent goods, services, or disbursements from an alternative
provider.
The Institution shall provide to each individual who
applies for or receives goods, services, or disbursements provided pursuant to
a contract between the Institution and a faith-based organization a notice in
bold face type that states: "Neither the Institution's selection of a
charitable or faith-based provider of services nor the expenditure of funds
under this contract is an endorsement of the provider's charitable or religious
character, practices, or expression. No provider of services may discriminate
against you on the basis of religion, a religious belief, or your refusal to
actively participate in a religious practice. If you object to a particular
provider because of its religious character, you may request assignment to a
different provider. If you believe that your rights have been violated, please
discuss the complaint with your provider or notify the appropriate person as
indicated in this form."
§ 37. Exemptions from competition for certain transactions.
–
The Institution may enter into contracts without
competition, as that term is described in subsections A through J of § 5
(Methods of procurement) of these Rules, for:
1. The purchase of goods or services that are produced or
performed by or related to:
a. Persons, or in schools or workshops, under the
supervision of the Virginia Department for the Blind and Vision Impaired;
b. Nonprofit sheltered workshops or other nonprofit
organizations that offer transitional or supported employment services serving
the handicapped;
c. Private educational institutions; or
d. Other public educational institutions.
2. Speakers and performing artists;
3. Memberships and Association dues;
4. Sponsored research grant sub-awards and contract
sub-awards, not to include the purchase of goods or services by the Institution;
5. Group travel in foreign countries;
6. Conference facilities and services;
7. Participation in intercollegiate athletic tournaments
and events including team travel and lodging, registration and tournament fees;
8. Royalties; or
9. The purchase of legal services, provided that the Office
of the Attorney General has been consulted, or expert witnesses or other
services associated with litigation or regulatory proceedings.
§ 38. Exemptions from competitive sealed bidding and
competitive negotiation for certain transactions; limitations. –
The Institution may enter into contracts for insurance or
electric utility service without competitive sealed bidding or competitive
negotiation if purchased through an association of which the Institution 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 Institution 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.
§ 39. Definitions. –
As used in §§ 39 through 46, unless the context requires a
different meaning:
"Contractor" means the entity that has a direct
contract with the Institution.
"Debtor" means any individual, business, or group
having a delinquent debt or account with any state agency that obligation has
not been satisfied or set aside by court order or discharged in bankruptcy.
"Payment date" means either (i) the date on which
payment is due under the terms of a contract for provision of goods or
services; or (ii) if such date has not been established by contract, (a) 30
days after receipt of a proper invoice by the Institution or its agent or (b)
30 days after receipt of the goods or services by the Institution..
"Subcontractor" means any entity that has a
contract to supply labor or materials to the contractor to whom the contract
was awarded or to any subcontractor in the performance of the work provided for
in such contract.
§ 40. Exemptions. –
The provisions of §§ 39 through 46 shall not apply to the
late payment provisions contained in any public utility tariffs prescribed by
the State Corporation Commission.
§ 41. Retainage to remain valid. –
Notwithstanding the provisions of §§ 39 through 46, the
provisions of § 26 relating to retainage shall remain valid.
§ 42. Prompt payment of bills by the Institution. –
A. The Institution shall promptly pay for the completely
delivered goods or services by the required payment date.
Payment shall be deemed to have been made when offset
proceedings have been instituted, as authorized under the Virginia Debt
Collection Act (§ 2.2-4800 et seq.) of the Code of Virginia.
B. Separate payment dates may be specified for contracts
under which goods or services are provided in a series of partial deliveries or
executions to the extent that such contract provides for separate payment for
such partial delivery or execution.
§ 43. Defect or impropriety in the invoice or goods and/or
services received. –
In instances where there is a defect or impropriety in an
invoice or in the goods or services received, the Institution shall notify the
supplier of the defect or impropriety, if the defect or impropriety would
prevent payment by the payment date. The notice shall be sent within 15 days
after receipt of the invoice or the goods or services.
§ 44. Date of postmark deemed to be date payment is made. –
In those cases where payment is made by mail, the date of
postmark shall be deemed to be the date payment is made for purposes of these
Rules.
§ 45. Payment clauses to be included in contracts. –
Any contract awarded by the Institution shall include:
1. A payment clause that obligates the contractor to take
one of the two following actions within seven days after receipt of amounts
paid to the contractor by the Institution for work performed by the
subcontractor under that contract:
a. Pay the subcontractor for the proportionate share of the
total payment received from the Institution attributable to the work performed
by the subcontractor under that contract; or
b. Notify the Institution and subcontractor, in writing, of
his intention to withhold all or a part of the subcontractor's payment with the
reason for nonpayment.
2. A payment clause that requires (i) individual
contractors to provide their social security numbers and (ii) proprietorships,
partnerships, and corporations to provide their federal employer identification
numbers.
3. An interest clause that obligates the contractor to pay
interest to the subcontractor on all amounts owed by the contractor that remain
unpaid after seven days following receipt by the contractor of payment from the
Institution for work performed by the subcontractor under that contract, except
for amounts withheld as allowed in subdivision 1.
4. An interest rate clause stating, "Unless otherwise
provided under the terms of this contract, interest shall accrue at the rate of
1% per month."
Any such contract awarded shall further require the
contractor to include in each of its subcontracts a provision requiring each
subcontractor to include or otherwise be subject to the same payment and
interest requirements with respect to each lower-tier subcontractor.
A contractor's obligation to pay an interest charge to a
subcontractor pursuant to the payment clause in this section shall not be
construed to be an obligation of the Institution. A contract modification shall
not be made for the purpose of providing reimbursement for the interest charge.
A cost reimbursement claim shall not include any amount for reimbursement for
the interest charge.
§ 46. Interest penalty; exceptions. –
A. Interest shall accrue, at the rate determined pursuant
to subsection B, on all amounts owed by the Institution to a vendor that remain
unpaid after seven days following the payment date. However, nothing in this
section shall affect any contract providing for a different rate of interest,
or for the payment of interest in a different manner.
B. The rate of interest charged the Institution pursuant to
subsection A shall be the base rate on corporate loans (prime rate) at large United States money center commercial banks as reported daily in the publication entitled
The Wall Street Journal. Whenever a split prime rate is published, the lower of
the two rates shall be used. However, in no event shall the rate of interest
charged exceed the rate of interest established pursuant to § 58.1-1812 of the
Code of Virginia.
C. Notwithstanding subsection A, no interest penalty shall
be charged when payment is delayed because of disagreement between the
Institution and a vendor regarding the quantity, quality or time of delivery of
goods or services or the accuracy of any invoice received for the goods or
services. The exception from the interest penalty provided by this subsection
shall apply only to that portion of a delayed payment that is actually the
subject of the disagreement and shall apply only for the duration of the
disagreement.
D. This section shall not apply to § 26 pertaining to
retainage on construction contracts, during the period of time prior to the
date the final payment is due. Nothing contained herein shall prevent a
contractor from receiving interest on such funds under an approved escrow
agreement.
E. Notwithstanding subsection A, no interest penalty shall
be paid to any debtor on any payment, or portion thereof, withheld pursuant to
the Comptroller's Debt Setoff Program, as authorized by the Virginia Debt
Collection Act (§ 2.2-4800 et seq. of the Code of Virginia), commencing with
the date the payment is withheld. If, as a result of an error, a payment or
portion thereof is withheld, and it is determined that at the time of setoff no
debt was owed to the Commonwealth, then interest shall accrue at the rate
determined pursuant to subsection B on amounts withheld that remain unpaid
after seven days following the payment date.
§ 47. Ineligibility. –
A. Any bidder, offeror or contractor refused permission to
participate, or disqualified from participation, in public contracts to be
issued by the Institution shall be notified in writing. Prior to the issuance
of a written determination of disqualification or ineligibility, the
Institution 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.
Within 10 business days after receipt of the notice, the
bidder may submit rebuttal information challenging the evaluation. The
Institution shall issue its written determination of disqualification or
ineligibility based on all information in the possession of the Institution,
including any rebuttal information, within five business days of the date the
Institution received such rebuttal information.
If the evaluation reveals that the bidder, offeror or
contractor should be allowed permission to participate in the public contract,
the Institution shall cancel the proposed disqualification action. If the
evaluation reveals that the bidder should be refused permission to participate,
or disqualified from participation, in the public contract, the Institution
shall so notify the bidder, offeror or contractor. The notice shall state the
basis for the determination, which shall be final unless the bidder appeals the
decision within 10 days after receipt of the notice by invoking administrative
procedures meeting the standards of § 55 of these Rules, if available, or in
the alternative by instituting legal action as provided in § 54.
B. If, upon appeal, it is determined that the action taken
was arbitrary or capricious, or not in accordance with the Constitution of
Virginia, applicable state law or regulations, the sole relief shall be
restoration of eligibility.
§ 48. Appeal of denial of withdrawal of bid. –
A. A decision denying withdrawal of bid under the
provisions of § 23 of these Rules shall be final and conclusive unless the
bidder appeals the decision within 10 days after receipt of the decision by
invoking administrative procedures meeting the standards of § 55, if available,
or in the alternative by instituting legal action as provided in § 54.
B. If no bid bond was posted, a bidder refused withdrawal
of a bid under the provisions of § 23, prior to appealing, shall deliver to the
Institution 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) 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.
§ 49. Determination of nonresponsibility. –
A. Following public opening and announcement of bids received
on an Invitation to Bid, the Institution shall evaluate the bids in accordance
with element 4 of the definition of "Competitive sealed bidding" in §
4 of these Rules. At the same time, the Institution shall determine whether the
apparent low bidder is responsible. If the Institution so determines, then it
may proceed with an award in accordance with element 5 of the definition of
"Competitive sealed bidding" in § 4. If the Institution determines
that the apparent low bidder is not responsible, it shall proceed as follows:
1. Prior to the issuance of a written determination of
nonresponsibility, the Institution shall (i) notify the apparent low bidder in
writing of the results of the evaluation, (ii) disclose the factual support for
the determination, and (iii) allow the apparent low 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. Within 10 business days after receipt of the notice, the
bidder may submit rebuttal information challenging the evaluation. The
Institution shall issue its written determination of responsibility based on
all information in the possession of the Institution, including any rebuttal
information, within five business days of the date the Institution received the
rebuttal information. At the same time, the Institution shall notify, with
return receipt requested, the bidder in writing of its determination.
3. Such notice shall state the basis for the determination,
which shall be final unless the bidder appeals the decision within 10 days
after receipt of the notice by invoking administrative procedures meeting the
standards of § 55 of these Rules, if available, or in the alternative by
instituting legal action as provided in § 54.
The provisions of this subsection shall not apply to
procurements involving the prequalification of bidders and the rights of any
potential bidders under such prequalification to appeal a decision that such
bidders are not responsible.
B. If, upon appeal pursuant to § 54 or 55 of these Rules,
it is determined that the decision of the Institution was not (i) an honest
exercise of discretion, but rather was arbitrary or capricious or (ii) in
accordance with the Constitution of Virginia, applicable state law or
regulation, or the terms or conditions of the Invitation to Bid, and the award
of the contract in question has not been made, the sole relief shall be a
finding that the bidder is a responsible bidder for the contract in question or
directed award as provided in subsection A of § 54, or both.
If it is determined that the decision of the Institution
was not an honest exercise of discretion, but rather was arbitrary or
capricious or not in accordance with the Constitution of Virginia, applicable
state law or regulation, or the terms or conditions of the Invitation to Bid,
and an award of the contract has been made, the relief shall be as set forth in
subsection B of § 54 of these Rules.
C. A bidder contesting a determination that he is not a
responsible bidder for a particular contract shall proceed under this section,
and may not protest the award or proposed award under the provisions of § 50 of
these Rules.
D. Nothing contained in this section shall be construed to
require the Institution, when procuring by competitive negotiation, to furnish
a statement of the reasons why a particular proposal was not deemed to be the
most advantageous.
§ 50. Protest of award or decision to award. –
A. Any bidder or offeror, who desires to protest the award
or decision to award a contract shall submit the protest in writing to the
Institution, or an official designated by the Institution, no later than 10
days after the award or the announcement of the decision to award, whichever
occurs first. Public notice of the award or the announcement of the decision to
award shall be given by the Institution in the manner prescribed in the terms
or conditions of the Invitation to Bid or Request for Proposal. 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 the protest in the same manner no later than 10 days after posting or
publication of the notice of such contract as provided in § 5 of these Rules.
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 that are subject to inspection under § 34 of these
Rules, then the time within which the protest shall be submitted shall expire
10 days after those records are available for inspection by such bidder or
offeror under § 34, or at such later time as provided in this section. 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 Institution or designated official shall
issue a decision in writing within 10 days stating the reasons for the action
taken. This decision shall be final unless the bidder or offeror appeals within
10 days of receipt of the written decision by invoking administrative
procedures meeting the standards of § 55 of these Rules, if available, or in
the alternative by instituting legal action as provided in § 54. Nothing in
this subsection shall be construed to permit a bidder to challenge the validity
of the terms or conditions of the Invitation to Bid or Request for Proposal.
The use of Alternative Dispute Resolution (ADR) shall constitute an
administrative appeal procedure meeting the standards of § 55 of these Rules.
B. If prior to an 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 Institution 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 enjoined. Where the award has
been made and performance has begun, the Institution 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.
C. Where the Institution, an official designated by it, or
an appeals board determines, after a hearing held following reasonable notice
to all bidders, that there is probable cause to believe that a decision to
award was based on fraud or corruption or on an act in violation of these
Rules, the Institution, designated official or appeals board may enjoin the
award of the contract to a particular bidder.
§ 51. Effect of appeal upon contract. –
Pending final determination of a protest or appeal, the
validity of a contract awarded and accepted in good faith in accordance with
these Rules shall not be affected by the fact that a protest or appeal has been
filed.
§ 52. Stay of award during protest. –
An award need not be delayed for the period allowed a
bidder or offeror to protest, but in the event of a timely protest as provided
in § 50 of these Rules, or the filing of a timely legal action as provided in §
54, no further action to award the contract shall 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.
§ 53. Contractual disputes. –
A. Contractual claims, whether for money or other relief,
shall be submitted in writing no later than 60 days after final payment.
However, written notice of the contractor's intention to file a claim shall be
given at the time of the occurrence or beginning of the work upon which the
claim is based. Nothing herein shall preclude a contract from requiring
submission of an invoice for final payment within a certain time after
completion and acceptance of the work or acceptance of the goods. Pendency of
claims shall not delay payment of amounts agreed due in the final payment.
B. The Institution shall include in its contracts a
procedure for consideration of contractual claims. Such procedure, which may be
contained in the contract or may be specifically incorporated into the contract
by reference and made available to the contractor, shall establish a time limit
for a final decision in writing by the Institution. If the Institution has
established administrative procedures meeting the standards of § 55 of these
Rules, such procedures shall be contained in the contract or specifically
incorporated in the contract by reference and made available to the contractor.
The Institution may require the submission of contractual claims pursuant to
any contract to Alternative Dispute Resolution (ADR) as an administrative
procedure.
C. A contractor may not invoke administrative procedures
meeting the standards of § 55 of these Rules, if available, or institute legal
action as provided in § 54, prior to receipt of the Institution's decision on
the claim, unless the Institution fails to render such decision within the time
specified in the contract.
D. The decision of the Institution shall be final and
conclusive unless the contractor appeals within six months of the date of the
final decision on the claim by the Institution by invoking administrative
procedures meeting the standards of § 55 of these Rules, if available, or in
the alternative by instituting legal action as provided in § 54.
§ 54. Legal actions. –
A. A bidder or offeror, actual or prospective, who is
refused permission or disqualified from participation in bidding or competitive
negotiation, or who is determined not to be a responsible bidder or offeror for
a particular contract, may bring an action in the appropriate circuit court
challenging that decision, which shall be reversed only if the petitioner
establishes that the decision was not (i) an honest exercise of discretion, but
rather was arbitrary or capricious; (ii) in accordance with the Constitution of
Virginia, applicable state law or regulation, or the terms or conditions of the
Invitation to Bid; or (iii) in the case of denial of prequalification, based
upon the criteria for denial of prequalification set forth in subsection B of §
14 of these Rules. In the event the apparent low bidder, having been previously
determined by the Institution to be not responsible in accordance with § 4, is
found by the court to be a responsible bidder, the court may direct the
Institution to award the contract to such bidder in accordance with the
requirements of this section and the Invitation to Bid.
B. A bidder denied withdrawal of a bid under § 23 of these
Rules may bring an action in the appropriate circuit court challenging that
decision, which shall be reversed only if the bidder establishes that the
decision of the Institution was not (i) an honest exercise of discretion, but
rather was arbitrary or capricious or (ii) in accordance with the Constitution
of Virginia, applicable state law or regulation, or the terms or conditions of
the Invitation to Bid.
C. A bidder, offeror or contractor, or a potential bidder
or offeror on a contract negotiated on a sole source or emergency basis in the
manner provided in § 5 of these Rules, whose protest of an award or decision to
award under § 50 of these Rules is denied, may bring an action in the
appropriate circuit court challenging a proposed award or the award of a contract,
which shall be reversed only if the petitioner establishes that the proposed
award or the award is not (i) an honest exercise of discretion, but rather is
arbitrary or capricious or (ii) in accordance with the Constitution of
Virginia, applicable state law or regulation, or the terms and conditions of
the Invitation to Bid or Request for Proposal.
D. If injunctive relief is granted, the court, upon request
of the Institution, shall require the posting of reasonable security to protect
the Institution.
E. A contractor may bring an action involving a contract
dispute with the Institution in the appropriate circuit court. Notwithstanding
any other provision of law, the Comptroller shall not be named as a defendant
in any action brought pursuant to these Rules or § 33.1-387 of the Code of
Virginia, except for disputes involving contracts of the Office of the
Comptroller or the Department of Accounts.
F. A bidder, offeror or contractor need not utilize
administrative procedures meeting the standards of § 55 of these Rules, if
available, but if those procedures are invoked by the bidder, offeror or
contractor, the procedures shall be exhausted prior to instituting legal action
concerning the same procurement transaction unless the Institution agrees
otherwise.
G. Nothing herein shall be construed to prevent the
Institution from instituting legal action against a contractor.
§ 55. Administrative appeals procedure. –
A. The Institution may establish an administrative
procedure for hearing (i) protests of a decision to award or an award, (ii)
appeals from refusals to allow withdrawal of bids, (iii) appeals from
disqualifications and determinations of nonresponsibility, and (iv) appeals
from decisions on disputes arising during the performance of a contract, or (v)
any of these. Such administrative procedure may include the use of Alternative
Dispute Resolution (ADR) or shall provide for a hearing before a disinterested
person or panel, the opportunity to present pertinent information and the
issuance of a written decision containing findings of fact. The disinterested
person or panel shall not be an employee of the governmental entity against
whom the claim has been filed. The findings of fact shall be final and
conclusive and shall not be set aside unless the same are (a) fraudulent,
arbitrary or capricious; (b) so grossly erroneous as to imply bad faith; or (c)
in the case of denial of prequalification, the findings were not based upon the
criteria for denial of prequalification set forth in subsection B of § 14 of
these Rules. No determination on an issue of law shall be final if appropriate
legal action is instituted in a timely manner. The Institution may seek advice
and input from the Alternative Dispute Resolution Council in establishing an
Alternative Dispute Resolution (ADR) procedure.
B. Any party to the administrative procedure, including the
Institution, shall be entitled to institute judicial review if such action is
brought within 30 days of receipt of the written decision.
§ 56. Alternative dispute resolution. –
The Institution may enter into agreements to submit
disputes arising from contracts entered into pursuant to these Rules to
arbitration and utilize mediation and other alternative dispute resolution
procedures. However, such procedures shall be nonbinding and subject to §
2.2-514 of the Code of Virginia, as applicable.
§ 57. Ethics in public contracting. –
The Institution and its governing body, officers and
employees shall be governed by the Ethics in Public Contracting provisions of
the Virginia Public Procurement Act, Article 6 (§ 2.2-4367 et seq.) of Chapter
43 of Title 2.2 of the Code of Virginia.
ATTACHMENT 2
Memorandum of Agreement
The Commonwealth of Virginia and Virginia Polytechnic
Institute and State University
ERP/SciQuest Implementation with eVA
The Commonwealth of Virginia (CoVA) and Virginia
Polytechnic Institute and State University (University) agree to the
following:
I. The University will use ERP/SciQuest integration as best
fits its needs with its ERP system (Banner).
II. Initially, all nonexempt orders produced by the
ERP/SciQuest integration will be transmitted to eVA through an ERP-to-eVA
interface that conforms to the existing eVA interface standard format. Longer
term a more real-time option may be mutually agreed by the Department of
General Services/Division of Purchasing and Supply (DGS/DPS) and the University
and implemented between the ERP and eVA systems.
III. The University may request that eVA contract vendors
provide a version of their contract catalog for loading into ERP/SciQuest.
Should the vendor indicate a preference to only provide its catalog through
eVA, then the University will access these catalogs as described in item B8 of
the Metrics section of this document. In any event, the University shall be responsible
for payment of all eVA transaction fees for nonexempt orders to unregistered
vendors and exempt orders the University chooses to issue to unregistered and
registered vendors through eVA.
IV. eVA will load all nonexempt University orders into the
eVA Data Warehouse. For clarity, it is understood that exempt orders are
purchase transactions specifically exempted, in writing by DPS, from mandatory
processing through eVA.
V. In lieu of processing individual orders for requirements
through eVA, a more efficient administrative approach is to establish a blanket
or standing order. The University is authorized to use such an approach where
it makes good business sense. The University will ensure vendors
understand that eVA transaction fees will be invoiced at the time blanket or
standing orders are issued, that the transaction fee will be based on the total
order amount, and the vendor is required to pay the total transaction fee
within 30 days of the invoice date regardless of the performance/delivery schedule
specified in the order.
VI. eVA will deliver University nonexempt orders to vendors
that are identified as accepting electronic orders (Fax, Email, EDI, cXML). The
University or SciQuest will print/mail/deliver all other orders to vendors.
Whereas the University maintains a University specific electronic vendor record
that identifies vendors that do not agree to the eVA terms and conditions,
including payment of the eVA order transaction fee, the University may deviate
from the policy/procedure set forth in Section 3 of the eVA Business Plan as
follows:
A. For vendors that refuse to accept the eVA terms and
conditions, the University will transmit the appropriate R02, S02, E02, or P02
Purchase Order Category and a Purchase Order Comment that includes the statement
"Vendor refuses eVA terms and conditions." The University agrees that
it will pay the eVA transaction fees for these orders.
B. For vendors that agree to accept the eVA terms and
conditions, the University will transmit the appropriate R01, S01, E01, or P01
Purchase Order Category and a Purchase Order Comment that includes the
statement "Vendor accepts eVA terms and conditions – University eVA Vendor
Manager, e-mail address and phone number.” The University agrees that, for
these orders, it will resolve any vendor dispute related to payment of eVA
transaction fees by working directly with the vendor whether such vendor
contacts the university directly or the dispute is referred to the university
by DGS/DPS or CGI-AMS.
The University further agrees that:
1. It will provide the DGS/DPS eVA Business Manager (or
designee) email notification of the resolution agreed to by the University and
the vendor within 10 business days, unless otherwise agreed on a case-by-case
basis by the DGS/DPS eVA Business Manager (or designee);
2. It will pay the eVA transaction fee unless it notifies
the eVA Business Manager (or designee) within the specified time that the
dispute has been resolved and the vendor agreed to pay the fee; and
3. In the event the University does not provide resolution
notification to the eVA Business Manager (or designee) within the specified
timeframe, DGS/DPS will automatically execute a manual adjustment reversing
disputed transaction fees from the vendor to the University and the University will
pay the fee.
VII. The University will not require separate vendor
registrations as a prerequisite for responding to University solicitations. The
University will participate in an enterprise workgroup to determine the best
means to capture W-9 information on behalf of the whole enterprise. The process
for collecting W-9 information will be supported in eVA in such a way as to
provide CoVA verified vendor information to entities. The University will have
the option to receive a subset of vendor related data. Until an enterprise W-9
process is established, the University will be responsible for collection of
W-9 information.
VIII. For major system changes, DGS/DPS will collaborate in
advance (advance notice defined as at least six (6) months prior to change or
as soon as any new plan is proposed) with the University regarding any proposed
replacement to the CoVA’s electronic procurement system and on changes that may
affect the technical changes described herein.
IX. Integration of the University’s electronic procurement
solution with the University’s ERP is the responsibility of the University. The
solution must provide for orders, change orders and cancellations.
Guidelines
1. The establishment of this agreement is intended to
formulate the basis for a long-term solution for electronic procurement between
the University and the CoVA.
2. Orders may be batched and transmitted to eVA as often as
needed except between the hours of 8 p.m. and 4 a.m. eVA will transmit
registered vendor orders it receives within 15 minutes or less.
3. Nonexempt orders to unregistered vendors are to be
transmitted to eVA for loading to the Data Warehouse. The University shall be
responsible for payment of all eVA transaction fees for nonexempt orders to
unregistered vendors and exempt orders the University chooses to issue to
unregistered and registered vendors through eVA. See eVA Business Plan Section
3 for specific processing requirements for unregistered vendor orders.
4. Change Orders are to be transmitted to eVA as
replacement orders complying with the eVA standard format.
5. Cancellations are to be transmitted to eVA complying
with the eVA standard format.
6. eVA Interface standard does not currently support PCard
orders; however these orders may be processed via the interface as (a)
confirming orders or (b) orders for PCards on file with the vendor.
Schedule
The University shall implement this agreement no later than
July 2006.
Metrics
A. The University shall comply with the following
Governor’s eVA Management Objective:
Ninety-five percent of all nonexempt orders to be processed
by eVA. Includes nonexempt orders issued by end users (PCard & LPO) and the
central purchasing office. Nonexempt orders to unregistered vendors received
into the eVA Data Warehouse are considered compliant orders. For clarity, it is
understood that exempt orders are purchase transactions specifically exempted,
in writing by DPS, from mandatory processing through eVA. All nonexempt orders
not processed by eVA shall be reported on the eVA Dashboard and the corresponding
non-use fee paid by the University.
B. The University shall meet the following management
objectives for electronic procurement:
1. Provide end users, including purchase-card users, access
to an electronic system for buying;
2. Conduct business with eVA registered vendors whenever
possible;
3. Place nonexempt orders, including change orders and
cancellations, to eVA suppliers electronically using eVA;
4. To the greatest extent possible, transmit real-time
electronic purchase orders, regardless of dollar value, that include commodity
codes, complete item descriptions, quantities, and unit prices;
5. To the greatest extent feasible, the University will
transmit confirming orders to eVA within five (5) business days after placing
the order. Commodity codes, complete item descriptions, quantities, and unit
prices will be provided for all confirming orders. DGS/DPS will provide
periodic reports on the number and timeliness of confirming orders enabling the
University and DGS/DPS to work together to monitor the usage of confirming
orders with the objective of reducing their numbers to the extent possible.
The University agrees that, for confirming orders, it will
resolve any vendor dispute, including disputes related to payment of eVA
transaction fees, by working directly with the vendor whether such vendor
contacts the University directly or the dispute is referred to the University
by DGS/DPS or CGI-AMS.
The University further agrees that:
a. It will provide the DGS/DPS eVA Business Manager (or
designee) email notification of the resolution agreed to by the university and
the vendor within 10 business days, unless otherwise agreed on a case-by-case
basis by the DGS/DPS eVA Business Manager (or designee);
b. It will pay the eVA transaction fee unless it notifies
the eVA Business Manager (or designee) within the specified time that the
dispute has been resolved and the vendor agreed to pay the fee; and
c. In the event the University does not provide resolution
notification to the eVA Business Manager (or designee) within the specified
timeframe, DGS/DPS will automatically execute a manual adjustment reversing
disputed transaction fees from the vendor to the University and the University
will pay the fee.
6. Timely process electronic change orders and cancellations;
7. Post all solicitations and business opportunities
greater than $50,000 on the eVA website except as specifically exempted by DPS;
8. To the extent technically feasible, make eVA catalogs,
especially contract catalogs, available to end users using the ERP/SciQuest
Integration system. The University will be responsible for the accuracy of
contract catalog pricing loaded into the ERP/SciQuest;
9. Use eVA electronic vendor notification for procurement
opportunities (per plans to post solicitations specified in item 7 above and
the use of Quick Quote/Reverse Auctions specified in item 10 below);
10. Use eVA on-line bidding functions of Quick Quote and
Reverse Auction for appropriate commodities, when such are identified;
11. Complete and certify the monthly eVA Dashboard Report;
and
12. Timely remit any eVA transaction and non-use fees
incurred by the institution.
C. The University shall be subject to eVA fees assessed per
the eVA Business Plan.
D. The University shall assure that payments to CGI-AMS are
current.
EXHIBIT E
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING
HUMAN RESOURCES FOR
PARTICIPATING COVERED EMPLOYEES
AND OTHER UNIVERSITY EMPLOYEES
THE BOARD OF VISITORS OF VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
POLICY GOVERNING HUMAN RESOURCES FOR
PARTICIPATING COVERED EMPLOYEES
AND OTHER UNIVERSITY EMPLOYEES
I. PREAMBLE.
The Restructured Higher Education Financial and
Administrative Operations Act (the Act), Chapter 4.10 of Title 23 of the Code
of Virginia, establishes a process for the restructuring of institutions of
higher education of the Commonwealth of Virginia and provides that upon
becoming a Covered Institution, the University shall have responsibility and
accountability for human resources management for all University employees,
defined in the Act as “Covered Employees,” who pursuant to subsection A of §
23-38.114 of the Act “are state employees of” the University. Specifically, the
Act provides that, as of the Effective Date of its initial Management Agreement
with the Commonwealth, all Classified Employees shall continue to be covered by
the Virginia Personnel Act, Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2 of the
Code of Virginia, and shall be subject to the policies and procedures
prescribed by the Virginia Department of Human Resource Management, provided
that they may subsequently elect to become Participating Covered Employees. All
Participating Covered Employees shall: (i) be exempt from the Virginia
Personnel Act, Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2; (ii) remain
subject to the state grievance procedure for employees subject to the Virginia
Personnel Act, Chapter 30 (§ 2.2-3000 et seq.) of Title 2.2, provided they were
subject to the state grievance procedure prior to that Effective Date; (iii)
participate in a compensation plan that is subject to the review and approval
of the Board of Visitors; (iv) be hired pursuant to procedures that are based
on merit and fitness; and (v) may, subject to certain specified conditions,
continue to participate in either state- or University-sponsored benefit plans
as described by the Management Agreement.
The provisions of this Policy are adopted by the Board of
Visitors to implement the Governing Law and constitute the human resources
policies to be included in any human resources system adopted by the University
for its employees.
This Policy is intended to cover the authority that may be
granted to the University pursuant to Subchapter 3 of the Act. Any other powers
and authorities granted to the University pursuant to the Appropriation Act, or
any other sections of the Code of Virginia, including other provisions of the
Act and the University's Enabling Legislation, are not affected by this Policy.
II. DEFINITIONS.
As used in this policy, the following terms shall have the
following meanings, unless the context requires otherwise:
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 of Title 23 of the Code of Virginia.
“Board of Visitors” or “Board” means the Board of Visitors
of Virginia Polytechnic Institute and State University.
“Classified Employees” means employees who are covered by
the Virginia Personnel Act, Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2 of the
Code of Virginia, and the policies and procedures established by the Virginia
Department of Human Resource Management and who are not Participating Covered
Employees.
“Covered Employee” means any person who is employed by the
University on either a salaried or nonsalaried (wage) basis.
“Covered Institution” means, on and after the Effective
Date of its initial Management Agreement with the Commonwealth of Virginia, a
public institution of higher education of the Commonwealth that has entered
into a Management Agreement with the Commonwealth to be governed by the
provisions of Subchapter 3 of the Act.
“Employee” means Covered Employee unless the context
clearly indicates otherwise.
“Enabling Legislation” means those chapters, other than
Chapter 4.10, of Title 23 of the Code of Virginia, as amended, creating,
continuing, or otherwise setting forth the powers, purposes, and missions of the
University.
“Effective Date” means the effective date of the initial
Management Agreement between the University and the Commonwealth.
“Governing Law” means the Act and the University’s Enabling
Legislation.
“Management Agreement” means the agreement required by
subsection D of § 23-38.88 of the Act between the University and the
Commonwealth.
“Participating Covered Employee” means (i) all salaried
nonfaculty University employees who were employed as of the day prior to the
Effective Date of the University’s initial Management Agreement with the
Commonwealth, and who elect pursuant to § 23-38.115 of the Act to participate
in and be governed by such human resources program or programs, plans,
policies, and procedures established by Virginia Polytechnic Institute and
State University, (ii) all salaried nonfaculty University employees who are
employed by the University on or after the Effective Date of the initial
Management Agreement between the University and the Commonwealth, (iii) all
nonsalaried nonfaculty University employees without regard to when they were
hired, (iv) all faculty University employees without regard to when they were
hired.
“University” means Virginia Polytechnic Institute and State University, consisting of the University Division (State Agency 208) and Virginia Cooperative Extension and the Agriculture Experiment Station Division (State
Agency 229).
“University employee” means a Covered Employee.
“University Human Resources System” means the human
resources system for University employees as provided for herein.
III. SCOPE AND PURPOSE OF UNIVERSITY HUMAN RESOURCES
POLICIES.
The University has had human resources system autonomy
through decentralization for its employees for some time. For example, general
faculty at the University are expressly exempt from the Virginia Personnel Act.
The University has had decentralization in most human resources functions and
activities since the late 1980s and early 1990s, including, but not limited to,
the running of payrolls; the administration of hiring, classification, and
promotion practices; the administration of separate retirement plans.
The Act extends and reinforces the human resources autonomy
previously granted to the University. This Policy therefore is adopted by the
Board of Visitors to enable the University to develop, adopt, and have in place
by or after the Effective Date of its initial Management Agreement with the
Commonwealth, a human resources system or systems for all University employees.
On that Effective Date, and until changed by the University or unless otherwise
specified in this Policy, the systems for University employees shall be the
same systems applicable to those employees in effect immediately prior to that
Effective Date.
IV. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties
and responsibilities set forth in, and for the appropriate implementation of,
this Policy. Consistent with this full and ultimate accountability, however,
the Board may, pursuant to its legally permissible procedures, specifically
delegate either herein or by separate Board resolution the duties and
responsibilities set forth in this Policy to a person or persons within the
University, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the University’s usual delegation policies and procedures.
V. VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY HUMAN RESOURCES SYSTEMS.
A. Adoption and Implementation of University Human
Resources Systems. The President, acting through the Executive Vice President
and Chief Operating Officer, is hereby authorized to adopt and implement human
resources systems for University employees that implement and are consistent
with the Governing Law, other applicable provisions of law, these University
human resources policies, and any other human resources policies adopted by the
Department of Human Resource Management or the Board of Visitors for University
personnel, unless University employees are exempted from those other human
resources policies by law or policy. The University Human Resources Systems
shall include a delegation of personnel authority to appropriate University
officials responsible for overseeing and implementing the University Human
Resources Systems, including a grant of authority to such officials to engage
in further delegation of authority as the President or his designee deems
appropriate.
The University commits to regularly engage employees in
appropriate discussions and to receive employee input as the new University
Human Resources Systems are developed. The University will regularly communicate
the details of new proposals to all employees who are eligible to participate
in the new University Human Resources System through written communication,
open meetings, and website postings as appropriate, so that employees will have
full information that will help them evaluate the merits of the new human
resource system compared to the then-current State human resource system.
Effective on the Effective Date of its initial Management
Agreement with the Commonwealth, and until amended as described below, the
University’s human resources systems shall consist of the following:
1. The current human resources system for faculty described
in the Virginia Tech Faculty Handbook and Special Research Faculty Handbook as
posted on the University’s website, http://www.policies.vt.edu/ , and
periodically amended;
2. The current human resources system for “Classified
Employees” as posted on the Virginia Department of Human Resource Management
website at http://www.dhrm.state.va.us/hrpolicy/policy.html and the
University’s website, http://www.policies.vt.edu/, and Human Resources’
website, http://www.hr.vt.edu, as periodically amended;
3. The Human Resources System for salaried nonfaculty
“Participating Covered Employees,” as posted on the University’s website,
http://www.policies.vt.edu, and Human Resources’ website,
http://www.hr.vt.edu/, as periodically amended; and
4. The Human Resources System for wage employees as set
forth in the current Virginia Tech policies, procedures, and guidelines, as
posted on the University’s website, http://www.policies.vt.edu/, and Human
Resources’ website, http://www.hr.vt.edu/, as periodically amended, and for
graduate students employed on assistantships as set forth in the Virginia Tech
Graduate School policies, as posted on the Graduate School website,
http://www.grads.vt.edu/, as periodically amended.
All the systems described above, except the system
described in paragraph 2, may be amended by the President, acting through the
Executive Vice President and Chief Operating Officer, consistent with these
human resources policies. The system described in paragraph 2 may be amended
only by the State.
B. Training in and Compliance with Applicable Provisions of
Law and Board of Visitors’ Human Resources Policies.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall take all necessary and reasonable steps to
assure (i) that the University officials who develop, implement and administer
the University Human Resources Systems authorized by Governing Law and these
human resources policies are knowledgeable regarding the requirements of the
Governing Law, other applicable provisions of law, these University human
resources policies, and other applicable Board of Visitors' human resources
policies affecting University employees, and (ii) that compliance with such
laws and human resources policies is achieved.
VI. HUMAN RESOURCES POLICIES.
The Human Resources Systems adopted by the University
pursuant to Governing Law and this Policy, as set forth in Section V above
shall embody the following human resources policies and principles:
A. Election by Salaried Nonfaculty University Employees.
Upon the adoption by the University of a University Human
Resources System, all salaried nonfaculty University employees who were in the
employment of the University as of the day prior to the Effective Date of its
initial Management Agreement with the Commonwealth, shall be given written
notice of their right to elect to participate in and be governed by either (i)
the State human resources program set forth in Chapters 28 (§ 2.2-2800 et seq.)
and 29 (§ 2.2-2900 et seq.) of Title 2.2 of the Code of Virginia and
administered by the Department of Human Resource Management, or (ii) the
University Human Resources System. A salaried nonfaculty University employee
who elects to continue to be governed by the State human resources program
described above shall continue to be governed by all State human resources and
benefit plans, programs, policies and procedures that apply to and govern State
employees. A salaried nonfaculty University employee who elects in writing to
participate in and be governed by the University Human Resources System, also,
by that election, shall be deemed to have elected to be eligible to participate
in and to be governed by the human resources, authorized alternative insurance,
and severance plans, programs, policies and procedures that are or may be
adopted by the University as part of that University Human Resources System.
Each such salaried nonfaculty University employee, shall be
given at least 90 days to make the election required by the prior paragraph.
Such 90 day period shall begin to run on the date on which the University Human
Resources System becomes effective for that University employee’s
classification of employees. If such a salaried nonfaculty University employee
does not make an election by the end of that specified election period, that
University employee shall be deemed not to have elected to participate in the
University Human Resources System. If such a salaried nonfaculty University employee elects to participate in the University Human Resources System, that
election shall be irrevocable. At least every two years, the University shall
offer to salaried nonfaculty University employees who have elected to continue
to participate in the state human resources program set forth in Chapters 28 (§
22.-2800 et seq.) and 29 (§ 2.2-2900 et seq.) of Title 2.2 of the Code of
Virginia, an opportunity to elect to participate in the University Human
Resources System; provided that, each time prior to offering such opportunity
to such salaried nonfaculty University employees, and at least once every two
years after the effective date of the University Human Resources System, the
University shall make available to each of its salaried nonfaculty University
employees a comparison of its human resources program for that classification
of salaried nonfaculty University employee with the State human resources
program for comparable State employees, including but not limited to a
comparability assessment of compensation and benefits. A copy of the human
resources program comparison shall be provided to the Department of Human
Resource Management.
B. Classification and Compensation.
1. General. The Systems shall include classification and
compensation plans that are fair and reasonable, and are based on the
availability of University financial resources. The plans adopted by the
University for its faculty and other Participating Covered Employees shall be
independent of, and need not be based on, the classification and compensation
plans of the Commonwealth, do not require the approval of any State agency or
officer, and shall be subject to the review and approval by the Board of
Visitors as set forth in paragraph 3 below. The University shall provide
information on its classification and compensation plans to all University
employees. The plans applicable to Participating Covered Employees may or may
not include changes in classification or compensation announced by the
Commonwealth depending on such factors as the availability of necessary
financial resources to fund any such changes, and subject to the review and
approval by the Board of Visitors of any major changes in the University’s
compensation plans.
2. Classification Plan. The Systems shall include one or
more classification plans for University employees that classify positions
according to job responsibilities and qualifications. On the Effective Date of
the University’s initial Management Agreement with the Commonwealth, and until
changed by the University, the classification plans shall be the same plans
that are in effect for each group of employees immediately prior to that
Effective Date.
3. Compensation Plan. The Systems shall include one or more
compensation plans for each University employee classification or group. On the
Effective Date of the University’s initial Management Agreement with the
Commonwealth, and until changed by the Department of Human Resource Management,
the compensation plan for Classified Employees shall be the compensation plan
in effect immediately prior to that Effective Date, known as the Commonwealth’s
Classified Compensation Plan. On that Effective Date, and until changed by the
University, the compensation plan or plans for all Participating Covered
Employees shall be the compensation plan or plans in effect immediately prior
to that Effective Date. The University may adopt one or more compensation plans
for Participating Covered Employees that are non-graded plan(s) based on
internal and external market data and other relevant factors to be determined
annually. Any major change in compensation plans for Participating Covered
Employees shall be reviewed and approved by the Board of Visitors before that
change becomes effective. Any change recommended in the compensation plans may
take into account the prevailing rates in the labor market for the jobs in
question, or for similar positions, the relative value of jobs, the competency
and skills of the individual employee, internal equity, and the availability of
necessary financial resources to fund the proposed change. The compensation
payable to University employees shall be authorized and approved only by
designated University officers delegated such authority by the University, and
shall be consistent with the approved compensation plan for the relevant
position or classification. Further approval by any other State Agency,
governmental body or officer is not required for setting, adjusting or
approving the compensation payable to individual Participating Covered
Employees.
4. Wages. The Systems shall include policies and procedures
for the authorization, computation and payment of wages, where appropriate, for
such premium pays as overtime, shift differential, on call, and call back, and
for the payment of hourly employees.
5. Payment of Compensation. The Systems shall include
policies and procedures for paying compensation to employees, including the
establishment of one or more payday schedules.
6. Work Schedule and Workweek. The Systems shall include
policies and procedures for the establishment of, and modifications to, work
schedules and workweeks for all University employees, including alternative
work schedules and sites, and telecommuting policies and procedures.
7. Other Classification and Compensation Policies and
Procedures. The Systems may include any other reasonable classification and
compensation policies and procedures the President, acting through the
Executive Vice President and Chief Operating Officer, deems appropriate.
C. Benefits.
The Systems shall provide fringe benefits to all benefits
eligible employees, including retirement benefits, health care insurance, life,
disability, and accidental death and dismemberment insurance. The benefits
provided shall include a basic plan of benefits for each benefits eligible
employee, and may include an optional benefits plan for benefits eligible
employees, including additional insurance coverage, long-term care, tax
deferred annuities, flexible reimbursement accounts, employee assistance
programs, employee intramural and recreational passes, and other wellness
programs. As provided in subsections B and C of § 23-38.119 of the Act, the
University may require Participating Covered Employees to pay all or a portion of
the cost of group life, disability and accidental death and dismemberment
insurance, which may be collected through a payroll deduction program.
Participating Covered Employees shall not be required to present evidence of
insurability for basic group life insurance coverage. The Board of Visitors may
elect to provide benefits through Virginia Retirement System group insurance
programs under the terms of and to the extent allowed by subsections B and D of
§ 23-38.119 of the Act or any other provision of law.
Notwithstanding the above, pursuant to subsection A of §
23-38.114 of the Act, and unless and until that section is amended, the state
retirement system, state health insurance program, and state workers’
compensation coverage program as they may be amended from time to time, shall
continue to apply to and govern all eligible University employees. If, however,
the University has been or is permitted by law other than the Act to establish
an alternative health insurance plan or an alternative faculty retirement plan
or plans, such alternative health insurance or faculty retirement plan or plans
shall apply to and govern the University employees included in such plan or
plans.
The Systems may provide different benefits plans for
reasonably different groups or classifications of employees, and may provide
benefits to part-time employees. On the Effective Date of the University’s
initial Management Agreement with the Commonwealth, and until changed by the
appropriate governing authority, the benefits plans provided by the University
to Classified Employees and Participating Covered Employees shall be the
benefits plans provided to that group or classification as of the date
immediately prior to that Effective Date. On or after that Effective Date,
alternative University group life, accidental death and dismemberment, and
short- and long-term disability plans may be provided to eligible Participating
Covered Employees, or at the election of the Board of Visitors and subject to
the execution of participation agreements as provided in subsections B and C of
§ 23-38.119 of the Act, they may be provided by the appropriate State programs,
but no contributions to the State programs by the University shall be required
for Participating Covered Employees who do not participate in the programs.
Subject to the provisions of the Act, any new plans, programs and material
changes permitted under current law in University employee benefit plans, other
than Classified Employee benefits plans, shall be approved by the Board of Visitors,
including the authority to increase the Cash Match Contribution rate up to the
limit permitted by the Code of Virginia based on available resources, and the
authority to implement cafeteria-style benefits for University employees other
than Classified Employees.
Insurance and all proceeds therefrom provided pursuant to §
23-38.119 of the Act shall be exempt from legal process and may be subject to
assignment as provided in subsection A of § 23-38.119 of the Act.
D. Employee Relations.
1. General. The Systems shall contain provisions that
protect the rights and privileges of University employees consistent with sound
management principles and fair employment practice law.
2. Employee Safety and Health. The Systems shall contain
provisions that promote workplace safety compliance with applicable law and
regulations.
3. Employee Work Environment. The Systems shall promote a
work environment that is conducive to the performance of job duties, and free
from intimidation or coercion in violation of State or federal law, including
sexual harassment or other discrimination.
4. Employee Recognition. The Systems may provide for the
use of leave awards and bonuses specific to policies and procedures for
awarding, honoring, or otherwise recognizing University employees, including
but not limited to those who have performed particularly meritorious service
for the University, have been employed by the University for specified periods
of time, or have retired from the University after lengthy service.
5. Counseling Services. The Systems shall provide
counseling services through the State’s Employee Assistance Program or a
University Employee Assistance Program to any eligible University employee
experiencing job-related difficulties and seeking counseling for those difficulties,
and shall establish the circumstances under which the time necessary to
participate in such counseling may be granted.
6. Unemployment Compensation. The Systems shall ensure that
University employees receive the full unemployment compensation benefits to
which they are legally entitled, and that the University's liability is limited
to legitimate claims for such benefits.
7. Workers’ Compensation. The Systems shall ensure that
University employees have workers’ compensation benefits to which they are
legally entitled pursuant to the State Employees’ Workers Compensation Program
administered by the Department of Human Resource Management.
8. Performance Planning and Evaluation. The Systems shall
include one or more performance planning and evaluation processes for
University employees that (i) establish and communicate the University's
performance expectations, (ii) help develop productive working relationships,
(iii) allow employees to present their views concerning their performance, (iv)
identify areas for training or professional development, (v) establish the
process by which evaluations shall be conducted, (vi) clarify how superlative
or inadequate performance shall be addressed, and (vii) ensure that all
University employees are provided relevant information on the evaluation
process. The Systems may include separate performance and evaluation processes
for reasonably distinguishable groups of University employees. On the Effective
Date of the University’s initial Management Agreement with the Commonwealth,
the existing merit-based performance management system for faculty shall
continue, until amended by the University. On or after that Effective Date,
nonfaculty salaried Participating Covered Employees may be subject to a
variable merit-based performance management system.
9. Standards of Conduct and Performance. In order to
protect the well-being and rights of all employees and to ensure safe,
efficient University operations and compliance with the law, the Systems shall
establish rules of personal conduct and standards of acceptable work
performance for University salaried nonfaculty employees and policies for
corrective discipline. In general, the policies for corrective discipline shall
serve to (i) establish a uniform and objective process for correcting or
disciplining unacceptable conduct or work performance, (ii) distinguish between
less serious and more serious actions of misconduct and provide corrective
action accordingly, and (iii) limit corrective action to employee conduct occurring
only when employees are at work or are otherwise representing the University in
an official or work-related capacity, unless otherwise specifically provided by
the policies of the Systems or other applicable law. The Systems may provide
for a probationary period for new and re-employed University salaried
nonfaculty employees, during which period the policies for corrective
discipline shall not be applicable and the employee may not use the grievance
procedure set forth in the next paragraph. The Systems may include separate
rules of personal conduct and standards of acceptable work performance and
policies for corrective discipline for reasonably distinguishable groups of
University employees.
10. Grievance Procedure. As provided in the Governing Law,
employees shall be encouraged to resolve employment-related problems and
complaints informally, and shall be permitted to discuss their concerns freely
and without fear of retaliation with immediate supervisors and management. In
the event that such problems cannot be resolved informally, all salaried
nonfaculty University employees, regardless of their date of hire, shall have
access, as provided in subsection A of § 23-38.114 and in § 23-38.117 of the
Act, to the State Grievance Procedure, Chapter 30 (§ 2.2-3000 et seq.) of Title
2.2 of the Code of Virginia, to the extent it was applicable to their
classification of employees prior to the Effective Date of the University’s
initial Management Agreement with the Commonwealth. On that Effective Date, and
until changed by the University, the faculty grievance procedures in effect
immediately prior to the Effective Date shall continue.
11. Discrimination Complaints. If a Classified Employee
believes discrimination has occurred, the Classified Employee may file a complaint
with the Department of Human Resource Management, Office of Equal Employment
Services, with the appropriate University office, or with the appropriate
federal agencies. All Participating Covered Employees and applicants for
employment after the Effective Date of the University’s initial Management
Agreement with the Commonwealth shall file a complaint with the appropriate
University office or with the appropriate federal agencies.
12. Layoff Policy. The Systems shall include one or more
layoff policies for salaried University employees who lose their jobs for
reasons other than their job performance or conduct, such as a reduction in
force or reorganization at the University. These University layoff policies
shall govern such issues as (i) whether there is a need to effect a layoff,
(ii) actions to be taken prior to a layoff, (iii) notice to employees affected
by a layoff, (iv) placement options within the University or its respective
major divisions and within other parts of the University, (v) the preferential
employment rights, if any, of various University employees, (vi) the effect of
layoff on leave and service, and (vii) the policy for recalling employees. In
accordance with the terms of the Act, University employees who: (i) were
employed prior to the Effective Date of the University’s initial Management
Agreement with the Commonwealth, (ii) would otherwise be eligible for severance
benefits under the Workforce Transition Act, (iii) were covered by the Virginia
Personnel Act prior to that Effective Date, and (iv) are separated because of a
reduction in force shall have the same preferential hiring rights with State
agencies and other executive branch institutions as Classified Employees have
under § 2.2-3201 of the Code of Virginia.
Conversely, the University shall recognize the hiring
preference conferred by § 2.2-3201 of the Code of Virginia, on State employees
who were hired by a State agency or executive branch institution before the
Effective Date of the University’s initial Management Agreement with the
Commonwealth and who were separated after that date by that State agency or
executive branch institution because of a reduction in workforce. If the
University has adopted a classification system pursuant to § 23-38.116 of the
Act that differs from the classification system administered by the Department
of Human Resource Management, the University shall classify the separated
employee according to its classification system and shall place the separated
employee appropriately. The University may include separate policies for
reasonably distinguishable groups of University employees. On or after the
Effective Date of the University’s initial Management Agreement with the
Commonwealth, all employees from other State agencies and executive branch institutions
who are placed by the University under the provisions of the State Layoff
Policy shall be Participating Covered Employees.
13. Severance Benefits. In accordance with the terms of the
Act, the University shall adopt severance policies for salaried Participating
Covered Employees who are involuntarily separated for reasons unrelated to
performance or conduct. The terms and conditions of such policies shall be
determined by the Board of Visitors. Classified Employees who otherwise would
be eligible and were employed prior to the Effective Date of the University’s
initial Management Agreement with the Commonwealth shall be covered by the
Workforce Transition Act, Chapter 32 (§ 2.2-3200 et seq.) of Title 2.2 of the
Code of Virginia. The University and the Board of the Virginia Retirement
System may negotiate a formula according to which cash severance benefits may
be converted to years of age or creditable service for Participating Covered
Employees who participate in the Virginia Retirement System. An employee
becoming, on such Effective Date, a Covered Employee shall not constitute a
severance or reduction in force to which severance or Workforce Transition Act
policies would apply.
14. Use of Alcohol and Other Drugs. The Systems shall
include policies and procedures that (i) establish and maintain a work
environment at the University that is free from the adverse effect of alcohol
and other drugs, (ii) are consistent with the federal Drug-Free Workplace Act
of 1988 and with the Virginia Polytechnic Institute and State University
Alcohol and Other Drugs Policy, (iii) describe the range of authorized
disciplinary action, including termination where appropriate, for violations of
such policies and procedures, and the process to be followed in taking such
disciplinary action, (iv) provide University employees access to assistance and
treatment for problems involving alcohol and other drugs, (v) provide for the
circumstances under which employees are required to report certain violations
of the policies and procedures to their supervisor, and the University is
required to report those violations to a federal contracting or granting
agency, (vi) describe the circumstances under which personnel records of
actions taken under the University’s alcohol and other drugs policy shall not
be kept confidential, and (vii) provide notice to University employees of the
scope and content of the University alcohol and other drugs policy. As part of
this alcohol and other drugs policy, and in compliance with the federal Omnibus
Transportation Employee Testing Act of 1991, the Systems may provide for
pre-employment, reasonable suspicion, random, post-accident, return-to-duty and
follow-up alcohol and other drug testing for University positions that are
particularly safety sensitive, such as those requiring a Commercial Driver’s
License or the provision of patient care.
15. Background Checks. The Systems shall include a process
for conducting background checks, which may include but is not limited to
reference checks, educational/ professional credentialing checks, and
conviction and driver’s records checks on applicants for full-time or part-time
positions at the University, and for addressing situations where employees do
not disclose a conviction on their application or otherwise falsify their
application with regard to information concerning their education/professional
credential and/or prior convictions.
16. Other Employee Relations Policies and Procedures. The
Systems shall include any other reasonable employee relations policies or
procedures that the President, acting through the Executive Vice President and
Chief Operating Officer, deems appropriate, which may include, but are not
limited to, policies or procedures relating to orientation programs for new or
re-employed University employees, an employee suggestion program, the
responsibility of University employees for property placed in their charge,
work breaks, inclement weather and emergencies, and employment outside the
University.
E. Leave and Release Time.
The Systems shall include policies and procedures regarding
leave for eligible employees. The Systems shall provide reasonable paid leave
for purposes such as holidays, vacation, or other personal uses. The Systems
may provide for release time for such matters as the donation of blood,
participation in an employee assistance program and other appropriate
employment-related matters. On or after the Effective Date of its initial
Management Agreement with the Commonwealth, and until a new program is adopted
by the appropriate authority, the University shall continue to provide leave
and release time to Participating Covered Employees in accordance with the
leave and release time policies and procedures applicable to each
classification of employees prior to that Effective Date. On or after that
Effective Date, the University may provide an alternative leave and release
time system for salaried nonfaculty Participating Covered Employees.
F. Equal Employment Opportunity, Nondiscrimination,
Employment, and Separation.
1. Equal Employment Opportunity and Nondiscrimination. The
Systems shall contain policies and procedures to ensure that all aspects of
human resources management, including the employment of University employees,
meet all requirements of federal and state law, and of the relevant policies of
the Board of Visitors, with regard to equal employment opportunity and
nondiscrimination.
2. Employment. The Systems shall include policies and
procedures for the recruitment, selection and hiring of University employees
that are based on merit and fitness, including where appropriate a requirement
for job posting, interviews, pre-employment testing, pre-employment drug
testing, reference checks and conviction record checks. On and after the
Effective Date of its initial Management Agreement with the Commonwealth, the
University shall post all salaried nonfaculty position vacancies through the
University’s job posting system, the Commonwealth’s job posting system, and
other external media as appropriate. The Systems shall establish designated
veterans' re-employment rights in accordance with applicable law. In order to
encourage employees to attain the highest level positions for which they are
qualified, and to compensate employees for accepting positions of increased
value and responsibility, the Systems shall include policies and procedures
governing the promotion of employees, including the effect of promotion on an
employee's compensation.
On or after the Effective Date of the University’s initial
Management Agreement with the Commonwealth, all employees hired from other
state agencies shall be Participating Covered Employees. University Classified
Employees who change jobs within the University through a competitive
employment process – i.e., promotion or transfer – shall have the choice of
remaining a Classified Employee or becoming a Participating Covered Employee.
If a Classified Employee elects to become a Participating Covered Employee,
that decision shall be irrevocable.
3. Notice of Separation. The Systems shall include policies
and procedures requiring reasonable notice, where appropriate, of a decision
either by the employee or by the University to separate the employee from the
University in accordance with policies governing performance, conduct, or
layoff.
G. Information Systems.
The University shall provide an electronic file transfer of
information on all salaried University employees and shall continue to provide
the Employee Position Reports to meet the human resources reporting
requirements specified by law or by request of the Governor or the General
Assembly, unless the University is specifically exempted from those
requirements. The University shall conduct assessments to demonstrate its
accountability for human resources practices that comply with laws and regulations.
The Department of Human Resource Management and the University have entered
into a Memorandum of Understanding, attached hereto as Attachment 3, which may
be amended from time to time by agreement of the parties, regarding the
specific data and reporting requirements. The University shall be accountable
for ensuring the timeliness and integrity of the data transmitted to the
Department of Human Resources Management.
VII. CONTINUED APPLICABILITY OF OTHER PROVISIONS OF THE
CODE OF VIRGINIA AND OTHER BOARD OF VISITORS’ POLICIES AFFECTING UNIVERSITY
PERSONNEL.
On and after the Effective Date of its initial Management
Agreement with the Commonwealth, University employees shall be subject to the
terms and conditions of the Act and the Management Agreement between the
Commonwealth and the University. Classified Employees shall continue to be
subject to the human resources policies and exceptions to those policies
adopted or approved by the Department of Human Resource Management.
In addition, all University employees also shall remain
subject to any other human resources policies adopted by the Board of Visitors
applicable to University personnel unless University employees or a subset
thereof are specifically exempted from those other human resources policies
either by those other policies or by this Policy.
ATTACHMENT 3
Memorandum of Understanding
Between Virginia Polytechnic Institute and State University and the
Department of Human Resources Management Regarding
The Reporting of Human Resources Management Data
This Memorandum of Understanding, which may be amended from
time to time by the agreement of all parties, is an attachment to the Policy
Governing Human Resources for Participating Covered Employees and Other
University Employees pursuant to the Restructured Higher Education Financial
and Administrative Operations Act of 2005, and is hereby entered into between
Virginia Polytechnic Institute and State University and the Department of Human
Resource Management (DHRM).
I. This document outlines the provisions for information
management pertaining to human resources data, consistent with the objectives
to enable DHRM to meet the Commonwealth’s reporting requirements, to ensure
compliance with relevant federal and state laws and regulations, and to do so
through efficient and cost-effective methods.
1. In lieu of data entry into the state’s Personnel
Management Information System (PMIS), data will be transmitted through an
electronic file transfer to update DHRM’s warehouse.
a. The University will provide a flat file of designated
personnel data. For “Classified Employees,” the data provided will match DHRM’s
data values for the designated fields. For salaried “Participating Covered
Employees,” the data provided will include the University’s data values for the
designated fields. The University will provide a data dictionary to DHRM. The
file of designated data will be specifically described by an addendum to this
Memorandum upon the agreement of the University and DHRM.
b. The University will provide a second flat file of
salaried personnel actions for “Classified Employees” and salaried
“Participating Covered Employees,” such as promotions, separations, and salary
adjustments. The file of relevant personnel actions and designated data to be
provided for each action will be specifically described by an addendum to this
Memorandum upon the agreement of the University and DHRM.
2. DHRM will accept the federal Affirmative Action Plan
(AAP), including the adverse impact analyses of employment and compensation
actions that are part of the AAP, as demonstration of the University’s
compliance with relevant federal and state employment laws and regulations.
3. The University may key data into the Benefits Enrollment
System or provide a batch file, or employees may use Employee Direct (employee
self-service).
4. Other reports to be provided by the University include
the following:
a. Monthly Employee Position Report.
b. Annual report on salaried, wage, and contract employees.
The undersigned hereby agree to the provisions contained in
the MOU.
APPROVALS:
Virginia Polytechnic Institute and State University:
By:
..............................................................................Date.......................................
Executive Vice President and Chief Operating Officer
Department of Human Resources Management:
By:
..............................................................................Date.......................................
Director, Department of Human Resource Management
EXHIBIT F
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING
FINANCIAL OPERATIONS AND MANAGEMENT
THE BOARD OF VISITORS OF VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
POLICY GOVERNING FINANCIAL OPERATIONS AND MANAGEMENT
I. PREAMBLE.
The Restructured Higher Education Financial and
Administrative Operations Act (the Act), Chapter 4.10 (§ 23-38.88 et seq.) of
Title 23 of the Code of Virginia, establishes by law a process for granting
additional authority to institutions of higher education for financial
operations and management, subject to the adoption of policies by their governing
boards and the approval of management agreements to be negotiated with the
Commonwealth. The following provisions of this Policy constitute the adopted
Board of Visitors policies regarding Virginia Polytechnic Institute and State University’s financial operations and management.
This Policy is intended to cover the authority that may be
granted to the University pursuant to Subchapter 3 of the Act. Any other powers
and authorities granted to the University pursuant to the Appropriation Act, or
any other sections of the Code of Virginia, including other provisions of the
Act and the University’s Enabling Legislation, are not affected by this Policy.
II. DEFINITIONS.
As used in this policy, the following terms shall have the
following meanings, unless the context requires otherwise:
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of
the Code of Virginia.
“Board of Visitors” or “Board” means the Board of Visitors
of Virginia Polytechnic Institute and State University.
“Covered Institution” means, on or after the Effective Date
of its initial Management Agreement with the Commonwealth of Virginia, a public
institution of higher education of the Commonwealth that has entered into a
Management Agreement with the Commonwealth to be governed by the provisions of
Subchapter 3 of the Act.
“Enabling Legislation” means those chapters, other than
Chapter 4.10, of title 23 of the Code of Virginia, as amended, creating,
continuing, or otherwise setting forth the powers, purposes, and missions of
the University.
“Effective Date” means the effective date of the initial
Management Agreement between the University and the Commonwealth.
“Management Agreement” means the agreement required by subsection
D of § 23-38.88 of the Act between the University and the Commonwealth of Virginia.
“State Tax Supported Debt” means bonds, notes or other
obligations issued under Article X, Section 9(a), 9(b), or 9(c), or 9(d), if
the debt service payments are made or ultimately are to be made from general
government funds, as defined in the December 20, 2004 Report to the Governor
and General Assembly of the Debt Capacity Advisory Committee or as that
definition is amended from time to time.
“University” means Virginia Polytechnic Institute and State University, consisting of the University Division (State Agency 208) and Virginia Cooperative Extension and the Agriculture Experiment Station Division (State
Agency 229).
III. SCOPE OF POLICY.
This Policy applies to the University’s responsibility for
management, investment and stewardship of all its financial resources,
including but not limited to, general, non-general and private funds. This
responsibility includes maintaining an independent uniform system of accounting,
financial reporting, and internal controls adequate to protect and account for
the University’s financial resources.
Virginia Cooperative Extension and the Agriculture
Experiment Station Division shall receive the benefits of this Policy as it is implemented
by the University on behalf of Virginia Cooperative Extension and the
Agriculture Experiment Station Division, but Virginia Cooperative Extension and
the Agriculture Experiment Station Division shall not receive any additional
independent financial operations and management authority as a result of this
Management Agreement beyond the independent financial operations and management
authority that it had prior to the Effective Date of the University’s initial
Management Agreement with the Commonwealth or that it may be granted by law in
the future.
IV. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties and
responsibilities set forth in, and for the appropriate implementation of, this
Policy. Consistent with this full and ultimate accountability, however, the
Board may, pursuant to its legally permissible procedures, specifically
delegate either herein or by separate Board resolution the duties and
responsibilities set forth in this Policy to a person or persons within the
University, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the University’s usual delegation policies and
procedures.
V. FINANCIAL MANAGEMENT AND REPORTING SYSTEM.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall continue to be authorized by the Board to
maintain existing and implement new policies governing the management of
University financial resources. These policies shall continue to (i) ensure
compliance with Generally Accepted Accounting Principles, (ii) ensure consistency
with the current accounting principles employed by the Commonwealth, including
the use of fund accounting principles, with regard to the establishment of the
underlying accounting records of the University and the allocation and
utilization of resources within the accounting system, including the relevant
guidance provided by the State Council of Higher Education for Virginia chart
of accounts with regard to the allocation and proper use of funds from specific
types of fund sources, (iii) provide adequate risk management and internal
controls to protect and safeguard all financial resources, including moneys
transferred to the University pursuant to a general fund appropriation, and
ensure compliance with the requirements of the Appropriation Act.
The financial management system shall continue to include a
financial reporting system to satisfy both the requirements for inclusion into
the Commonwealth’s Comprehensive Annual Financial Report, as specified in the
related State Comptroller’s Directives, and the University’s separately audited
financial statements. To ensure observance of limitations and restrictions
placed on the use of the resources available to the University, the accounting
and bookkeeping system of the University shall continue to be maintained in
accordance with the principles prescribed for governmental organizations by the
Governmental Accounting Standards Board.
In addition, the financial management system shall continue
to provide financial reporting for the President, acting through the Executive
Vice President and Chief Operating Officer, and the Board of Visitors to enable
them to provide adequate oversight of the financial operations of the
University. Upon the Effective Date of the initial Management Agreement between
the University and the Commonwealth, except for the recordation of daily
revenue deposits of State funds as specified in Section VII below, the
University shall not be required to record its financial transactions in the
Commonwealth’s Accounting and Reporting System (CARS), including the current
monthly interfacing with CARS, or to record its financial transactions in any
subsequent Commonwealth financial systems that replace CARS or are in addition
to CARS, but shall have its own financial reporting system. The University’s
financial reporting system shall provide (i) summary monthly reports for State
agencies including, but not limited to, the Department of Accounts, the
Department of Planning and Budget, the Joint Legislative Audit and Review
Commission, the Auditor of Public Accounts, and the State Council of Higher
Education for Virginia, and for the Chairmen of the Senate Committee on Finance
and the House Committee on Appropriations at a sufficient level of detail, on
such schedule, and using such format that is compatible with the Commonwealth’s
accounting system, as may be requested by the requesting State agency, and (ii)
such other special reports as may be requested from time to time.
VI. FINANCIAL MANAGEMENT POLICIES.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall create and implement any and all financial
management policies necessary to establish a financial management system with
adequate risk management and internal control processes and procedures for the
effective protection and management of all University financial resources. Such
policies will not address the underlying accounting principles and policies
employed by the Commonwealth and the University, but rather will focus on the
internal operations of the University's financial management. These policies
shall include, but need not be limited to, the development of a tailored set of
finance and accounting practices that seek to support the University's specific
business and administrative operating environment in order to improve the
efficiency and effectiveness of its business and administrative functions. In
general, the system of independent financial management policies shall be
guided by the general principles contained in the Commonwealth’s Accounting
Policies and Procedures such as establishing strong risk management and
internal accounting controls to ensure University financial resources are
properly safeguarded and that appropriate stewardship of public funds is
obtained through management’s oversight of the effective and efficient use of
such funds in the performance of University programs.
Upon the Effective Date of its initial Management Agreement
with the Commonwealth, the University shall continue to follow the
Commonwealth’s accounting policies until such time as specific alternate
policies can be developed, approved and implemented. Such alternate policies
shall include applicable accountability measures and shall be submitted to the
State Comptroller for review and comment before they are implemented by the
University.
VII. FINANCIAL RESOURCE RETENTION AND MANAGEMENT.
Under § 23-38.104(A)(i) of the Act, subject to applicable
accountability measures and audits, the University shall have the power and
authority to manage all monies received by it. All State general funds to be
allocated to the University shall remain subject to the appropriations process.
Pursuant to subsection C of § 23-9.6:1.01 of the Code of
Virginia, the State Council of Higher Education for Virginia (SCHEV) annually shall
assess and certify to the Governor and General Assembly the degree to which
each public institution of higher education of the Commonwealth has met the
financial and administrative management and educational-related performance
benchmarks called for by that subsection and approved as part of the
Appropriation Act then in effect for the State goals and objectives set forth
in subdivisions B 1 through B 11 of § 23-38.88 of the Act. Pursuant to §
2.2-5005 of the Code of Virginia, beginning with the fiscal year that
immediately follows the first full fiscal year for which the financial and
administrative management and educational-related performance benchmarks
described in § 23-9.6:1.01 of the Code of Virginia, are effective, as provided
in a general Appropriation Act, and for all fiscal years thereafter, each
public institution of higher education of the Commonwealth that (i) has been
certified during the fiscal year by SCHEV as having met such institutional
performance benchmarks and (ii) meets the conditions prescribed in subsection B
of § 23-38.88 of the Act, shall receive certain financial incentives, including
the interest on the tuition and fees and other non-general fund Educational and
General Revenues deposited into the State Treasury by the public institution of
higher education.
Consistent with the prior paragraph, beginning with the
fiscal year following the first fiscal year for which it has received such
certification from SCHEV, the University is authorized to hold and invest
tuition, Educational and General (E&G) fees, research and sponsored program
funds, auxiliary enterprise funds, and all other non-general fund revenues
subject to the following requirements:
i) The University shall deposit such funds in the State
Treasury pursuant to the State process in place at the time of such deposit;
ii) Such non-general funds deposited in the State Treasury
shall be disbursed as provided in Section IX below;
iii) The University shall remit to the State Comptroller
quarterly and the State Comptroller shall hold in escrow all interest earned on
the University's tuition and fees and other non-general fund Educational and
General Revenues. Upon receipt of the required State Council of Higher
Education for Virginia certification that the University has met such
institutional performance benchmarks and the conditions prescribed in
subsection B of § 23-38.88 of the Act, the Governor shall include in the next
budget bill a non-general fund appropriation, payable no later than July 1 of
the immediately following fiscal year, equivalent to the amount deposited in
the escrow account as the financial incentive provided in subdivision 1 of §
2.2-5005, after which time the University may expend the funds for purposes
related to its mission. If public institutions of higher education of the
Commonwealth are permitted, or the University in particular is permitted, by
the Appropriation Act or other law to retain or be paid the interest the
Commonwealth would have earned on sponsored programs and research funds, then
this paragraph shall not apply to such interest on such funds, and such
interest shall not be held in escrow.
iv) If in any given year the University does not receive
the certification from the State Council of Higher Education for Virginia that
it has met for that year the institutional benchmarks called for by subsection
C of § 23-9.6:1.01 and approved in the then-current Appropriation Act, the
Comptroller shall transfer to the general fund the balance in the escrow
account as of June 30 of that year.
v) Beginning on the effective date of its initial
Management Agreement with the University until the beginning of the first
fiscal year following the fiscal year for which it has received the required
certification from SCHEV, the University shall continue to deposit tuition and
all other non-general funds with the State Treasurer by the same process that
it would have been required to use if it had not entered into a Management
Agreement with the Commonwealth.
vi) On the first business day of the first fiscal year
following the fiscal year for which it has received the required certification
from SCHEV, the University may draw down all cash balances held by the State
Treasurer on behalf of the University related to tuition, E&G fees,
research and sponsored programs, auxiliary enterprises, and all other
non-general fund revenues.
vii) The Commonwealth shall retain all funds related to
general fund appropriations, but shall pay these funds to the University as
specified in Section IX below.
The University also shall have sum sufficient appropriation
authority for all non-general funds as approved by the Governor and the General
Assembly in the Commonwealth’s biennial appropriations process, and shall
report to the Department of Planning and Budget (i) its estimate of the
non-general fund revenues for the sum sufficient appropriation to be included
in the biennial Budget Bill for each of the two years in the next biennium by
November 1 of each odd numbered year and the estimate to be included in the
Budget Bill for the first and second year of the then-current biennium by
November 1 of each even numbered year, and (ii) report its actual non-general
fund revenues for each fiscal year to the Department of Planning and Budget by
July 31 of the subsequent fiscal year.
The Board of Visitors shall retain the authority to
establish tuition, fee, room, board, and other charges, with appropriate
commitment provided to need-based grant aid for middle- and lower-income
undergraduate Virginians. Except as provided otherwise in the Appropriation Act
then in effect, it is the intent of the Commonwealth and the University that
the University shall be exempt from the revenue restrictions in the general
provisions of the Appropriation Act related to non-general funds. In addition,
unless prohibited by the Appropriation Act then in effect, it is the intent of
the Commonwealth and the University that the University shall be entitled to
retain non-general fund savings generated from changes in Commonwealth rates
and charges, including but not limited to health, life, and disability
insurance rates, retirement contribution rates, telecommunications charges, and
utility rates, rather than reverting such savings back to the Commonwealth.
This financial resource policy assists the University by providing the
framework for retaining and managing non-general funds, for the receipt of
general funds, and for the use and stewardship of all these funds.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall continue to provide oversight of the
University’s cash management system which is the framework for the retention of
non-general funds. The Internal Audit Department of the University shall
periodically audit the University’s cash management system in accordance with
appropriate risk assessment models and make reports to the Audit and Compliance
Committee of the Board of Visitors. Additional oversight shall continue to be
provided through the annual audit and assessment of internal controls performed
by the Auditor of Public Accounts. For the receipt of general and non-general
funds, the University shall conform to the Security for Public Deposits Act,
Chapter 44 (§ 2.2-4400 et seq.) of Title 2.2 of the Code of Virginia as it
currently exists and from time to time may be amended.
VIII. ACCOUNTS RECEIVABLE MANAGEMENT AND COLLECTION.
The President, through the Executive Vice President and
Chief Operating Officer, shall continue to be authorized to create and
implement any and all Accounts Receivable Management and Collection policies as
part of a system for the management of University financial resources. The
policies shall be guided by the requirements of the Virginia Debt Collection
Act, Chapter 48 (§ 2.2-4800 et seq.) of the Code of Virginia, such that the
University shall take all appropriate and cost effective actions to
aggressively collect accounts receivable in a timely manner.
These shall include, but not be limited to, establishing
the criteria for granting credit to University customers; establishing the
nature and timing of collection procedures within the above general principles;
and the independent authority to select and contract with collection agencies
and, after consultation with the Office of the Attorney General, private
attorneys as needed to perform any and all collection activities for all
University accounts receivable such as reporting delinquent accounts to credit
bureaus, obtaining judgments, garnishments, and liens against such debtors, and
other actions. In accordance with sound collection activities, the University
shall continue to utilize the Commonwealth’s Debt Set-Off Collection Programs,
shall develop procedures acceptable to the Tax Commissioner and the State
Comptroller to implement such Programs, and shall provide a quarterly summary report
of receivables to the Department of Accounts in accordance with the reporting
procedures established pursuant to the Virginia Debt Collection Act.
IX. DISBURSEMENT MANAGEMENT.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall continue to be authorized to create and
implement any and all disbursement policies as part of a system for the
management of University financial resources. The disbursement management
policies shall continue to define the appropriate and reasonable uses of all
funds, from whatever source derived, in the execution of the University’s
operations. These policies also shall continue to address the timing of
appropriate and reasonable disbursements consistent with the Prompt Payment
Act, and the appropriateness of certain goods or services relative to the
University’s mission, including travel-related disbursements. Further, the
University’s disbursement policy shall continue to provide for the mechanisms
by which payments are made including the use of charge cards, warrants, and
electronic payments. Since the University no longer will interface to the CARS
system or any replacement for the CARS system for disbursements, the University
shall establish its own mechanisms for electronic payments to vendors through
Electronic Data Interchange (EDI) or similar process and payments to the
Commonwealth’s Debt Set-Off Collection Programs.
Beginning with the fiscal year after the first fiscal year
for which it first receives the required certification from SCHEV, the
University may draw down its general fund appropriations (subject to available
cash) and tuition and E&G fees and other non-general fund revenues from the
State Treasury. Such funds shall be available to the University for disbursement
as provided in the then-current rules of the Automated Clearing House (ACH)
Network. The draw down of funds may be initiated in accordance with the
following schedule:
i) The University may draw down one-twenty-fourth
(1/24) of its annual general fund appropriation for Educational and General
programs on the first and fifteenth days of each month, and up to 50% of its
annual general fund appropriation for Student Financial Assistance on or after
September 1 of each year with the remaining 50% to be drawn on or after
February 1 of each year in order to meet student obligations;
ii) The University may draw down the sum of all tuition and
E&G fees and all other nongeneral revenues deposited to the State Treasury
each day on the same business day they were deposited; and
iii) The University anticipates that expenditures could
exceed available revenues from time to time during the year if the above
disbursement schedule is used. When the University projects a cash deficit is
likely in activities supported by general fund appropriations, the University
may make a request to the State Comptroller for an early draw on its
appropriated general funds deposited in the State Treasury, in a form and
within a timeframe agreeable to the parties, in order to cover expenditures.
These disbursement policies shall authorize the President,
acting through the Executive Vice President and Chief Operating Officer, to
independently select, engage, and contract for such consultants, accountants,
and financial experts, and other such providers of expert advice and
consultation, and, after consultation with the Office of the Attorney General,
private attorneys, as may be necessary or desirable in his or her discretion.
The policies also shall continue to include the ability to locally manage and
administer the Commonwealth’s credit card and cost recovery programs related to
disbursements, subject to any restrictions contained in the Commonwealth’s
contracts governing those programs, provided that the University shall submit
the credit card and cost recovery aspects of its financial and operations
policies to the State Comptroller for review and comment prior to implementing
those aspects of those policies. The disbursement policies shall ensure that
adequate risk management and internal control procedures shall be maintained
over previously decentralized processes for public records, payroll, and
non-payroll disbursements. The University shall continue to provide summary
quarterly prompt payment reports to the Department of Accounts in accordance
with the reporting procedures established pursuant to the Prompt Payment Act.
The University’s disbursement policies shall be guided by
the principles of the Commonwealth’s policies as included in the Commonwealth’s
Accounting Policy and Procedures Manual. Upon the Effective Date of its initial
Management Agreement with the Commonwealth, the University shall continue to
follow the Commonwealth’s disbursement policies until such time as specific
alternative policies can be developed, approved and implemented. Such alternate
policies shall be submitted to the State Comptroller for review and comment
prior to their implementation by the University.
X. DEBT MANAGEMENT.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall continue to be authorized to create and
implement any and all debt management policies as part of a system for the
management of University financial resources.
Pursuant to § 23-38.108(B) of the Act, the University shall
have the authority to issue bonds, notes, or other obligations that do not
constitute State Tax Supported Debt, as determined by the Treasury Board, and
that are consistent with debt capacity and management policies and guidelines
established by its Board of Visitors, without obtaining the consent of any
legislative body, elected official, commission, board, bureau, or agency of the
Commonwealth or of any political subdivision, and without any proceedings or
conditions other than those specifically required by Subchapter 3 of the Act; provided
that, the University shall notify the Treasurer of Virginia of its intention to
issue bonds pursuant to this Policy at the time it adopts the bond issuance
planning schedule for those bonds. Any new or revised debt capacity and
management policy shall be submitted to the Treasurer of Virginia for review
and comment prior to its adoption by the University.
The University recognizes that there are numerous types of
financing structures and funding sources available each with specific benefits,
risks, and costs. All potential funding sources shall be reviewed by the
President, acting through the Executive Vice President and Chief Operating
Officer, within the context of the overall portfolio to ensure that any
financial product or structure is consistent with the University’s objectives.
Regardless of the financing structure(s) utilized, the President, acting
through the Executive Vice President and Chief Operating Officer, shall obtain
sufficient documentation to gain a full understanding of the transaction,
including (i) the identification of potential risks and benefits, and (ii) an
analysis of the impact on University creditworthiness and debt capacity. All
such debt or financial products issued pursuant to the provisions of §§
23.38-107 and 23.38-108 of the Act shall be authorized by resolution of the
Board, providing that they do not constitute State Tax Supported Debt.
XI. INVESTMENT POLICY.
It is the policy of the University to invest its operating
and reserve funds solely in the interest of the University and in a manner that
will provide the highest investment return with the maximum security while
meeting daily cash flow demands and conforming to the Investment of Public
Funds Act (§ 2.2-4500 et seq. of the Code of Virginia). Investments shall be made
with the care, skill, prudence and diligence under the circumstances then
prevailing that a prudent person acting in a like capacity and familiar with
such matters would use in the conduct of an enterprise of a like character and
with like aims.
Endowment investments shall be invested and managed in
accordance with the Uniform Management of Institutional Funds Act, §§ 55-268.1
through 55-268.10, and § 23-76.1 of the Code of Virginia.
The Board of Visitors shall periodically review and approve
the investment guidelines governing the University’s operating and reserve
funds.
XII. INSURANCE AND RISK MANAGEMENT.
By July 1 of each odd-numbered year, the University shall
inform the Secretary of Finance of any intent during the next biennium to
withdraw from any insurance or risk management program made available to the
University through the Commonwealth’s Division of Risk Management and in which
the University is then participating, to enable the Commonwealth to complete an
adverse selection analysis of any such decision and to determine the additional
costs to the Commonwealth that would result from any such withdrawal. If upon
notice of such additional costs to the Commonwealth, the University proceeds to
withdraw from the insurance or risk management program, the University shall
reimburse the Commonwealth for all such additional costs attributable to such
withdrawal as determined by the Commonwealth's actuaries. Such payment shall be
made in a manner agreeable to both the University and the Commonwealth.
2. That the following Chapter 2 shall hereafter be known as
the "2006 Management Agreement Between the Commonwealth of Virginia and The College of William and Mary in Virginia:"
CHAPTER 2.
MANAGEMENT AGREEMENT
BY AND BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE COLLEGE OF WILLIAM AND MARY IN VIRGINIA
This MANAGEMENT AGREEMENT, executed this 15th day of
November, 2005, by and between the Commonwealth of Virginia (hereafter, the
Commonwealth) and The College of William and Mary in Virginia (hereafter, the
College) provides as follows:
RECITALS
WHEREAS, the College has satisfied the conditions precedent
set forth in subsections A and B of § 23-38.97 of the Code of Virginia to
become a public institution of higher education of the Commonwealth governed by
Subchapter 3 (§ 23-38.91 et seq.) of the Restructured Higher Education
Administrative and Financial Operations Act, Chapter 4.10 (§ 23-38.88 et seq.)
of Title 23 of the Code of Virginia (Subchapter 3 and the Act, respectively),
as evidenced by:
1. Board of Visitors Approval. The minutes of a
meeting of the Board of Visitors of the College held on April 22, 2005,
indicate that an absolute two-thirds or more of the members voted to approve
the resolution required by subdivision A 1 of § 23-38.97 of the Act;
2. Written Application to the Governor. The
College has submitted to the Governor a written Application, dated November 2,
2005, with copies to the Chairmen of the House Committee on Appropriations, the
House Committee on Education, the Senate Committee on Finance, and the Senate
Committee on Education and Health, expressing the sense of its Board of
Visitors that the College is qualified to be, and should be, governed by
Subchapter 3 of the Act, and substantiating that the College has fulfilled the
requirements of paragraph 2 of subsection A of § 23-38.97 of the Act; and
3. Finding by the Governor. In accordance with
subsection B of § 23-38.97 of the Act the Governor has found that the College
has fulfilled the requirements of subdivision A 2 of § 23-38.97, and therefore
has authorized Cabinet Secretaries to enter into this Management Agreement on
behalf of the Commonwealth with the College; and
WHEREAS, the College is therefore authorized to enter into
this Management Agreement as provided in subsection D of § 23-38.88 and
Subchapter 3 of the Act.
AGREEMENT
NOW, THEREFORE, in accordance with the provisions of the
Restructured Higher Education Administrative and Financial Operations Act,
Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of the Code of Virginia, and in
consideration of the foregoing premises, the Commonwealth and the College do
now agree as follows:
ARTICLE 1. DEFINITIONS.
As used in this Agreement, the following terms have the
following meanings, unless the context requires otherwise:
“Act” means the Restructured Higher Education
Administrative and Financial Operations Act, Chapter 4.10 (§ 23-38.88 et seq.)
of Title 23 of the Code of Virginia.
“Agreement” means “Management Agreement.”
“Board of Visitors” or “Board” means the Rector and Board
of Visitors of the College of William and Mary in Virginia and the Virginia
Institute of Marine Science.
“College” means the College of William and Mary in Virginia (State Agency 204) and the Virginia Institute of Marine Science (State Agency
268).
“Covered Employee” means any person who is employed by the
College on either a salaried or wage basis.
“Covered Institution” means, on and after the effective
date of its initial management agreement with the Commonwealth, a public
institution of higher education of the Commonwealth of Virginia that has
entered into a management agreement with the Commonwealth to be governed by and
in accordance with the provisions of subsection D of § 23-38.88 and Subchapter
3 of the Act.
“Enabling legislation” means those chapters, other than
Chapter 4.10, of Title 23 of the Code of Virginia, as amended, creating,
continuing, or otherwise setting forth the powers, purposes, and missions of
the individual public institutions of higher education of the Commonwealth.
“Management Agreement” means this agreement between the Commonwealth of Virginia and the College as required by subsection D of § 23-38.88 and
Subchapter 3 of the Act.
“Parties” means the parties to this Management Agreement,
the Commonwealth of Virginia and the College.
“Public institution of higher education” means those
two-year and four-year institutions enumerated in § 23-14 of the Code of Virginia.
ARTICLE 2. SCOPE OF MANAGEMENT AGREEMENT.
SECTION 2.1. Enhanced Authority Granted and
Accompanying Accountability. Subchapter 3 of the Act provides that, upon
the execution of, and as of the effective date for, this Management Agreement,
the College shall become a Covered Institution entitled to be granted by the
Commonwealth and to exercise the powers and authority provided in Subchapter 3
of the Act that are expressly contained in this Management Agreement. In
general, subject to its management agreement with the Commonwealth, status as a
Covered Institution governed by Subchapter 3 of the Act and this Management
Agreement is intended to replace (i) the post-General Assembly authorization
prior-approval system of reviews, approvals, policies and procedures carried
out and implemented by a variety of central State agencies with (ii) a
post-audit system of reviews and accountability under which a Covered
Institution is fully responsible and fully accountable for managing itself
pursuant to Subchapter 3 of the Act and its management agreement with the
Commonwealth.
SECTION 2.1.1. Assessments and Accountability.
The College and its implementation of the enhanced authority granted by
Subchapter 3 of the Act and this Management Agreement, and the Board of
Visitors polices attached hereto as Exhibits G through L, shall be subject to
the reviews, assessments, and audits (i) set forth in the Act that are to be
conducted by the Auditor of Public Accounts, the Joint Legislative Audit and
Review Commission, and the State Council of Higher Education for Virginia, or
(ii) as may be conducted periodically by the Secretaries of Finance,
Administration, Education, or Technology, or by some combination of these four
Secretaries, or (iii) as otherwise may be required by law other than the Act.
SECTION 2.1.2. Express Grant of Powers and
Authority. Subject to the specific conditions and limitations contained
in Article 4 (Institutional Management), Article 5 (Capital Projects;
Procurement; Property Generally), and Article 6 (Human Resources) of Subchapter
3 of the Act, the Commonwealth and the College agree that the Commonwealth has
granted to the College by this Management agreement all the powers and
authority contained in certain policies adopted by the Board of Visitors of the
College attached hereto as Exhibits G through L and governing (1) the
undertaking and implementation of capital projects, and other acquisition and
disposition of property (Exhibit G), (2) the leasing of property, including
capital leases (Exhibit H), (3) information technology (Exhibit I), (4) the
procurement of goods, services, including certain professional services,
insurance, and construction (Exhibit J), (5) human resources (Exhibit K), and
(6) its system of financial management (Exhibit L), including, as provided in
subsection B of § 23-38.104 of the Act, the sole authority to establish
tuition, fees, room, board, and other charges consistent with sum sufficient
appropriation authority for non-general funds as provided by the Governor and
the General Assembly in the Commonwealth’s biennial appropriations
authorization. Subject to the specific conditions and limitations
contained in Article 3 (Powers and Authority Generally) of Subchapter 3 of the
Act, in this Management Agreement, and in one or more of the Board of Visitors
policies attached hereto as Exhibits G through L, the Commonwealth and the
College agree that the Commonwealth has expressly granted to the College all
the powers and authority permitted by Article 3 (Powers and Authority
Generally) of Subchapter 3 of the Act.
The Board of Visitors of the College shall at all times by
fully and ultimately accountable for the proper fulfillment of the duties and
responsibilities set forth in, and for the appropriate implementation of, this
Management Agreement and the policies adopted by it and attached as Exhibits G
through L. Consistent with this full and ultimate accountability,
however, the Board may, pursuant to its legally permissible procedures,
specifically delegate the duties and responsibilities set forth in this
Management Agreement to its officers, committees, and subcommittees, and, as
set forth in the policies adopted by the Board and attached hereto as Exhibits
G through L, to a person or persons within the College.
SECTION 2.1.3. Reimbursement by the College of Certain
Costs. By July 1 of each odd-numbered year, the College shall inform the Secretary
of Finance of any intent during the next biennium to withdraw from any health
or other group insurance or risk management program made available to the
College through any agency, body corporate, political subdivision, authority,
or other entity of the Commonwealth, and in which the College is then
participating, to enable the Commonwealth's actuaries to complete an adverse
selection analysis of any such decision and to determine the additional costs
to the Commonwealth that would result from any such withdrawal. If upon notice
of such additional costs to the Commonwealth, the College proceeds to withdraw
from such health or other group insurance or risk management program, the
College shall, pursuant to subdivision D 2 c of § 23-38.88, reimburse the Commonwealth
for all such additional costs attributable to such withdrawal as determined by
the Commonwealth's actuaries.
SECTION 2.1.4. Potential Impact on Virginia College Savings Plan. As required by subdivision D 2 c of § 23-38.88 of the Act,
the College has given consideration to potential future impacts of tuition
increases on the Virginia College Savings Plan (§ 23-38.75 of the Code of
Virginia) and has discussed those potential impacts with the Executive Director
and staff of that Plan and with parties in the Administration who participated
in the development of this Management Agreement. The Executive Director
of the Plan has provided to the College and the Commonwealth the Plan’s
assumptions underlying the contract pricing of the program.
SECTION 2.1.5. Justification for Deviations from the
Virginia Public Procurement Act. Pursuant to § 23-38.110 of the Act
and subject to the provisions of this Management Agreement, the College may be
exempt from the provisions of the Virginia Public Procurement Act (VPPA),
Chapter 43 (§ 2.2-4300 et seq.) of Title 2.2 of the Code of Virginia. Any
procurement policies or rules that deviate from the VPPA must be uniform across
all institutions governed by Subchapter 3 of the Act, and the Board of Visitors
shall adopt and comply with procurement policies that are based upon
competitive principles and seek competition to the maximum practical
degree. The Policy Governing the Procurement of Goods, Services,
Insurance, and Construction, and the Disposition of Surplus Materials and the
Rules Governing Procurement of Goods, Services, Insurance, and Construction
(the Procurement Rules) attached to that Policy as Attachment 1 constitute the
policies and uniform deviations from the VPPA required by subsections A
and B of § 23-38.110 of the Act.
Subsection D of § 23-38.110 of the Act requires that the
College identify the public, educational, and operational interests served by
any procurement rule or rules that deviate from those in the VPPA. The
adopted Board of Visitors policy on procurement and the Procurement Rules
provide the College with the autonomy to administer its procurement process
while fully adhering to the principle that competition should be sought to the
maximum extent feasible. This autonomy will better position the College
to support the requirements of its growing teaching, research and outreach
missions. Greater autonomy in procurement will improve internal capacity
to respond quickly to emergent material and service issues and, therefore, enable
the College to be more efficient and effective in meeting the Commonwealth’s
goals for institutions of higher education. In some instances, costs will
be reduced. Taken collectively, the College’s procurement policies and
rules that differ from those required by the VPPA will enhance procurement
“best practices” as they currently are being observed within the higher
education community nationally. Further, these changes will provide
efficiencies to both the College and public sector suppliers.
SECTION 2.1.6. Quantification of Cost Savings.
Subsection C of § 23-38.104 of the Act requires that a Covered Institution
include in its management agreement with the Commonwealth the quantification of
cost savings realized as a result of the additional operational flexibility
provided pursuant to Subchapter 3 of the Act. Since this initial
Management Agreement with the Commonwealth has not yet been implemented by the
College, the parties agree that the College is not in a position to quantify
any such cost savings at this time, although the College expects that there
will be cost savings resulting from the additional authority granted to the
College pursuant to Subchapter 3 of the Act and that such cost savings will be
part of the determinations made during the reviews, assessments, and audits to
be conducted pursuant to Subchapter 3 of the Act by the Auditor of Public
Accounts, the Joint Legislative Audit and Review Commission, and the State
Council of Higher Education for Virginia, and as otherwise described in Section
2.1.1 above.
SECTION 2.1.7. Participation in State Programs.
The Commonwealth intends that the College shall continue to fully participate
in, and receive funding support from the many and varied programs established
now or in the future by the Commonwealth to provide support for Virginia’s
public institutions of higher education and for Virginians attending such
institutions, including but not limited to: the state capital outlay and
bond financing initiatives undertaken from time to time by the Commonwealth;
the Higher Education Equipment Trust Fund established pursuant to (§ 23-30.24
et seq.) of the Code of Virginia; the Maintenance Reserve Fund as provided in
the Appropriation Act; the Eminent Scholars program as provided in the
Appropriation Act; the Commonwealth’s various student financial assistance
programs; and other statewide programs or initiatives that exist, or may be
established, in support of the Commonwealth’s higher education institutions,
programs, or activities.
SECTION 2.1.8. Implied Authority. Pursuant to
subdivision D 1 of § 23-38.88 of the Act, the only implied authority granted to
the College by this Management Agreement is that implied authority that is
actually necessary to carry out the expressed grant of financial or operational
authority contained in this Agreement or in the policies adopted by the
College’s Board of Visitors and attached hereto as Exhibits G through L.
SECTION 2.1.9. Exercise of Authority. The
College and the Commonwealth acknowledge and agree that the execution of this
Management Agreement constitutes the conclusion of a process that, as of the
effective date of this Agreement, confers upon the College the enhanced
authority and operating flexibility described above, all of which is in
furtherance of the purposes of Subchapter 3 of the Act. Therefore,
without any further conditions or requirements, the College shall, on and after
the effective date of this Management Agreement, be authorized to exercise the
authority conferred upon it by this Management Agreement, the policies adopted
by its Board of Visitors attached hereto as Exhibits G through L, and by
Article 3 (Powers and Authority Generally) of Subchapter 3 of the Act except to
the extent that the powers and authority contained in Article 3 of Subchapter 3
of the Act have been limited by this Management Agreement or the Board of
Visitors policies attached hereto as Exhibits G through L.
The College and the Commonwealth also acknowledge and agree
that, pursuant to subsection A of § 23-38.91 of the Act and consistent with the
terms of this Management Agreement, the Board of Visitors of the College shall
assume full responsibility for management of the College, subject to the
requirements and conditions set forth in Subchapter 3 of the Act, the general
requirements for this Management Agreement as provided in § 23-38.88 of the
Act, and this Management Agreement. The Board of Visitors shall be fully
accountable for (a) the management of the College as provided in the Act, (b)
meeting the requirements of §§ 2.2-5004, 23-9.2:3.02, and 23-9.6:1.01 of the
Code of Virginia, and (c) meeting such other provisions as are set forth in
this Management Agreement.
SECTION 2.2. State Goals.
SECTION 2.2.1. Furthering State Goals. As
required for all public institutions of higher education of the Commonwealth by
subsection B of § 23-38.88 of the Act, prior to August 1, 2005, the Board of
Visitors of the College adopted the resolution setting forth its commitment to
the Governor and the General Assembly to meet the State goals specified in that
subsection B. In addition to the above commitments, the College
commits to furthering these State goals by:
1. In addition to its six-year target of achieving
$68 million in external research by 2011-12, the College, including the
Virginia Institute of Marine Science, commits to match from institutional
funds, other than general funds or tuition, on a dollar for dollar
basis, any additional research funds provided by the State in the Appropriation
Act above the amount provided from institutional funds for research in 2005-06.
2. In a concerted effort to provide educational
opportunities to Virginia students attending institutions in the Virginia
Community College System (VCCS) and Richard Bland College, the College commits
to work with Virginia Polytechnic Institute and State University (Virginia
Tech) and the University of Virginia to establish a program under which these
three institutions will increase significantly the number of such students
transferring to their institutions. Specifically, pursuant to this
program, the College, Virginia Tech and the University of Virginia collectively
commit to enroll as transfer students from VCCS institutions and Richard Bland
College (i) by the 2007-08 fiscal year, not less than approximately 300 new
such transfer students each year over the number enrolled in 2004-05, for a
total of approximately 900 such transfer students each year, and (ii) by the
end of the decade, not less than approximately 650 new such transfer students
each year over the number enrolled in 2004-05, for a total of approximately
1,250 such transfer students each year. The three institutions have
agreed that they will mutually determine how to divide the responsibility for
these additional transfer students equitably among themselves.
3. As an institutional priority and obligation, the
College commits to the Governor and General Assembly to work meaningfully and
visibly with an economically distressed region or local area of the
Commonwealth, not smaller in size than a city or county, which lags the
Commonwealth in education, income, employment, and other factors. The
College commits to establish a formal partnership with that area to develop
jointly a specific action plan that builds on the College’s programmatic
strengths and uses the College’s faculty, staff and, where appropriate, student
expertise to stimulate economic development in the area to make the area more
economically viable, and to improve student achievement and teacher and
administrator skill sets in a school, schools, or the school system in that
area. The College shall submit the action plan to the Governor and
General Assembly by no later than December 31, 2006, and shall report to the
Governor and General Assembly by September 1 of each year on its progress in
implementing the action plan during the prior fiscal year.
SECTION 2.2.2. Student Enrollment, Tuition, and
Financial Aid. As required by § 23-9.2:3.02 of the Code of Virginia, the
College, along with all other public institutions of higher education of the
Commonwealth, has developed and submitted to the State Council of Higher
Education for Virginia (SCHEV) by October 1, 2005, an institution-specific
Six-Year Plan addressing the College’s academic, financial, and enrollment
plans for the six-year period of fiscal years 2006-07 through 2011-12.
Subsection A of § 23-9.2:3.02 requires the College to update this Six-Year Plan
by October 1 of each odd-numbered year. Subsection B of § 23-38.97 of the
Act requires that a management agreement address, among other issues, such
matters as the College’s in-state undergraduate student enrollment, its
financial aid requirements and capabilities, and its tuition policy for
in-state undergraduate students. These matters are addressed below and in
the College’s Six-Year Plan submitted to SCHEV, and the parties therefore agree
that the College’s Six-Year Plan and the description below meet the requirement
of subsection B of § 23-38.97 of the Act.
Subsection B of § 23-38.104 of the Act requires the Board of
Visitors of the College to include in this Management Agreement the College’s
commitment to provide need-based grant aid for middle- and lower-income
Virginia students in a manner that encourages student enrollment and
progression without respect to potential increases in tuition and fees.
The College’s commitment in this regard is clear.
The College of William and Mary, under the leadership of
its new president, has set as a goal increasing the economic and social
diversity of the student body at the College. The College is absolutely
committed to assuring access to any qualified and admitted Virginian regardless
of family income. The primary initiative in this area is Gateway William
and Mary, which shall be substantially as described in the remainder of this
Section 2.2.2, as may amended from time to time by the Board of Visitors of the
College and reported to the Secretaries of Finance and Education and the
Chairmen of the Senate Committee on Finance and the House Committee on
Appropriations.
At the present time, any needy Virginian at the College
receives a combination of grants and loans so that his or her indebtedness will
not exceed one year’s cost of education. This is as generous as any other
public institution in the state or region. Nonetheless, this means that
many needy Virginians, including those with low family incomes, will graduate
with more than $16,000 in indebtedness. This burdensome level of debt may
discourage students from lower SES groups from applying to or accepting admission
from the College. And, if they do attend, their legitimate concern with
respect to debt repayment may discourage them from some career choices like
K-12 education or from going on to graduate or professional school for fear of
adding even more to their personal indebtedness. Hence, over the period
of the six-year plan, the College of William and Mary is committed to seeking,
from all sources – state-appropriated scholarship funds, federal, and private
support -- sufficient funds to assure that 1) we meet 100% of financial need
for in-state undergraduates and 2) any student whose family’s annual income is
less than $40,000 can spend four years at the College and graduate
debt-free. The Gateway William and Mary initiative is one of the highest
priorities for our new president. In addition, both through our goal to
increase the numbers of VCCS graduates who transfer to the College and
aggressive efforts to recruit in-state students from lower SES groups, we hope
to double the number of students who would receive assistance through the
Gateway initiative from 280 students to 560 students by the end of the six-year
planning period.
As noted, we will continue our commitment to providing
additional financial aid through grants and loans to those Virginians whose
families are not in the lower SES groups, but who still have demonstrable
need. Currently approximately 900 in-state undergraduate students receive
need-based aid. The College commits to meeting 100% of the need for these
students consistent with the federal definition of unmet needs over the six
year planning period. In addition, as tuition and fees increase over the
period of the six-year plan, we will readjust the level of financial aid for
all students to assure that insufficiency of family resources will not be a
barrier to attending the College.
The Commonwealth and the College agree that this commitment
meets the requirements of subsection B of § 23-38.104 of the Act.
SECTION 2.3. Authority Granted to the Virginia
Institute of Marine Science. The Virginia Institute of Marine Science
(hereafter, the Institute) shall receive the benefits of the additional
financial and operational authority granted by this Management Agreement as it
and the policies adopted by the Board of Visitors attached as Exhibits G
through L are implemented by the College on behalf of the Institute, but the
Institute shall not receive any additional independent financial or operational
authority as a result of this Management Agreement or the attached Board of
Visitors policies beyond the independent financial and operational authority
that it had prior to the effective date of this Management Agreement or that it
may be granted by law in the future.
SECTION 2.4. Other Law. As provided in
subsection B of § 23-38.91 of the Act, the College shall be governed and
administered in the manner provided not only in this Management Agreement, but
also as provided in the Appropriation Act then in effect and the College’s
Enabling Legislation.
SECTION 2.4.1. The Appropriation Act. The
Commonwealth and the College agree that, pursuant to the current terms of the
Act and the terms of § 4-11.00 of the 2004-06 Appropriation Act, if there is a
conflict between the provisions of the Appropriation Act and the provisions of
Subchapter 3 of the Act, or this Management Agreement, or the Board of Visitors
policies attached to this Management Agreement as Exhibits G through L, the
provisions of the Appropriation Act shall control, and shall continue to
control unless provided otherwise by law.
SECTION 2.4.2. The College’s Enabling
Legislation. As provided in subsection C of § 23-38.91 of the Act, in the
event of a conflict between any provision of Subchapter 3 of this Act and the
College’s Enabling Legislation, the Enabling Legislation shall control.
SECTION 2.4.3. Title 2.2 of the Code of Virginia. As provided in subsection B of § 23-38.92 of the Act, except as
specifically made inapplicable under Subchapter 3 of the Act and the express
terms of this Management Agreement, the provisions of Title 2.2 relating
generally to the operation, management, supervision, regulation, and control of
public institutions of higher education shall be applicable to the College as
provided by the express terms of this Management Agreement. As further provided
in subsection C of § 23-38.92 of the Act, in the event of conflict between any
provision of Title 2.2 and any provision of Subchapter 3 of the Act as
expressed in this Management Agreement, the provisions of this Management
Agreement shall control.
SECTION 2.4.4. Educational Policies of the
Commonwealth. As provided in subsection A of § 23-38.93 of the Act, for
purposes of §§ 2.2-5004, 23-1.01, 23-1.1, 23-2, 23-2.1, 23-2.2:1, 23-3, 23-4.2,
23-4.3, 23-4.4, 23-7.1:02, 23-7.4, 23-7.4:1, 23-7.4:2, 23-7.4:3, 23-7.5,
23-8.2:1, 23-9.1, 23-9.2, 23-9.2:3, 23-9.2:3.02, 23-9.2:3.1 through 23-9.2:5,
23-9.6:1.01, and Chapter 4.9 (§ 23-38.75 et seq.) of the Code of Virginia, the
College shall remain a public institution of higher education of the
Commonwealth following the effective date of this Management Agreement, and
shall retain the authority granted and any obligations required by such
provisions, unless and until provided otherwise by law other than the
Act. In addition, the College shall retain the authority, and any
obligations related to the exercise of such authority, that is granted to
institutions of higher education pursuant to Chapter 1.1 (§ 23-9.3 et seq.),
Chapter 3 (§ 23-14 et seq.), Chapter 3.2 (§ 23-30.23 et seq.), Chapter 3.3 (§
23-30.39 et seq.), Chapter 4 (§ 23-31 et seq.), Chapter 4.01 (§ 23-38.10:2 et
seq.), Chapter 4.1 (§ 23-38.11 et seq.), Chapter 4.4 (§ 23-38.45 et seq.),
Chapter 4.4:1 (§ 23-38.53:1 et seq.), Chapter 4.4:2 (§ 23-38.53:4 et seq.),
Chapter 4.4:3 (§ 23-38.53:11), Chapter 4.4:4 (§ 23-38.53:12 et seq.), Chapter
4.5 (§ 23-38.54 et seq.), Chapter 4.7 (§ 23-38.70 et seq.), Chapter 4.8 (§
23-38.72 et seq.), and Chapter 4.9 (§ 23-38.75 et seq.), unless and until
provided otherwise by law other than the Act.
SECTION 2.4.5. Public Access to Information. As
provided in § 23-38.95 of the Act, the College shall continue to be subject to
§ 2.2-4342 and to the provisions of the Virginia Freedom of Information Act,
Chapter 37 (§ 2.2-3700 et seq.) of Title 2.2 of the Code of Virginia, but shall
be entitled to conduct business pursuant to § 2.2-3709 if expressly named
therein and, in all cases, may conduct business as a “state public body” for
purposes of subsection B of § 2.2-3708.
SECTION 2.4.6. Conflicts of Interests. As
provided in § 23-38.96 of the Act, the provisions of the State and Local
Government Conflict of Interests Act, Chapter 32 (§ 2.2-3100 et seq.) that are
applicable to officers and employees of a state governmental agency shall
continue to apply to the members of the Board of Visitors of the College and to
its Covered Employees.
SECTION 2.4.7. Other Provisions of the Code of Virginia. Other than as specified above, any other powers and authorities granted to
the College pursuant to any other sections of the Code of Virginia, including
other provisions of the Act, are not affected by this Management Agreement or
the Board policies attached hereto as Exhibits G through L.
ARTICLE 3. AMENDMENTS TO, AND RIGHT AND POWER TO VOID
OR REVOKE, MANAGEMENT AGREEMENT.
SECTION 3.1. Amendments. Any change to or
deviation from this Management Agreement or the Board of Visitors policies
attached hereto as Exhibits G through L shall be reported to the Secretaries of
Finance, Administration, Education, and Technology and to the Chairmen of the
Senate Committee on Finance and the House Committee on Appropriations and shall
be posted on the College's website. The change or deviation shall become
effective unless one of the above persons notifies the College in writing
within 60 days that the change or deviation is substantial and material. Any
substantial and material change or deviation shall require the execution by the
parties of an amendment to this Management Agreement or a new Management
Agreement pursuant to the provisions of subsection D of § 23-38.88 and may lead
to the Governor declaring this Management Agreement to be void pursuant to
subdivision D 4 of § 23-38.88 of the Act.
SECTION 3.2. Right and Power to Void, Revoke, or
Reinstate Management Agreement.
SECTION 3.2.1. Governor. Pursuant to
subdivision D 4 of § 23-38.88, and § 23-38.98, of the Act, if the Governor
makes a written determination that the College is not in substantial compliance
with the terms of this Management Agreement or with the requirements of the Act
in general, (i) the Governor shall provide a copy of that written determination
to the Rector of the Board of Visitors of the College and to the members of the
General Assembly, and (ii) the College shall develop and implement a plan of
corrective action, satisfactory to the Governor, for purposes of coming into
substantial compliance with the terms of this Management Agreement and with the
requirements of the Act, as soon as practicable, and shall provide a copy of
such corrective action plan to the members of the General Assembly. If
after a reasonable period of time after the corrective action plan has been
implemented by the College, the Governor determines that the institution is not
yet in substantial compliance with this Management Agreement or the requirements
of the Act, the Governor may void this Management Agreement. Upon the
Governor voiding this Management Agreement, the College shall no longer be
allowed to exercise any restructured financial or operational authority
pursuant to the provisions of Subchapter 3 of the Act unless and until the
College has entered into a subsequent management agreement with the Secretary
or Secretaries designated by the Governor or the voided Management Agreement is
reinstated by the General Assembly.
SECTION 3.2.2. General Assembly. As provided in
subdivision D 4 of § 23-38.88 of the Act, the General Assembly may reinstate a
Management Agreement declared void by the Governor. Pursuant to §
23-38.98 of the Act, the College's status as a Covered Institution governed by
Subchapter 3 of the Act may be revoked by an act of the General Assembly (i) if
the College fails to meet the requirements of Subchapter 3 of the Act, or (ii)
if the College fails to meet the requirements of this Management Agreement.
ARTICLE 4. GENERAL PROVISIONS.
SECTION 4.1. No Third-Party Beneficiary Status.
Nothing in this Agreement, express or implied, shall be construed as conferring
any third-party beneficiary status on any person or entity.
SECTION 4.2. Sovereign Immunity. Pursuant to
subsection E of § 23-38.88 of the Act, the College and the members of its Board
of Visitors, officers, directors, employees, and agents shall be entitled to
the same sovereign immunity to which they would be entitled if the College were
not governed by the Act; provided that the Virginia Tort Claims Act, §
8.01-195.1 et seq. of the Code of Virginia, and its limitations on recoveries
shall remain applicable with respect to the College.
SECTION 4.3. Term of Agreement. This Management
Agreement shall expire at midnight on June 30, 2010.
WHEREFORE, the foregoing Management Agreement has been
executed as of this 15th day of November, 2005, and shall become effective on
the effective date of the legislation enacted into law providing for the terms
of such Agreement.
EXHIBIT G
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE COLLEGE OF WILLIAM AND MARY IN VIRGINIA
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING CAPITAL PROJECTS
THE RECTOR AND VISITORS OF
THE COLLEGE OF WILLIAM AND MARY IN VIRGINIA
POLICY GOVERNING CAPITAL PROJECTS
I. PREAMBLE.
The Restructured Higher Education Financial and
Administrative Operations Act (the Act), Chapter 4.10 of Title 23 of the Code
of Virginia, provides that, upon becoming a Covered Institution, the College of
William and Mary in Virginia may be delegated the authority to establish its
own system for undertaking the implementation of its capital projects. In
general, status as a Covered Institution is designed to replace the
post-authorization system of reviews, approvals, policies and procedures
carried out by a variety of central State agencies, and also the traditional
pre-authorization approval process for projects funded entirely with
non-general funds and without any proceeds from State Tax Supported Debt.
The College's system for carrying out its capital outlay process as a Covered
Institution is to be governed by policies adopted by the Board of
Visitors. The following provisions of this Policy, together with the
Policy Governing the Procurement of Goods, Services, Insurance, and
Construction, and the Disposition of Surplus Materials adopted by the Board,
and the Rules Governing Procurement of Goods, Services, Insurance, and
Construction, which is attached as Attachment 1 to that Policy, constitute the
adopted Board of Visitors policies regarding the College’s capital projects,
whether funded by a state general fund appropriation, State Tax Supported Debt,
or funding from other sources.
This Policy is intended to encompass and implement the
authority that may be granted to the College pursuant to Subchapter 3 of the
Act. Any other powers and authorities granted to the College pursuant to
the Appropriation Act, or any other sections of the Code of Virginia, including
other provisions of the Act and the College's Enabling Legislation, are not
affected by this Policy.
II. DEFINITIONS.
As used in this policy, the following terms shall have the
following meanings, unless the context requires otherwise:
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 of Title 23 of the Code of Virginia.
“Board of Visitors” or “Board” means the Rector and
Visitors of the College of William and Mary in Virginia.
“Capital Lease” means a lease that is defined as such
within Generally Accepted Accounting Principles pursuant to the pronouncement
of the Financial Accounting Standards Board.
“Capital Professional Services” means professional
engineering, architecture, land surveying and landscape architecture services
related to capital projects.
“Capital project(s)” means the acquisition of any interest
in land, including improvements on the acquired land at the time of
acquisition, new construction, improvements or renovations, and Capital Leases.
“College” means the College of William and Mary in Virginia, (State Agency 204), and the Virginia Institute of Marine Science, (State Agency
268).
“Covered Institution” means, on and after the Effective
Date of its initial Management Agreement, a public institution of higher
education of the Commonwealth of Virginia that has entered into a management
agreement with the Commonwealth to be governed by the provisions of Subchapter
3 of the Act.
“Enabling Legislation” means those chapters, other than
Chapter 4.10, of Title 23 of the Code of Virginia, as amended, creating,
continuing, or otherwise setting forth the powers, purposes, and missions of
the individual public institutions of higher education of the Commonwealth, and
as provided in §§ 2.2-2817.2, 2.2-2905, and 51.1-126.3.
“Major Capital Project(s)” means the acquisition of any
interest in land, including improvements on the acquired land at the time of
acquisition, new construction of 5,000 square feet or greater or costing $1 million
or more, improvements or renovations of $1 million or more, and Capital Leases.
“State Tax Supported Debt” means bonds, notes or other
obligations issued under Article X, Section 9(a), 9(b), or 9(c), or 9(d),
if the debit service payments are made or ultimately are to be made from
general government funds, as defined in the December 20, 2004 Report to the
Governor and General Assembly of the Debt Capacity Advisory Committee or as
that definition is amended from time to time.
III. SCOPE OF POLICY.
This Policy applies to the planning and budget development
for capital projects, capital project authorization, and the implementation of
capital projects, whether funded by a general fund appropriation of the General
Assembly, proceeds from State Tax Supported Debt, or funding from other
sources.
This Policy provides guidance for 1) the process for
developing one or more capital project programs for the College, 2)
authorization of new capital projects, 3) procurement of Capital Professional
Services and construction services, 4) design reviews and code approvals for
capital projects, 5) environmental impact requirements, 6) building
demolitions, 7) building and land acquisitions, 8) building and land
dispositions, 9) project management systems, and 10) reporting requirements.
IV. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the College shall at all times be
fully and ultimately accountable for the proper fulfillment of the duties and
responsibilities set forth in, and for the appropriate implementation of, this
Policy. Consistent with this full and ultimate accountability, however,
the Board may, pursuant to its legally permissible procedures, specifically
delegate either herein or by separate Board resolution the duties and
responsibilities set forth in this Policy to a person or persons within the
College, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the College’s usual delegation policies and
procedures.
V. CAPITAL PROGRAM.
The President shall adopt a system for developing one or
more capital project programs that defines or define the capital needs of the
College for a given period of time consistent with the College’s published
Master Plan. This process may or may not mirror the Commonwealth’s
requirements for capital plans. The Board of Visitors shall approve the
program for Major Capital Projects. Major Capital Projects that are to be
funded entirely or in part by a general fund appropriation of the General
Assembly or proceeds from State Tax Supported Debt shall follow the
Commonwealth’s requirements for capital plans. The Board may approve
amendments to the program for Major Capital Projects annually or more often if
circumstances warrant.
It shall be College policy that each capital project
program shall meet the College’s mission and institutional objectives, and be
appropriately authorized by the College. Moreover, it shall be College
policy that each capital project shall be of a size and scope to provide for
the defined program needs, designed in accordance with all applicable building
codes and handicapped accessibility standards as well as the College’s design
guidelines and standards, and costed to reflect current costs and escalated to
the mid-point of anticipated construction.
VI. AUTHORIZATION OF CAPITAL PROJECTS
The Board of Visitors shall authorize the initiation of
each Major Capital Project by approving its size, scope, budget, and
funding. The President, acting through his designee, shall adopt
procedures for approving the size, scope, budget and funding of all other
capital projects. Major Capital Projects that are to be funded entirely
or in part by a general fund appropriation of the General Assembly or proceeds
from State Tax Supported Debt, shall require both Board of Visitors approval
and those pre-appropriation approvals of the State’s governmental agencies then
applicable, and shall follow the State’s process for capital budget requests.
It shall be the policy of the College that the
implementation of capital projects shall be carried out so that the capital
project as completed is the capital project approved by the Board for Major
Capital Projects and according to the procedures adopted by the President,
acting through his designee, for all other capital projects. The
President shall ensure strict adherence to this requirement.
Accordingly, the budget, size and scope of a capital
project shall not be materially changed beyond the plans and justifications
that were the basis for the capital project's approval, either before or during
construction, unless approved in advance as described above. Minor
changes shall be permissible if they are determined by the President, acting
through his designee, to be justified.
Major Capital Projects may be submitted for Board of
Visitors authorization at any time but must include a statement of urgency if
not part of the approved Major Capital Project program.
VII. PROCUREMENT OF CAPITAL PROFESSIONAL SERVICES AND
CONSTRUCTION SERVICES.
It shall be the policy of the College that procurements
shall result in the purchase of high quality services and construction at
reasonable prices and shall be consistent with the Policy Governing the
Procurement of Goods, Services, Insurance, and Construction, and the
Disposition of Surplus Materials adopted by the Board, and with the Rules
Governing Procurement of Goods, Services, Insurance, and Construction, which is
attached as Attachment 1 to that Policy. Specifically, the College is
committed to:
Seeking competition to the maximum practical degree, taking
into account the size of the anticipated procurement, the term of the resulting
contract and the likely extent of competition;
Conducting all procurements in a fair and impartial manner
and avoiding any impropriety or the appearance of any impropriety prohibited by
State law or College policy;
Making procurement rules clear in advance of any
competition;
Providing access to the College’s business to all qualified
vendors, firms and contractors, with no potential bidder or offeror excluded
arbitrarily or capriciously, while allowing the flexibility to engage in
cooperative procurements and to meet special needs of the College;
Including in contracts of more than $10,000 the
contractor’s agreement not to discriminate against employees or applicants
because of race, religion, color, sex, national origin, age, disability or
other basis prohibited by State law except where there is a bona fide occupational
qualification reasonably necessary to the contractor’s normal operations;
Providing for a non-discriminatory procurement process, and
including appropriate and lawful provisions to effectuate fair and reasonable
consideration of women-owned, minority-owned and small businesses and to
promote and encourage a diversity of suppliers.
The President, acting through his designee, is authorized
to develop implementing procedures for the procurement of Capital Professional
Services and construction services at the College. The procedures shall
implement this Policy and provide for:
A system of competitive negotiation for Capital
Professional Services, including a procedure for expedited procurement of
Capital Professional Services under $50,000, pursuant to (i) subdivisions 1, 2,
and 3 a of the defined term "competitive negotiation" in Rule 4 of
the Rules Governing Procurement of Goods, Services, Insurance, and
Construction, and (ii) § 4-5.06 of the 2004-2006 Appropriation Act;
A prequalification procedure for contractors or products;
A procedure for special construction contracting methods,
including but not limited to design-build and construction management
contracts; and
A prompt payment procedure.
The College also may enter into cooperative arrangements
with other private or public health or educational institutions, healthcare
provider alliances, purchasing organizations or state agencies where, in the
judgment of the College, the purposes of this Policy will be furthered.
VIII. DESIGN REVIEWS AND CODE APPROVALS.
The Board of Visitors shall review the design of all Major
Capital Projects and shall provide final Major Capital Project authorization
based on the size, scope and cost estimate provided with the design.
Unless stipulated by the Board of Visitors at the design review, no further
design reviews shall be required. For all capital projects other than
Major Capital Projects, the President, acting through his designee, shall adopt
procedures for design review and project authorization based on the size, scope
and cost estimate provided with the design. It shall be the College’s
policy that all capital projects shall be designed and constructed in
accordance with applicable Virginia Uniform Statewide Building Code (VUSBC)
standards and the applicable accessibility code.
The President shall designate a Building Official
responsible for building code compliance by either (i) hiring an individual to
be the College Building Official, or (ii) continuing to use the services of the
Department of General Services, Division of Engineering and Buildings, to
perform the Building Official function. If option (i) is selected, the
individual hired as the College Building Official shall be a full-time
employee, a registered professional architect or engineer, and certified by the
Department of Housing and Community Development to perform this Building
Official function. The College Building Official shall issue building
permits for each capital project required by the VUSBC to have a building
permit, and shall determine the suitability for occupancy of, and shall issue
certifications for building occupancy for, all capital projects requiring such
certification. Prior to issuing any such certification, this individual
shall ensure that the VUSBC and accessibility requirements are met for that
capital project and that such capital project has been inspected by the State
Fire Marshal or his designee. When serving as the College Building Official, such individual shall organizationally report directly and exclusively to
the Board of Visitors. If the College hires its own College Building
Official, it shall fulfill the code review requirement by maintaining a review
unit supported by resources and staff who are certified by the Department of
Housing and Community Development in accordance with § 36-137 of the Code of
Virginia for such purpose and who shall review plans, specifications and
documents for compliance with building codes and standards and perform required
inspections of work in progress and the completed capital project. No
individual licensed professional architect or engineer hired or contracted with
to perform these functions shall also perform other building code-related
design, construction, facilities-related project management or facilities management
functions for the College on the same capital project.
IX. ENVIRONMENTAL IMPACT REPORTS.
It shall be the policy of the College to assess the
environmental, historic preservation, and conservation impacts of all capital
projects and to minimize and otherwise mitigate all adverse impacts to the
extent practicable. The College shall develop a procedure for the
preparation and approval of environmental impact reports for capital projects,
in accordance with State environmental, historic preservation, and conservation
requirements generally applicable to capital projects otherwise meeting the
definition of Major Capital Projects but, pursuant to § 23-38.109 C 1 of the
Act, with a cost of $300,000 or more.
X. BUILDING DEMOLITIONS.
It shall be the policy of the College to consider the
environmental and historical aspects of any proposed demolitions. The
Board of Visitors shall be responsible for approving demolition requests.
The College shall develop a procedure for the preparation and review of demolition
requests, including any necessary reviews by the Department of Historic
Resources and the Art and Architectural Review Board in accordance with State
historic preservation requirements generally applicable to capital projects in
the Commonwealth. Further, for any property that was acquired or
constructed with funding from a general fund appropriation of the General
Assembly or from proceeds from State Tax Supported Debt, general laws
applicable to State owned property shall apply.
XI. BUILDING OR LAND ACQUISITIONS.
It is the policy of the College that capital projects
involving building or land acquisition shall be subjected to thorough inquiry
and due diligence prior to closing on the acquisition of such real
property. The President, acting through his designee, shall ensure that
the project management system implemented pursuant to Section XIII below
provides for a review and analysis of all pertinent matters relating to the
acquisition of buildings and land as any prudent purchaser would perform to the
end that any building or land acquired by the College shall be suitable for its
intended purpose, that the acquisition can be made without substantial risk of
liability to the College and that the cost of the real property to be acquired,
together with any contemplated development thereof, shall be such that
compliance with the provisions of Section VI of this Policy is achieved.
In addition, the President, acting through his designee, shall ensure that,
where feasible and appropriate to do so, the following specific policies
pertaining to the acquisition of buildings or land for capital projects are
carried out.
A. Environmental and Land Use Considerations.
It is the policy of the College to reasonably cooperate
with each locality affected by the acquisition. Such cooperation shall
include but not be limited to furnishing any information that the locality may
reasonably request and reviewing any requests by the locality with regard to
any such acquisition. The College shall consider the zoning and comprehensive
plan designation by the locality of the building or land and surrounding
parcels, as well as any designation by State or federal agencies of
historically or archeologically significant areas on the land. Nothing
herein shall be construed as requiring the College to comply with local zoning
laws and ordinances.
B. Infrastructure and Site Condition.
The President, acting through his designee, shall ensure
that, in the case of capital projects involving the acquisition of buildings or
land, the project management systems implemented under Section XIII below
provide for a review of the following matters prior to acquisition of the
building or land: that any land can be developed for its intended purpose
without extraordinary cost; that an environmental engineer has been engaged by
the College to provide an assessment of any environmental conditions on the
land; that there is adequate vehicular ingress and egress to serve the
contemplated use of the building or land; that utilities and other services to
the land are adequate or can reasonably be provided or have been provided in
the case of building acquisitions; and that the condition and grade of the
soils have been examined to determine if any conditions exist that would
require extraordinary site work or foundation systems.
C. Title and Survey.
A survey shall be prepared for any real property acquired,
and an examination of title to the real property shall be conducted by a
licensed attorney or, in the alternative, a commitment for title insurance shall
be procured from a title insurance company authorized to do business in the
Commonwealth. Based upon the survey and title examination or report, the
President, acting through his designee, shall conclude, prior to acquisition of
the real property, that title thereto will be conveyed to the College in fee
simple, free and clear of all liens, encumbrances, covenants, restrictions,
easements or other matters that may have a significant adverse effect upon the
College's ability to own, occupy, convey or develop the real property.
D. Appraisal.
An appraisal shall be conducted of the real property to be
acquired to determine its fair market value and the consistency of the fair
market value with the price agreed upon by the College.
XII. BUILDING OR LAND DISPOSITIONS.
The Board of Visitors shall approve the disposition of any
building or land. Disposition of land or buildings, the acquisition or
construction of which was funded entirely or in part by a general fund
appropriation of the General Assembly or proceeds from State Tax Supported
Debt, shall require both Board of Visitors approval and other approvals in
accordance with general law applicable to State-owned property and with the
College’s Enabling Legislation.
XIII. PROJECT MANAGEMENT SYSTEMS.
The President, acting through his designee, shall implement
one or more systems for the management of capital projects for the
College. The systems may include the delegation of project management
authority to appropriate College officials, including a grant of authority to
such officials to engage in further delegation of authority as the President
deems appropriate.
The project management systems for capital projects shall
be designed to ensure that such projects comply with the provisions of this
Policy and other Board of Visitors policies applicable to closely related
subjects such as selection of architects or policies applicable to College
buildings and grounds.
The project management systems may include one or more
reporting systems applicable to capital projects whereby College officials
responsible for the management of such projects provide appropriate and timely
reports to the President on the status of such projects during construction.
XIV. REPORTING REQUIREMENTS.
In addition to complying with any internal reporting
systems contained in the College’s project management systems, as described in
Section XIII above, the College shall comply with State reporting requirements
for those Major Capital Projects funded entirely or in part by a general fund
appropriation by the General Assembly or State Tax Supported Debt.
Additionally, if any capital project constructs improvements on land, or
renovates property, that originally was acquired or constructed in whole or in
part with a general fund appropriation for that purpose or proceeds from State
Tax Supported Debt, and such improvements or renovations are undertaken
entirely with funds not appropriated by the General Assembly and, if the cost
of such improvements or renovations is reasonably expected to exceed $2 million
dollars, the decision to undertake such improvements or renovations shall be
communicated as required by § 23-38.109 C 3 of the Act. As a matter of
routine, the President, acting through his designee, shall report to the
Department of General Services on the status of such capital projects at the
initiation of the project, prior to the commencement of construction, and at
the time of acceptance of any such capital project.
EXHIBIT H
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE COLLEGE OF WILLIAM AND MARY IN VIRGINIA
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING
LEASES OF REAL PROPERTY
THE RECTOR AND VISITORS OF
THE COLLEGE OF WILLIAM AND MARY IN VIRGINIA
POLICY GOVERNING LEASES OF REAL PROPERTY
I. PREAMBLE.
In 1996 the Board of Visitors adopted a Policy Statement
Governing Exercise of Autonomy in Leases of Property for certain leases entered
into by the College of William and Mary in Virginia, which was amended in 2003
as the Policy Statement Governing Exercise of Autonomy in Operating and Capital
Leases of Property. The Restructured Higher Education Financial and
Administrative Operations Act (the Act), Chapter 4.10 (§ 23-38.88 et seq.) of Title
23 of the Code of Virginia, provides that, upon becoming a Covered Institution,
the College may have the authority to establish its own system for the leasing
of real property. The College’s system for implementing this authority is
to be governed by policies adopted by the Board of Visitors. The
following provisions of this Policy constitute the adopted Board of Visitors
policies regarding Leases of real property entered into by the College.
This Policy is intended to cover the authority that may be
granted to the College pursuant to Subchapter 3 of the Act. Any other
powers and authorities granted to the College pursuant to the Appropriation
Act, or any other sections of the Code of Virginia, including other provisions
of the Act and the College's Enabling Legislation, as defined in § 23-38.89 of
the Act, are not affected by this Policy.
II. DEFINITIONS.
The following words and terms, when used in this Policy,
shall have the following meaning unless the context clearly indicates
otherwise:
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of
the Code of Virginia.
“Board of Visitors” means the Rector and Visitors of the College of William and Mary in Virginia.
“Capital Lease” means a lease that is defined as such
within Generally Accepted Accounting Principles pursuant to the pronouncement
of the Financial Accounting Standards Board.
“College” means the College of William and Mary in Virginia, (State Agency 204), and the Virginia Institute of Marine Science, (State Agency
268).
“Covered Institution” means a public institution of higher
education of the Commonwealth of Virginia that has entered into a Management
Agreement with the Commonwealth to be governed by Subchapter 3 of the Act.
“Expense Lease” means an Operating Lease of real property
under the control of another entity to the College.
“Income Lease” means an Operating Lease of real property
under the control of the College to another entity.
“Lease” or “Leases” means any type of lease involving real
property.
“Operating Lease” means any lease involving real property,
or improvements thereon, that is not a Capital Lease.
III. SCOPE OF POLICY.
This Policy provides guidance for the implementation of all
College Leases.
IV. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the College shall at all times be
fully and ultimately accountable for the proper fulfillment of the duties and
responsibilities set forth in, and for the appropriate implementation of, this
Policy. Consistent with this full and ultimate accountability, however,
the Board may, pursuant to its legally permissible procedures, specifically
delegate either herein or by separate Board resolution the duties and responsibilities
set forth in this Policy to a person or persons within the College, who, while
continuing to be fully accountable for such duties and responsibilities, may
further delegate the implementation of those duties and responsibilities
pursuant to the College’s usual delegation policies and procedures.
V. REQUIREMENTS FOR LEASES.
A. Factors to Be Considered When Entering into Leases.
All Leases shall be for a purpose consistent with the
mission of the College. The decision to enter into a Lease shall be further
based upon cost, demonstrated need, compliance with this Policy, consideration
of all costs of occupancy, and a determination that the use of the property to
be leased is necessary and is efficiently planned. Leases shall also
conform to the space planning procedures that may be adopted by the President,
acting through his designee, to ensure that the plan for the space to be leased
is consistent with the purpose for which the space is intended.
B. Competition to Be Sought to Maximum Practicable Degree.
Competition shall be sought to the maximum practicable
degree for all Leases. The President, acting through his designee, is
authorized to ensure that Leases are procured through competition to the
maximum degree practicable and to determine when, under guidelines that may be
developed and adopted by the President, acting through his designee, it is
impractical to procure Leases through competition.
C. Approval of Form of Lease Required.
The form of Leases entered into by the College shall be
approved by the College’s legal counsel.
D. Execution of Leases.
All Leases entered into by the College shall be executed
only by those College officers or persons authorized by the President or as may
subsequently be authorized by the Board of Visitors, and subject to any such
limits or conditions as may be prescribed in the delegation of authority.
Subject to the College’s Policy Governing Capital Projects adopted by the Board
as part of the Management Agreement between the Commonwealth and the College,
no other College approval shall be required for leases or leasing, nor state
approval required except in the case of leases of real property as may be
governed by general state law in accordance with §§ 23-38.109 and 23-38.112 of
the Act.
E. Capital Leases.
The Board of Visitors shall authorize the initiation of
Capital Leases pursuant to the authorization process included in the Policy
Governing Capital Projects adopted by the Board as part of the Management
Agreement between the Commonwealth and the College.
F. Compliance with Applicable Law.
All Leases of real property by the College shall be
consistent with any requirements of law that are contained in the Act or are
otherwise applicable.
G. Certification of Occupancy.
All real property covered by an Expense Lease or leased by
the College under a Capital Lease shall be certified for occupancy by the
appropriate public body or building official.
EXHIBIT I
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE COLLEGE OF WILLIAM AND MARY IN VIRGINIA
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION FINANCIAL AND
ADMINISTRATIVE OPERATIONS ACT OF 2005
POLICY GOVERNING
INFORMATION TECHNOLOGY
THE RECTOR AND VISITORS OF
THE COLLEGE OF WILLIAM AND MARY IN VIRGINIA
POLICY GOVERNING INFORMATION TECHNOLOGY
I. PREAMBLE.
The Restructured Higher Education Financial and
Administrative Operations Act (the Act), Chapter 4.10 (§ 23-38.88 et seq.) of
Title 23 of the Code of Virginia, provides, inter alia, that public
institutions of higher education in the Commonwealth of Virginia that have
entered into a Management Agreement with the Commonwealth “may be exempt from
the provisions governing the Virginia Information Technologies Agency, Chapter
20.1 (§ 2.2-2005 et seq.) of Title 2.2., and the provisions governing the Information
Technologies [sic] Investment Board, Article 20 of Chapter 24 (§ 2.2-2457 et
seq.) of Title 2.2; provided, however, that the governing body of . . .
[such] institution shall adopt, and . . . [such] institution shall comply
with, policies” that govern the exempted provisions. See § 23-38.111 of
the Code of Virginia. This Information Technology Policy shall become
effective upon the effective date of a Management Agreement authorized by
subsection D of § 23-38.88 and § 23-38.97 of the Act between the Commonwealth
and the College of William and Mary in Virginia that incorporates this
Policy.
The Board of Visitors of the College is authorized to adopt
this Information Technology Policy pursuant to § 23-38.111 of the Code of Virginia.
II. DEFINITIONS.
As used in this Information Technology Policy, the
following terms have the following meanings, unless the context requires
otherwise:
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of
the Code of Virginia.
“Board of Visitors” or “Board” means the Rector and Board
of Visitors of the College of William and Mary in Virginia.
“College” means the College of William and Mary in Virginia, (State Agency 204), and the Virginia Institute of Marine Science, (State Agency
268).
“Information Technology” or “IT” shall have the same
meaning as set forth in § 2.2-2006 of the Code of Virginia as it currently
exists and from time to time may be amended.
“Major information technology project” or “major IT
project” shall have the same meaning as set forth in § 2.2-2006 of the Code of
Virginia as it currently exists and from time to time may be amended.
“Policy” means this Information Technology Policy adopted
by the Board of Visitors.
“State Chief Information Officer” or “State CIO” means the
Chief Information Officer of the Commonwealth of Virginia.
III. SCOPE OF POLICY.
This Policy is intended to cover and implement the
authority that may be granted to the College pursuant to Subchapter 3 (§
23-38.91 et seq.) of the Act. This Policy is not intended to affect any
other powers and authorities granted to the College pursuant to the
Appropriation Act and the Code of Virginia, including other provisions of the
Act or the College’s enabling legislation as that term is defined in § 23-38.89
of the Act.
This Policy shall govern the College’s information
technology strategic planning, expenditure reporting, budgeting, project
management, infrastructure, architecture, ongoing operations, security, and
audits conducted within, by, or on behalf of the College. Upon the
effective date of a Management Agreement between the Commonwealth and the
College, as authorized by subsection D of § 23-38.88 and § 23-38.111,
therefore, the College shall be exempt from those provisions of the Code of
Virginia, including those provisions of Chapter 20.1 (§ 2.2-2005 et seq.)
(Virginia Information Technologies Agency) and of Article 20 (§ 2.2-2457 et
seq.) (Information Technology Investment Board) of Chapter 24 of Title 2.2 of
the Code of Virginia, that otherwise would govern the College’s information
technology strategic planning, expenditure reporting, budgeting, project
management, infrastructure, architecture, ongoing operations, security, and
audits conducted within, by, or on behalf of the College; provided, however,
that the College still shall be subject to those provisions of Chapter 20.1 (§
2.2-2005 et seq.) (Virginia Information Technologies Agency) and of Article 20
(§ 2.2-2457 et seq.) (Information Technology Investment Board) of Chapter
24 of Title 2.2 of the Code of Virginia, that are applicable to public
institutions of higher education of the Commonwealth and that do not govern
information technology strategic planning, expenditure reporting, budgeting,
project management, infrastructure, architecture, ongoing operations, security,
and audits within, by, or on behalf of the College.
The procurement of information technology and
telecommunications goods and services, including automated data processing
hardware and software, shall be governed by the Policy Governing the
Procurement of Goods, Services, Insurance, and Construction, and the
Disposition of Surplus Materials approved by the Board, and the Rules Governing
Procurement of Goods, Services, Insurance, and Construction that are
incorporated in and attached to that Policy.
IV. GENERAL PROVISIONS.
A. Board of Visitors Accountability and Delegation of
Authority.
The Board of Visitors of the College shall at all times be
fully and ultimately accountable for the proper fulfillment of the duties and
responsibilities set forth in, and for the appropriate implementation of, this
Policy. Consistent with this full and ultimate accountability, however,
the Board may, pursuant to its legally permissible procedures, specifically
delegate either herein or by separate Board resolution the duties and
responsibilities set forth in this Policy to a person or persons within the
College, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the College’s usual delegation policies and
procedures.
B. Strategic Planning.
The President shall be responsible for overall IT strategic
planning at the College, which shall be linked to and in support of the
College’s overall strategic plan.
At least 45 days prior to each fiscal year, the President
shall make available the College’s IT strategic plan covering the next fiscal
year to the State CIO for his review and comment with regard to the consistency
of the College’s plan with the intent of the currently published overall
five-year IT strategic plan for the Commonwealth developed by the State CIO
pursuant to § 2.2-2007 of the Code of Virginia, and into which the College’s
plan is to be incorporated.
C. Expenditure Reporting and Budgeting.
The President shall approve and be responsible for overall
IT budgeting and investments at the College. The College’s IT budget and
investments shall be linked to and in support of the College’s IT strategic
plan, and shall be consistent with general College policies, the Board-approved
annual operating budget, and other Board approvals for certain procurements.
By October 1 of each year, the President shall make
available to the State CIO and the Information Technology Investment Board a
report on the previous fiscal year’s IT expenditures.
The College shall be specifically exempt from:
Subdivision A 4 of § 2.2-2007 of the Code of Virginia (review by the State CIO of IT budget requests), as it currently exists and from
time to time may be amended;
§§ 2.2-2022 through 2.2-2024 of the Code of Virginia (Virginia Technology Infrastructure Fund), as they currently exist and from time
to time may be amended; and
Any other substantially similar provision of the Code of Virginia governing IT expenditure reporting and budgeting, as it currently exists and from
time to time may be amended.
D. Project Management.
Pursuant to § 23-38.111 of the Act, the Board shall adopt
the project management policies, standards, and guidelines developed by the
Commonwealth or those based upon industry best practices for project management
as defined by leading IT consulting firms, leading software development firms,
or a nationally-recognized project management association, appropriately
tailored to the specific circumstances of the College. Copies of the
Board’s policies, standards, and guidelines shall be made available to the
Information Technology Investment Board.
The President, acting through his designee, shall oversee
the management of all College IT projects. IT projects may include, but
are not limited to, upgrades to network infrastructure, provision of technology
to support research, database development, implementation of new applications, and
development of IT services for students, faculty, staff, and patients.
Day-to-day management of projects shall be the responsibility of appointed
project directors and shall be in accord with the project management policies,
standards, and guidelines adopted by the Board, as amended and revised from
time to time.
On a quarterly basis, the President, acting through his
designee, shall report to the Information Technology Investment Board on the
budget, schedule, and overall status of the College’s major IT projects.
This requirement shall not apply to research projects, research initiatives, or
instructional programs.
The President shall be responsible for decisions to
substantially alter a project’s scope, budget, or schedule after initial
approval.
The College shall be specifically exempt from:
§ 2.2-2008 of Title 2.2 of the Code of Virginia (additional
duties of the State CIO relating to project management), as it currently exists
and from time to time may be amended;
§§ 2.2-2016 through 2.2-2021 of Title 2.2 of the Code of
Virginia (Division of Project Management), as they currently exist and from
time to time may be amended; and
Any other substantially similar provision of the Code of Virginia governing IT project management, as it currently exists or from time to time may
be amended.
The State CIO and the Information Technology Investment
Board shall continue to have the authority regarding project suspension and
termination as provided in § 2.2-2015 and in subdivision A 3 of § 2.2-2458,
respectively, and the State CIO and the Information Technology Investment Board
shall continue to provide the College with reasonable notice of, and a
reasonable opportunity to correct, any identified problems before a project is
terminated.
E. Infrastructure, Architecture, Ongoing Operations, and
Security.
Pursuant to § 23-38.111 of the Act, the Board shall adopt
the policies, standards, and guidelines related to IT infrastructure,
architecture, ongoing operations, and security developed by the Commonwealth or
those of nationally-recognized associations, appropriately tailored to the
specific circumstances of the College. Copies of the policies shall be
made available to the Information Technology Investment Board.
The President, acting through his designee, shall be
responsible for implementing such policies, standards, and guidelines adopted
by the Board, as amended and revised from time to time.
For purposes of implementing this Policy, the President
shall appoint an existing College employee to serve as a liaison between the
College and the State CIO.
F. Audits.
Pursuant to § 23-38.111 of the Act, the Board shall adopt
the policies, standards, and guidelines developed by the Commonwealth or those
based upon industry best practices for project auditing as defined by leading
IT experts, including consulting firms, or a nationally-recognized project
auditing association, appropriately tailored to the specific circumstances of
the College, which provide for Independent Validation and Verification
(IV&V) of the College’s major IT projects. Copies of the policies,
standards, and guidelines, as amended and revised from time to time, shall be
made available to the Information Technology Investment Board.
Audits of IT strategic planning, expenditure reporting,
budgeting, project management, infrastructure, architecture, ongoing
operations, and security, shall also be the responsibility of the College’s
Internal Audit Department and the Auditor of Public Accounts.
EXHIBIT J
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE COLLEGE OF WILLIAM AND MARY IN VIRGINIA
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING
THE PROCUREMENT OF GOODS, SERVICES,
INSURANCE, AND CONSTRUCTION AND
THE DISPOSITION OF SURPLUS MATERIALS
THE RECTOR AND VISITORS OF THE COLLEGE OF WILLIAM AND MARY
POLICY GOVERNING THE PROCUREMENT OF
GOODS, SERVICES, INSURANCE AND CONSTRUCTION
AND THE DISPOSITION OF SURPLUS MATERIALS
I. PREAMBLE.
A. Subchapter 3 of the Restructured Higher Education
Financial and Administrative Operations Act (the Act), Chapter 4.10 (§ 23-38.88
et seq.) of Title 23 of the Code of Virginia, provides that the College of
William and Mary in Virginia, upon becoming a Covered Institution, shall be authorized
to establish its own system for the procurement of goods, services, insurance,
and construction, and for the independent disposition of surplus materials by
public or private transaction.
B. The Act provides that a Covered Institution shall comply
with policies adopted by its Board of Visitors for the procurement of goods,
services, insurance, and construction, and the disposition of surplus
materials. The provisions of this Policy set forth below, together with
the Rules Governing Procurement of Goods, Services, Insurance, and Construction
attached to this Policy as Attachment 1, constitute the adopted Board of
Visitors policies required by the Act regarding procurement of goods, services,
insurance, and construction, and the disposition of surplus materials by the
College.
C. This Policy is intended to cover the authority that may
be granted to the College pursuant to Subchapter 3 of the Act. Any other
powers and authorities granted to the College pursuant to any other sections of
the Code of Virginia, including other provisions of the Act, the Appropriation
Act, and the College’s Enabling Legislation are not affected by this Policy.
II. DEFINITIONS.
As used in this Policy, the following terms shall have the
following meanings, unless the context requires otherwise:
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of
the Code of Virginia.
“Agreement” means “Management Agreement.”
“Board of Visitors” means the Rector and Visitors of the College of William and Mary in Virginia.
“College” means the College of William and Mary in Virginia, (State Agency 204), and the Virginia Institute of Marine Science, (State Agency
268).
“Covered Institution” means, on and after the Effective
Date of its initial Management Agreement, a public institution of higher
education of the Commonwealth of Virginia that has entered into a Management
Agreement with the Commonwealth to be governed by the provisions of Subchapter
3 of the Act.
“Effective Date” means the effective date of the Management
Agreement.
“Enabling Legislation” means those chapters, other than
Chapter 4.10, of Title 23 of the Code of Virginia, as amended, creating,
continuing, or otherwise setting forth the powers, purposes, and missions of
the individual public institutions of higher education of the Commonwealth.
“Goods” means all material, equipment, supplies, and
printing, including information technology and telecommunications goods such as
automated data processing hardware and software.
“Management Agreement” means the agreement required by
subsection D of § 23-38.88 between the Commonwealth of Virginia, and the College of William and Mary in Virginia.
“Rules” means the “Rules Governing Procurement of Goods, Services,
Insurance, and Construction” attached to this Policy as Attachment 1.
“Services” as used in this Policy 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, and shall include both professional services, which
include the practice of accounting, actuarial services, law, dentistry,
medicine, optometry, and pharmacy, and nonprofessional services, which include
any service not specifically identified as professional services.
“Surplus materials” means personal property including, but
not limited to, materials, supplies, equipment and recyclable items, that are
determined to be surplus by the College.
III. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the College shall at all times be
fully and ultimately accountable for the proper fulfillment of the duties and
responsibilities set forth in, and for the appropriate implementation of, this
Policy. Consistent with this full and ultimate accountability, however,
the Board may, pursuant to its legally permissible procedures, specifically
delegate either herein or by separate Board resolution the duties and responsibilities
set forth in this Policy to a person or persons within the College, who, while
continuing to be fully accountable for such duties and responsibilities, may
further delegate the implementation of those duties and responsibilities
pursuant to the College’s usual delegation policies and procedures.
IV. GENERAL PROVISIONS.
A. Adoption of This Policy and Continued Applicability of
Other Board of Visitors' Procurement Policies.
The College has had decentralization and pilot program
autonomy in many procurement functions and activities since the Appropriation
Act of 1994. The Act extends and reinforces the autonomy previously
granted to the College in Item 330 E of the 1994 Appropriation Act. This
Policy therefore is adopted by the Board of Visitors to enable the College to
develop a procurement system, as well as a surplus materials disposition
system. Any College electronic procurement system shall integrate or
interface with the Commonwealth’s electronic procurement system.
This Policy shall be effective on the Effective Date of the
College’s initial Management Agreement with the Commonwealth. The
implementing policies and procedures adopted by the President to implement this
Policy shall continue to be subject to any other policies adopted by the Board
of Visitors affecting procurements at the College, including policies regarding
the nature and amounts of procurements that may be undertaken without the
approval of the Board of Visitors, or of the President.
B. Scope and Purpose of College Procurement Policies.
This Policy shall apply to procurements of goods, services,
insurance, and construction. It shall be the policy of the College that
procurements conducted by the College result in the purchase of high quality
goods and services at reasonable prices, and that the College be free, to the
maximum extent permitted by law and this Policy, from constraining policies
that hinder the ability of the College to do business in a competitive
environment. This Policy, together with the Rules Governing Procurement
of Goods, Services, Insurance, and Construction attached to this Policy as
Attachment 1, shall apply to all procurements undertaken by the College,
regardless of the source of funds.
C. Collaboration, Communication, and Cooperation with the
Commonwealth.
The College is committed to developing, maintaining, and
sustaining collaboration, communication, and cooperation with the Commonwealth
regarding the matters addressed in this Policy, particularly with the Offices
of the Secretaries of Administration and Technology, the Department of General
Services, and the Virginia Information Technologies Agency. Identifying
business objectives and goals common to both the College and the Commonwealth
and the mechanisms by which such objectives and goals may be jointly pursued
and achieved are among the desired outcomes of such collaboration,
communication, and cooperation.
D. Commitment to Statewide Contracts, Electronic
Procurement, and SWAM Participation and Use.
The College is committed to maximizing its internal operational
efficiencies, economies of scale among institutions of higher education, and
the leveraged buying power of the Commonwealth as a whole.
Consistent with this commitment, the College:
i) May purchase from and participate in all statewide
contracts for goods and services, including information technology goods and
services, except that the College shall purchase from and participate in
contracts for communications services and telecommunications facilities entered
into by the Virginia Information Technologies Agency pursuant to § 2.2-2011 of
the Code of Virginia unless an exception is provided in the Appropriation Act
or by other law, and provided that orders not placed through statewide
contracts shall be processed directly or by integration or interface through
the Commonwealth’s electronic procurement system;
ii) Shall use directly or by integration or interface the
Commonwealth’s electronic procurement system; and
iii) Shall adopt a small, woman-owned, and minority-owned
(SWAM) business program that is consistent with the Commonwealth’s SWAM
program.
E. Implementation.
To effect its implementation under the Act, and if the
College remains in continued substantial compliance with the terms and
conditions of this Management Agreement with the Commonwealth pursuant to §
23-38.88(D)(4) and the requirements of Chapter 4.10 of the Act, the College’s
procurement of goods, services, insurance, and construction, and the
disposition of surplus materials shall be exempt from the Virginia Public
Procurement Act, Chapter 43 (§ 2.2-4300 et seq.) of Title 2.2, except §
2.2-4342 and §§ 2.2-4367 through 2.2-4377; the oversight of the Virginia
Information Technologies Agency, Chapter 20.1 (§ 2.2-2005 et seq.) of Title
2.2, and the Information Technology Investment Board, Article 20 (§ 2.2-2457 et
seq.) of Chapter 24 of Title 2.2; the state agency requirements regarding
disposition of surplus materials and distribution of proceeds from the sale or
recycling of surplus materials in §§ 2.2-1124 and 2.2-1125; the requirement to
purchase from the Department for the Blind and Vision Impaired (VIB) (§
2.2-1117); and any other state statutes, rules, regulations or requirements
relating to the procurement of goods, services, insurance, and construction,
including but not limited to Article 3 (§ 2.2-1109 et seq.) of Chapter 11 of
Title 2.2 of the Code of Virginia, regarding the duties, responsibilities and
authority of the Division of Purchases and Supply of the Virginia Department of
General Services, and Article 4 (§ 2.2-1129 et seq.) of Chapter 11 of Title 2.2
of the Code of Virginia, regarding the review and the oversight by the Division
of Engineering and Buildings of the Virginia Department of General Services of
contracts for the construction of College capital projects and
construction-related professional services (§ 2.2-1132).
V. COLLEGE PROCUREMENT POLICIES.
A. General Competitive Principles.
In connection with College procurements and the processes
leading to award of contracts for goods, services, insurance, and construction,
the College is committed to:
Seeking competition to the maximum practical degree, taking
into account the size of the anticipated procurement, the term of the resulting
contract and the likely extent of competition;
Conducting all procurements in an open, fair and impartial
manner and avoiding any impropriety or the appearance of any impropriety;
Making procurement rules clear in advance of any
competition;
Providing access to the College's business to all qualified
vendors, firms and contractors, with no potential bidder or offeror excluded
arbitrarily or capriciously, while allowing the flexibility to engage in
cooperative procurements and to meet special needs of the College;
Ensuring that specifications for purchases are fairly drawn
so as not to favor unduly a particular vendor; and
Providing for the free exchange of information between the
College, vendors, firms or contractors concerning the goods or services sought
and offered while preserving the confidentiality of proprietary information.
B. Access to Records.
Procurement records shall be available to citizens or to
interested persons, firms or corporations in accordance with the provisions of
the Virginia Freedom of Information Act, Chapter 37 (§ 2.2-3700 et seq.) of
Title 2.2 of the Code of Virginia, except those records exempt from disclosure
pursuant to § 2.2-3705.1 (7), § 2.2-3705.1 (12), or § 2.2-3705.4 (4), or other
applicable exemptions of the Virginia Freedom of Information Act, and §
2.2-4342 of the Virginia Public Procurement Act.
C. Cooperative Procurements and Alliances.
In circumstances where the College determines and documents
that statewide contracts for goods and services, including information
technology and telecommunications goods and services, do not provide goods and
services to the College that meet its business goals and objectives, the
College is authorized to participate in cooperative procurements with other
public or private organizations or entities, including other educational
institutions, public-private partnerships, public bodies, charitable
organizations, health care provider alliances and purchasing organizations, so
long as the resulting contracts are procured competitively pursuant to
subsections A through J of § 5 of the Rules Governing Procurement of Goods,
Services, Insurance, and Construction attached to this Policy as Attachment 1
and the purposes of this Policy are furthered. In the event the College
engages in a cooperative contract with a private organization or public-private
partnership and the contract was not competitively procured pursuant to
subsections A through J of § 5 of the Rules Governing Procurement of Goods,
Services, Insurance, and Construction attached to this Policy as Attachment 1,
use of the contract by other state agencies, institutions and public bodies
shall be prohibited. Notwithstanding all of the above, use of cooperative
contracts shall conform to the business requirements of the Commonwealth’s
electronic procurement system, including the requirement for payment of applicable
fees. By October 1 of each year, the President, or his designee, shall
make available to the Secretaries of Administration and Technology, the Joint
Legislative Audit and Review Commission, and the Auditor of Public Accounts a
list of all cooperative contracts and alliances entered into or used during the
prior fiscal year.
D. Training; Ethics in Contracting.
The President, acting through his designee, shall take all
necessary and reasonable steps to assure (i) that all College officials
responsible for and engaged in procurements authorized by the Act and this
Policy are knowledgeable regarding the requirements of the Act, this Policy,
and the Ethics in Public Contracting provisions of the Virginia Public
Procurement Act, Article 6 (§ 2.2-4367 et seq.) of Chapter 43 of Title 2.2 of
the Code of Virginia, (ii) that only officials authorized by this Policy and
any procedures adopted by the President to implement this Policy are
responsible for and engaged in such procurements, and (iii) that compliance
with the Act and this Policy are achieved.
The College shall maintain an ongoing program to provide
professional development opportunities to its buying staff and to provide
methods training to internal staff who are engaged in placing decentralized
small purchase transactions.
E. Ethics and College Procurements.
In implementing the authority conferred by this Policy, the
personnel administering any procurement shall adhere to the following
provisions of the Code of Virginia: the Ethics in Public Contracting provisions
of the Virginia Public Procurement Act, Article 6 (§ 2.2-4367 et seq.) of
Chapter 43 of Title 2.2 of the Code of Virginia, the State and Local Government
Conflict of Interests Act, Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2, and
the Virginia Governmental Frauds Act, Article 1.1 (§ 18.2-498.1 et seq.) of
Chapter 12 of Title 18.2.
VI. COLLEGE SURPLUS MATERIALS POLICY AND
PROCEDURES.
The policy and procedures for disposal for surplus
materials shall provide for the sale, environmentally-appropriate disposal, or
recycling of surplus materials by the College and the retention of the
resulting proceeds by the College.
VII. ADOPTION AND EFFECTIVE DATES OF RULES AND IMPLEMENTING
POLICIES AND PROCEDURES.
The President shall adopt one or more comprehensive sets of
specific procurement policies and procedures for the College, which, in
addition to the Rules, implement applicable provisions of law and this
Policy. College procurements shall be carried out in accordance with this
Policy, the Rules, and any implementing policies and procedures adopted by the
College. The implementing policies and procedures (i) shall include the
delegation of procurement authority by the Board to appropriate College
officials who shall oversee College procurements of goods, services, insurance,
and construction, including a grant of authority to such officials to engage in
further delegation of authority as the President deems appropriate, and (ii)
shall remain consistent with the competitive principles set forth in Part V above.
Any implementing policies and procedures adopted pursuant
to Part VII A above and the Rules shall become effective on the Effective Date
of the College’s initial Management Agreement with the Commonwealth, and, as of
their effective date, shall be applicable to all procurements undertaken by the
College on behalf of the College for goods, services, insurance, and
construction. This Policy, the Rules, and any implementing policies and
procedures adopted by the College shall not affect existing contracts already
in effect.
The Rules and College implementing policies and procedures
for all College procurements of goods, services, insurance, and construction,
and the disposition of surplus property shall be substantially consistent with
the Commonwealth of Virginia Purchasing Manual for Institutions of Higher
Education and their Vendors in their form as of the effective date of this
Policy and as amended or changed in the future, and with College procedures
specific to the Acquisition of Goods and Services. The Rules and College
implementing policies and procedures shall implement a system of competitive
negotiation, and competitive sealed bidding when appropriate, for goods,
services, including professional services as defined in the Rules, insurance,
and construction.
VIII. REQUIREMENTS FOR RULES AND IMPLEMENTING POLICIES AND
PROCEDURES.
A. Protests, Appeals and Debarment.
The Rules and College implementing policies and procedures
for procurements other than capital outlay shall include a process or processes
for an administrative appeal by vendors, firms or contractors. Protests
and appeals may challenge determinations of vendor, firm or contractor
non-responsibility or ineligibility, or the award of contracts, provided that
such protests and appeals are filed within the times specified by the
Rules. Remedies available shall be limited to reversal of the action
challenged or, where a contract already being performed is declared void,
compensation for the cost of performance up to the time of such declaration.
The Rules and College implementing policies and procedures also may establish
the basis and process for debarment of any vendor, firm or contractor.
B. Prompt Payment of Contractors and Subcontractors.
The Rules and College implementing policies and procedures
shall include provisions related to prompt payment of outstanding invoices,
which shall include payment of interest on properly-presented invoices
outstanding more than seven (7) days beyond the payment date, at a rate no
higher than the lowest prime rate charged by any commercial bank as published
in the Wall Street Journal. The payment date shall be the later of thirty
(30) days from the date of the receipt of goods or invoice, or the date
established by the contract. All contracts also shall require prompt
payment of subcontractors by the general contractor, upon receipt of payment by
the College.
C. Types of Procurements.
The Rules and College implementing policies and procedures
shall implement a system of competitive negotiation for professional services,
as defined in the Rules, and shall implement purchasing procedures developed to
maximize competition given the size and duration of the contract, and the needs
of the College. Such policies and procedures may include special provisions
for procurements such as emergency procurements, sole source procurements,
brand name procurements, small purchases, procurements in which only one
qualified vendor responds, and others.
D. Approval and Public Notice of Procurements.
The Rules and College implementing policies and procedures
shall provide for approval of solicitation documents by an authorized
individual and for reasonable public notice of procurements, given the size and
nature of the need and the applicability of any Virginia Freedom of Information
Act exemption.
E. Administration of Contracts.
The Rules and College implementing policies and procedures
shall contain provisions related to the administration of contracts, including
contract claims, modifications, extensions and assignments.
F. Non-Discrimination.
The Rules and College implementing policies and procedures
shall provide for a non-discriminatory procurement process that prohibits
discrimination because of race, religion, color, sex or national origin of the
bidder or offeror in the solicitation and award of contracts; and shall include
appropriate provisions to effectuate fair and reasonable consideration of
women-owned, minority-owned and small businesses and to promote and encourage a
diversity of suppliers.
ATTACHMENT 1
Rules Governing Procurement of Goods, Services, Insurance,
and Construction
by a Public Institution of Higher Education of the Commonwealth of Virginia
Governed by Subchapter 3 of the
Restructured Higher Education Financial and Administrative
Operations Act,
Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of the Code of
Virginia
In accordance with the provisions of the Restructured
Higher Education Financial and Administrative Operations Act (the Act), Chapter
4.10 (§ 23-38.88 et seq.) of Title 23 of the Code of Virginia, and in
particular § 23-38.110 of the Act, the governing body of a public institution
of higher education of the Commonwealth of Virginia that has entered into a
Management Agreement with the Commonwealth pursuant to Subchapter 3 of the Act,
has adopted the following Rules Governing Procurement of Goods, Services,
Insurance, and Construction to govern the procurement of goods, services,
insurance, and construction by the Institution, excluding the University of
Virginia Medical Center:
§ 1. Purpose. –
The purpose of these Rules is to enunciate the public
policies pertaining to procurement of good, services, insurance, and
construction by the Institution from nongovernmental sources, to include
governmental procurement that may or may not result in monetary consideration
for either party. These Rules shall apply whether the consideration is
monetary or nonmonetary and regardless of whether the Institution, the
contractor, or some third party is providing the consideration.
§ 2. Scope of Procurement Authority. –
Subject to these Rules, and the Institution’s continued
substantial compliance with the terms and conditions of its Management
Agreement with the Commonwealth pursuant to § 23-38.88(D)(4) and the
requirements of Chapter 4.10 of the Act, the Institution shall have and shall
be authorized to have and exercise all of the authority relating to procurement
of goods, services, insurance, and construction, including but not limited to
capital outlay-related procurement and information technology-related
procurement, that Institutions are authorized to exercise pursuant to
Subchapter 3 of the Restructuring Act.
§ 3. Competition is the Priority. –
To the end that the Institution shall obtain high quality
goods and services at reasonable cost, that all procurement procedures be
conducted in an open, fair and impartial manner with avoidance of any
impropriety or appearance of impropriety, that all qualified vendors have
access to the Institution’s business and that no offeror be arbitrarily or capriciously
excluded, it is the intent of the governing body of the Institution that
competition be sought to the maximum feasible degree, that procurement
procedures involve openness and administrative efficiency, that individual
public bodies enjoy broad flexibility in fashioning details of such
competition, that the rules governing contract awards be made clear in advance
of the competition, that specifications reflect the procurement needs of the
purchasing body rather than being drawn to favor a particular vendor, and that
the purchaser and vendor freely exchange information concerning what is sought
to be procured and what is offered. The Institution may consider best
value concepts when procuring goods and nonprofessional services, but not
construction or professional services. Professional services will be
procured using a qualification-based selection process. 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.
§ 4. Definitions. –
As used in these Rules:
“Affiliate” means an individual or business that controls,
is controlled by, or is under common control with another individual or
business. A person controls an entity if the person owns, directly or
indirectly, more than 10% of the voting securities of the entity. For the
purposes of this definition “voting security” means a security that (i) confers
upon the holder the right to vote for the election of members of the board of directors
or similar governing body of the business or (ii) is convertible into, or
entitles the holder to receive, upon its exercise, a security that confers such
a right to vote. A general partnership interest shall be deemed to be a
voting security.
“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 the Institution’s needs.
“Business” means any type of corporation, partnership,
limited liability company, association, or sole proprietorship operated for
profit.
“Competitive negotiation” is a method of contractor
selection that includes the following elements:
1. Issuance of a written Request for Proposal
indicating in general terms that which is sought to be procured, specifying the
factors that will be used in evaluating the proposal and containing or
incorporating by reference the other applicable contractual terms and
conditions, including any unique capabilities or qualifications that will be
required of the contractor.
2. Public notice of the Request for Proposal at least
10 days prior to the date set for receipt of proposals by publication in a
newspaper or newspapers of general circulation in the area in which the contract
is to be performed so as to provide reasonable notice to the maximum number of
offerors that can be reasonably anticipated to submit proposals in response to
the particular request. Public notice also shall be published on the
Department of General Services’ central electronic procurement website and may
be published on other appropriate websites. In addition, proposals may be
solicited directly from potential contractors.
3. a. Procurement of professional services. The
procurement of professional services for capital projects shall be conducted
using a qualification-based selection process. The Institution 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. The Request for Proposal shall not, however, request that
offerors furnish estimates of man-hours or cost for services. At the
discussion stage, the Institution may discuss nonbinding estimates of total
project costs, including, but not limited to, life-cycle costing, and where
appropriate, nonbinding estimates of price for services. Proprietary
information from competing offerors shall not be disclosed to the public or to
competitors. At the conclusion of discussion, outlined in this
subdivision, on the basis of evaluation factors published in the Request for
Proposal and all information developed in the selection process to this point,
the Institution 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 with the
offeror ranked first. If a contract satisfactory and advantageous to the
Institution 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, and so on until such a contract can be
negotiated at a fair and reasonable price. Should the Institution
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.
A contract for architectural or professional engineering
services relating to construction projects may be negotiated by the
Institution, for multiple projects provided (i) the projects require similar
experience and expertise, and (ii) the nature of the projects is clearly
identified in the Request for Proposal. 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 be as set in the Request for Proposal; and (c) the project fee of
any single project shall not exceed the term limit as set in the Request for
Proposal. Any unused amounts from any contract term may be carried
forward. Competitive negotiations for such contracts may result in awards to
more than one offeror provided the Request for Proposal stated the potential
for a multi-vendor award.
Multiphase professional services contracts satisfactory and advantageous to the
Institution for environmental, location, design and inspection work regarding
construction of infrastructure 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 Institution 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 such Institution
require awarding the contract.
b. Procurement of other than professional
services. 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 Request for Proposal, including price if so
stated in the Request for Proposal. Negotiations shall then be conducted with
each of the offerors so selected. Price shall be considered, but need not be
the sole determining factor. After negotiations have been conducted with
each offeror so selected, the Institution shall select the offeror which, in
its opinion, has made the best proposal, and shall award the contract to that
offeror. When the terms and conditions of multiple awards are so provided
in the Request for Proposal, awards may be made to more than one offeror.
Should the Institution determine in writing and in its sole discretion that
only one offeror has made the best proposal, a contract may be negotiated and
awarded to that offeror.
“Competitive sealed bidding” is a method of contractor
selection, other than for professional services, which includes the following
elements:
1. Issuance of a written Invitation to Bid containing
or incorporating by reference the specifications and contractual terms and
conditions applicable to the procurement. Unless the Institution has provided
for prequalification of bidders, the Invitation to Bid shall 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, an Invitation to Bid may be issued requesting the submission
of unpriced offers to be followed by an Invitation to Bid limited to those
bidders whose offers have been qualified under the criteria set forth in the
first solicitation.
2. Public notice of the Invitation to Bid at least 10
days prior to the date set for receipt of bids by publication on the Department
of General Services’ central electronic procurement website. Public
notice also may be published in a newspaper of general circulation or on other
appropriate websites, or both. In addition, bids may be solicited
directly from potential contractors. Any additional solicitations shall
include businesses selected from a list made available by the Department of
Minority Business Enterprise.
3. Public opening and announcement of all bids
received.
4. Evaluation of bids based upon the requirements set
forth in the invitation, which may include special qualifications of potential
contractors, 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. When the terms and conditions of multiple awards are so provided in the
Invitation to Bid, awards may be made to more than one bidder.
“Construction” means building, altering, repairing,
improving or demolishing any structure, building or highway, and any draining,
dredging, excavation, grading or similar work upon real property.
“Construction management contract” means 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.
“Covered Institution” or “Institution” means, on and after
the effective date of the initial management agreement with the Commonwealth of Virginia, a public institution of higher education of the Commonwealth
that has entered into a management agreement with the Commonwealth to be
governed by the provisions of Subchapter 3 of the Restructuring Act.
“Design-build contract” means a contract between the
Institution and another party in which the party contracting with the
Institution agrees to both design and build the structure, roadway or other
item specified in the contract.
“Goods” means all material, equipment, supplies, and
printing, including information technology and telecommunications goods such as
automated data processing hardware and software.
“Informality” means a minor defect or variation of a bid or
proposal from the exact requirements of the Invitation to Bid, or the Request
for Proposal, which does not affect the price, quality, quantity or delivery
schedule for the goods, services or construction being procured.
“Multiphase professional services contract” means a
contract for the providing of professional services where the total scope of
work of the second or subsequent phase of the contract cannot be specified
without the results of the first or prior phase of the contract.
“Nonprofessional services” means any services not
specifically identified as professional services in the definition of
professional services and includes small construction projects valued not over
$1 million; provided that subdivision 3a of the definition of “competitive
negotiation” in this section shall still apply to professional services for
such small construction projects.
“Potential bidder or offeror” for the purposes of §§ 50 and
54 of these Rules means a person who, at the time the Institution 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 the 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.
“Professional services” means work performed by an
independent contractor within the scope of the practice of accounting,
actuarial services, architecture, land surveying, landscape architecture, law,
dentistry, medicine, optometry, pharmacy or professional engineering.
“Public body” means any legislative, executive or judicial
body, 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 these Rules.
“Public contract” means an agreement between the
Institution and a nongovernmental source that is enforceable in a court of law.
“Responsible bidder” or “offeror” means a person who has
the capability, in all respects, to perform fully the contract requirements and
the moral and business integrity and reliability that will assure good faith
performance, and who has been prequalified, if required.
“Responsive bidder” means a person who has submitted a bid
that conforms in all material respects to the Invitation to Bid.
“Restructuring Act” or “Act” means the Restructured Higher
Education Financial and Administrative Operations Act, Chapter 4.10 (§ 23-38.88
et seq.) of Title 23 of the Code of Virginia.
“Rules” means these Rules Governing Procurement of Goods,
Services, Insurance, and Construction adopted by the governing body of the
Covered Institution.
“Reverse auctioning” means a procurement method wherein
bidders are invited to bid on specified goods or nonprofessional services
through real-time electronic bidding, with the award being made to the lowest
responsive and responsible bidder. During the bidding process, bidders’ 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.
“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.
“Sheltered workshop” means a work-oriented rehabilitative
facility with a controlled working environment and individual goals that
utilizes work experience and related services for assisting the handicapped
person to progress toward normal living and a productive vocational status.
§ 5. Methods of procurement. –
A. All public contracts with nongovernmental
contractors for the purchase or lease of goods, or for the purchase of
services, insurance, or construction, shall be awarded after competitive sealed
bidding, or competitive negotiation as provided in this section, unless
otherwise authorized by law.
B. Professional services shall be procured by competitive
negotiation. Qualification-based selection shall be used for design
services.
C. Goods, services, or insurance may be procured by
competitive negotiation.
D. Construction may be procured only by competitive
sealed bidding, except that competitive negotiation may be used in the
following instances upon a determination made in advance by the Institution 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:
1. By the Institution on a fixed price design-build
basis or construction management basis under § 7;
2. By the Institution for the construction,
alteration, repair, renovation or demolition of buildings; or
3. By the Institution for the construction of
highways and any draining, dredging, excavation, grading or similar work upon
real property.
E. 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 writing shall document the basis for this
determination. The Institution shall issue a written notice 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. This notice shall be posted in a designated public
area, which may be the Department of General Services’ website for the
Commonwealth’s central electronic procurement system, or published in a
newspaper of general circulation on the day the Institution awards or announces
its decision to award the contract, whichever occurs first. Public notice
shall also be published on the Department of General Services' website for the
Commonwealth’s central electronic procurement system and may be published on
other appropriate websites.
F. In case of emergency, a contract may be awarded
without competitive sealed bidding or competitive negotiation; however, such
procurement shall be made with such competition as is practicable 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 contract
file. The Institution shall issue a written notice stating that the contract is
being awarded on an emergency basis, and identifying that which is being
procured, the contractor selected, and the date on which the contract was or
will be awarded. This notice shall be posted in a designated public area, which
may be the Department of General Services’ website for the Commonwealth’s
central electronic procurement system, or published in a newspaper of general
circulation on the day the Institution awards or announces its decision to
award the contract, whichever occurs first, or as soon thereafter as is
practicable. Public notice may also be published on the Department of General
Services' website for the Commonwealth’s central electronic procurement system
and other appropriate websites.
G. The Institution may establish purchase procedures,
if adopted in writing, not requiring competitive sealed bids or competitive
negotiation for single or term contracts for goods and services other than
professional services if the aggregate or the sum of all phases is not expected
to exceed $50,000; however, such small purchase procedures shall provide for
competition wherever practicable.
H. The Institution may establish purchase procedures,
if adopted in writing, not requiring competitive negotiation for single or term
contracts for professional services if the aggregate or the sum of all phases
is not expected to exceed $50,000; however such small purchase procedures shall
provide for competition wherever practicable.
I. Upon a determination made in advance by the
Institution and set forth in writing that the purchase of goods, products or
commodities from a public auction sale is in the best interests of the public,
such items may be purchased at the auction, including online public auctions.
The writing shall document the basis for this determination.
J. The purchase of goods or nonprofessional services,
but not construction or professional services, may be made by reverse
auctioning.
§ 6. Cooperative procurement. –
A. In circumstances where the Institution determines
and documents that statewide contracts for goods and services, including
information technology and telecommunications goods and services, do not provide
goods and services to the Institution that meet its business goals and
objectives, the Institution is authorized to participate in, sponsor, conduct,
or administer a cooperative procurement arrangement on behalf of or in
conjunction with public bodies, public or private health or educational
institutions, other public or private organizations or entities, including
public-private partnerships, charitable organizations, health care provider
alliances or purchasing organizations or entities, or with public agencies or
institutions or group purchasing organizations of the several states,
territories of the United States, or the District of Columbia, for the purpose
of combining requirements to effect cost savings or reduce administrative
expense in any acquisition of goods and services, other than professional
services. The Institution may purchase from any authority, department,
agency, institution, city, county, town, or other political subdivision of the
Commonwealth'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. In such instances, deviation from the procurement procedures set
forth in these Rules and the administrative policies and procedures established
to implement these Rules shall be permitted. Notwithstanding all of the
above, use of cooperative contracts shall conform to the business requirements
of the Commonwealth’s electronic procurement system, including the requirement
for payment of applicable fees. Nothing herein shall prohibit the payment
by direct or indirect means of any administrative fee that will allow for
participation in any such arrangement.
B. In circumstances where statewide contracts for
goods and services, including information technology and telecommunications
goods and services, do not provide goods and services to meet the Institution’s
business goals and objectives, and as authorized by the United States Congress
and consistent with applicable federal regulations, and provided the terms of
the contract permit such purchases:
1. The Institution may purchase goods and
nonprofessional services, from a United States General Services Administration
contract or a contract awarded by any other agency of the United States
government; and
2. The Institution may purchase telecommunications
and information technology goods and nonprofessional services from a United
States General Services Administration contract or a contract awarded by any
other agency of the United States government.
§ 7. Design-build or construction management
contracts authorized. –
A. Notwithstanding any other provisions of law, the
Institution may enter into contracts on a fixed price design-build basis or
construction management basis in accordance with the provisions of this
section.
B. Procurement of construction by the design-build or
construction management method shall be a two-step competitive negotiation
process. In the first step, offerors shall be requested to submit their
qualifications. Based upon the information submitted and any other
relevant information which the Commonwealth may obtain, no more than five
offerors deemed most suitable for the project shall be selected by the
Commonwealth and requested to submit proposals.
§ 8. Modification of the contract. –
A. A contract awarded by the Institution may include
provisions for modification of the contract during performance, but no
fixed-price contract may be increased by more than 25% of the amount of the
contract or $50,000, whichever is greater, without the advance written approval
of the Institution’s president or his designee. 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.
B. The Institution may extend the term of an existing
contract for services to allow completion of any work undertaken but not
completed during the original term of the contract.
C. Nothing in this section shall prevent the
Institution from placing greater restrictions on contract modifications.
§ 9. Discrimination prohibited; participation of
small, women- and minority-owned business. –
A. In the solicitation or awarding of contracts, the
Institution shall not discriminate against a bidder or offeror because of race,
religion, color, sex, national origin, age, disability, or any other basis
prohibited by state law relating to discrimination in employment.
Whenever solicitations are made, the Institution shall include businesses
selected from a list made available by the Department of Minority Business
Enterprise.
B. The Institution shall establish programs consistent
with this section to facilitate the participation of small businesses and
businesses owned by women and minorities in procurement transactions. The
programs established shall be in writing and shall include cooperation with the
Department of Minority Business Enterprise, the United States Small Business
Administration, and other public or private agencies. The Institution
shall submit annual progress reports on minority business procurement to the
Department of Minority Business Enterprise.
C. Whenever there exists (i) a rational basis for
small business enhancement or (ii) a persuasive analysis that documents a
statistically significant disparity between the availability and utilization of
women- and minority-owned businesses, the Governor is by law authorized and
encouraged to require the Institution to implement appropriate enhancement or
remedial measures consistent with prevailing law.
D. In the solicitation or awarding of contracts, the
Institution shall not discriminate against a bidder or offeror because the
bidder or offeror employs ex-offenders unless it has made a written
determination that employing ex-offenders on the specific contract is not in
its best interest.
§ 10. Employment discrimination by contractor prohibited;
required contract provisions. –
The Institution shall include in every contract of more
than $10,000 the following provisions:
1. During the performance of this contract, the
contractor agrees as follows:
a. The contractor will not discriminate against any
employee or applicant for employment because of race, religion, color, sex,
national origin, age, disability, 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 law, rule or regulation shall be deemed sufficient
for the purpose of meeting the requirements of this section.
2. The contractor will include the provisions of the
foregoing paragraphs a, b and c in every subcontract or purchase order of over
$10,000, so that the provisions will be binding upon each subcontractor or
vendor.
§ 11. Drug-free workplace to be maintained by contractor;
required contract provisions.–
The Institution shall include in every contract over
$10,000 the following provisions:
During the performance of this 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 or purchase order 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 connection
with a specific contract awarded to a contractor in accordance with these
Rules, 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.
§ 12. Use of brand names. –
Unless otherwise provided in the Invitation to Bid, the
name of a certain brand, make or manufacturer shall not restrict bidders to the
specific brand, make or manufacturer named and shall be deemed to convey the
general style, type, character, and quality of the article desired. Any
article that the Institution 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.
§ 13. Comments concerning specifications. –
The Institution shall establish procedures whereby
comments concerning specifications or other provisions in Invitations to Bid or
Requests for Proposal can be received and considered prior to the time set for
receipt of bids or proposals or award of the contract.
§ 14. Prequalification generally; prequalification
for construction. –
A. 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 procedure shall be established in writing and sufficiently
in advance of its implementation to allow potential contractors a fair
opportunity to complete the process.
B. Any prequalification of prospective contractors for
construction by the Institution shall be pursuant to a prequalification process
for construction projects adopted by the Institution. The process shall be
consistent with the provisions of this section.
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 subject to the provisions of subsection D of § 34 of these Rules.
In all instances in which the Institution 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.
At least 30 days prior to the date established for
submission of bids or proposals under the procurement of the contract for which
the prequalification applies, the Institution 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.
A decision by the Institution denying prequalification
under the provisions of this subsection shall be final and conclusive unless
the contractor appeals the decision as provided in § 54 of these Rules.
C. The Institution may deny prequalification to any
contractor only if the Institution 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 Institution 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 10 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 Institution without good cause. If the Institution has not contracted
with a contractor in any prior construction contracts, the Institution 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 Institution may not utilize this provision to
deny prequalification unless the facts underlying such substantial
noncompliance were documented in writing in the prior construction project 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 10 years of a crime related to governmental or
nongovernmental construction or contracting, including, but not limited to, a
violation of (i) Article 6 (§ 2.2-4367 et seq.) of Chapter 43 of Title 2.2 of
the Code of Virginia, (ii) the Virginia Governmental Frauds Act (§
18.2-498.1 et seq.), (iii) Chapter 4.2 (§ 59.1-68.6 et seq.) of Title 59.1, or (iv)
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
Institution in a timely manner any information requested by the Institution
relevant to subdivisions 1 through 6 of this subsection.
§ 15. Negotiation with lowest responsible bidder. –
Unless canceled or rejected, a responsive bid from the
lowest responsible bidder shall be accepted as submitted, except that if the
bid from the lowest responsible bidder exceeds available funds, the Institution
may negotiate with the apparent low bidder to obtain a contract price within
available funds. However, the negotiation may be undertaken only under
conditions and procedures described in writing and approved by the Institution
prior to issuance of the Invitation to Bid and summarized therein.
§ 16. Cancellation, rejection of bids; waiver of
informalities. –
A. An Invitation to Bid, a Request for Proposal, any
other solicitation, or any and all bids or proposals, may be canceled or
rejected. The reasons for cancellation or rejection shall be made part of
the contract file. The Institution shall not cancel or reject an
Invitation to Bid, a Request for Proposal, any other solicitation, bid or
proposal pursuant to this section solely to avoid awarding a contract to a
particular responsive and responsible bidder or offeror.
B. The Institution may waive informalities in bids.
§ 17. Exclusion of insurance bids prohibited. –
Notwithstanding any other provision of law, no insurer
licensed to transact the business of insurance in the Commonwealth or approved
to issue surplus lines insurance in the Commonwealth shall be excluded from
presenting an insurance bid proposal to the Institution in response to a
request for proposal or an invitation to bid. Nothing in this section shall
preclude the Institution from debarring a prospective insurer pursuant to § 18.
§ 18. Debarment. –
Prospective contractors may be debarred from contracting
for particular types of supplies, services, insurance or construction, for
specified periods of time. Any debarment procedure shall be established in
writing by the Institution. Any debarment procedure may provide for debarment
on the basis of a contractor’s unsatisfactory performance for the Institution.
§ 19. Purchase programs for recycled goods;
Institution responsibilities. –
A. The Institution may implement a purchase program
for recycled goods and may coordinate its efforts so as to achieve the goals
and objectives set forth in §§ 10.1-1425.6, 10.1-1425.7, and 10.1-1425.8 of the
Code of Virginia and §§ 20 and 22 of these Rules.
B. The Department of Environmental Quality, with
advice from the Virginia Recycling Markets Development Council, shall advise
the Institution concerning the designation of recycled goods.
§ 20. Preference for Virginia products with recycled
content and for Virginia firms. –
A. In the case of a tie bid, preference shall be given to
goods produced in Virginia, goods or services or construction provided by
Virginia persons, firms or corporations; otherwise the tie shall be decided by
lot.
B. Whenever any bidder is a resident of any other state and
such state under its laws allows a resident contractor of that state a
preference, a like preference may be allowed by the Institution to the lowest
responsive and responsible bidder who is a resident of Virginia.
C. Notwithstanding the provisions of subsections A and B,
in the case of a tie bid in instances where goods are being offered, and
existing price preferences have already been taken into account, preference
shall be given to the bidder whose goods contain the greatest amount of
recycled content.
§ 21. Preference for Virginia coal used in the
Institution. –
In determining the award of any contract for coal to be
purchased for use in the Institution with state funds, the Institution shall
procure using competitive sealed bidding and shall award to the lowest
responsive and responsible bidder offering coal mined in Virginia so long as
its bid price is not more than 4% greater than the bid price of the low
responsive and responsible bidder offering coal mined elsewhere.
§ 22. Preference for recycled paper and paper products used
by the Institution. –
A. In determining the award of any contract for paper
and paper products to be purchased for use by the Institution, it shall
competitively procure recycled paper and paper products of a quality suitable
for the purpose intended, so long as the price is not more than 10% greater
than the price of the low responsive and responsible bidder or offeror offering
a product that does not qualify under subsection B.
B. For purposes of this section, recycled paper and
paper products means any paper or paper products meeting the EPA Recommended
Content Standards as defined in 40 C.F.R. Part 247.
§ 23. Withdrawal of bid due to error. –
A. A bidder for a public construction contract, other
than a contract for construction or maintenance of public highways, may
withdraw his bid from consideration if the price bid was substantially lower
than the other bids due solely to a mistake in the bid, 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 his 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
that 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.
One of the following procedures for withdrawal of a bid
shall be selected by the Institution and stated in the advertisement for bids:
(i) the bidder shall give notice in writing of his claim of right to withdraw
his bid within two business days after the conclusion of the bid opening
procedure and shall submit original work papers with such notice; or (ii) the
bidder shall submit to the Institution or designated official his original work
papers, documents and materials used in the preparation of the bid within one
day after the date fixed for submission of bids. The work papers shall be
delivered by the bidder in person or by registered mail at or prior to the time
fixed for the opening of bids. In either instance, the work papers,
documents and materials may be considered as trade secrets or proprietary
information subject to the conditions of subsection F of § 34 of these
Rules. The bids shall be opened one day following the time fixed by the
Institution for the submission of bids. Thereafter, the bidder shall have
two 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 Institution until the two-hour period has elapsed. The
mistake shall be proved only from the original work papers, documents and
materials delivered as required herein.
B. The Institution may establish procedures for the
withdrawal of bids for other than construction contracts.
C. No bid shall be withdrawn under this section 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 5%.
D. If a bid is withdrawn in accordance with this
section, the lowest remaining bid shall be deemed to be the low bid.
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. If the Institution denies the withdrawal of a bid
under the provisions of this section, it shall notify the bidder in writing
stating 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.
§ 24. Contract Pricing Arrangements. –
A. Public contracts may be awarded on a fixed price
or cost reimbursement basis, or on any other basis that is not prohibited by
these Rules.
B. Except in case of emergency affecting the public
health, safety or welfare, no public contract shall be awarded on the basis of
cost plus a percentage of cost.
C. A policy or contract of insurance or prepaid
coverage having a premium computed on the basis of claims paid or incurred,
plus the insurance carrier’s administrative costs and retention stated in whole
or part as a percentage of such claims, shall not be prohibited by this
section.
§ 25. Workers' compensation requirements for
construction contractors and subcontractors. –
A. No contractor shall perform any work on a
construction project of the Institution unless he (i) has obtained, and
continues to maintain for the duration of the work, workers' compensation
coverage required pursuant to the provisions of Chapter 8 (§ 65.2-800 et seq.)
of Title 65.2 of the Code of Virginia, and (ii) provides prior to the award of
contract, on a form furnished by the Institution, evidence of such coverage.
B. The Department of General Services shall provide
the form to the Institution. Failure of the Institution to provide the
form prior to the award of contract shall waive the requirements of clause (ii)
of subsection A.
C. No subcontractor shall perform any work on a
construction project of the Institution unless he has obtained, and continues
to maintain for the duration of such work, workers' compensation coverage
required pursuant to the provisions of Chapter 8 (§ 65.2-800 et seq.) of Title
65.2 of the Code of Virginia.
§ 26. Retainage on construction contracts. –
A. In any contract issued by the Institution for
construction that provides for progress payments in installments based upon an
estimated percentage of completion, the contractor shall be paid at least 95%
of the earned sum when payment is due, with no more than 5% being retained to
ensure faithful performance of the contract. All amounts withheld may be
included in the final payment.
B. Any subcontract for a public project that provides
for similar progress payments shall be subject to the provisions of this
section.
§ 27. Public construction contract provisions barring
damages for unreasonable delays declared void. –
A. Any provision contained in any public construction
contract of the Institution that purports to 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 the delay is caused by acts or omissions of
the Institution, its agents or employees and due to causes within their control
shall be void and unenforceable as against public policy.
B. Subsection A shall not be construed to render void
any provision of a public construction contract awarded by the Institution
that:
1. Allows the recovery of that portion of delay costs
caused by the acts or omissions of the contractor, or its subcontractors,
agents or employees;
2. Requires notice of any delay by the party claiming
the delay;
3. Provides for liquidated damages for delay; or
4. Provides for arbitration or any other procedure
designed to settle contract disputes.
C. A contractor making a claim against the
Institution for costs or damages due to the alleged delaying of the contractor
in the performance of its work under any public construction contract of the
Institution shall be liable to the Institution and shall pay it for a
percentage of all costs incurred by the Institution in investigating,
analyzing, negotiating, litigating and arbitrating the claim, which percentage
shall be equal to the percentage of the contractor's total delay claim that is
determined through litigation or arbitration to be false or to have no basis in
law or in fact.
D. If the Institution denies 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 for the Institution,
it 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 Institution shall be equal to
the percentage of the contractor's total delay claim for which the
Institution's denial is determined through litigation or arbitration to have
been made in bad faith.
§ 28. Bid bonds. –
A. Except in cases of emergency, all bids or proposals
for construction contracts in excess of $1 million shall be accompanied by a
bid bond from a surety company selected by the bidder that is authorized to do
business in Virginia, as a guarantee that if the contract is awarded to the
bidder, he will enter into the contract for the work mentioned in the bid. The
amount of the bid bond shall not exceed 5% of the amount bid.
B. No forfeiture under a bid bond shall exceed the
lesser of (i) the difference between the bid for which the bond was written and
the next low bid, or (ii) the face amount of the bid bond.
C. Nothing in this section shall preclude the
Institution from requiring bid bonds to accompany bids or proposals for
construction contracts anticipated to be less than $1 million.
§ 29. Performance and payment bonds. –
A. Upon the award by the Institution of any (i)
public construction contract exceeding $1 million awarded to any prime
contractor or (ii) public construction contract exceeding $1 million 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 by the Institution, the contractor shall furnish to the Institution the
following bonds:
1. Except for transportation-related projects, 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, such bond shall be in a form and amount satisfactory to the
Institution.
2. 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.
"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.
B. 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.
C. The bonds shall be payable to the Commonwealth of Virginia naming also the Institution.
D. Each of the bonds shall be filed with the
Institution, or a designated office or official thereof.
E. Nothing in this section shall preclude the
Institution from requiring payment or performance bonds for construction
contracts below $1 million.
F. 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.
§ 30. 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 Institution’s General Counsel
or his equivalent, a bidder may furnish to the Institution 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 Institution
equivalent to a corporate surety's bond.
§ 31. Bonds on other than construction contracts. –
The Institution may require bid, payment, or performance
bonds for contracts for goods or services if provided in the Invitation to Bid
or Request for Proposal.
§ 32. Action on performance bond. –
No action against the surety on a performance bond shall be
brought by the Institution unless brought within one 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.
§ 33. Actions on payment bonds; waiver of right to
sue. –
A. Subject to the provisions of subsection B, any
claimant who has performed labor or furnished material in accordance with the
contract documents in furtherance of the work provided in any contract for
which a payment bond has been given, and who has not been paid in full before
the expiration of 90 days after the day on which the claimant performed the
last of the labor or furnished the last of the materials for which he claims
payment, may bring an action on the payment bond to recover any amount due him
for the labor or material. The obligee named in the bond need not be
named a party to the 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 180 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.
C. Any action on a payment bond shall be brought
within one year after the day on which the person bringing such action last
performed labor or last furnished or supplied materials.
D. 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.
§ 34. Public inspection of certain records. –
A. Except as provided in this section, 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.).
B. Cost estimates relating to a proposed procurement
transaction prepared by or for the Institution shall not be open to public
inspection.
C. 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 Institution 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.
D. 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 Institution decides
not to accept any of the proposals and to reopen the contract. Otherwise,
proposal records shall be open to public inspection only after award of the
contract.
E. Any inspection of procurement transaction records
under this section shall be subject to reasonable restrictions to ensure the
security and integrity of the records.
F. Trade secrets or proprietary information submitted
by a bidder, offeror or contractor in connection with a procurement transaction
or prequalification application submitted pursuant to subsection B of § 14
shall not be subject to the Virginia Freedom of Information Act (§ 2.2-3700 et
seq.); however, the bidder, offeror or contractor shall (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.
§ 35. Exemption for certain transactions. –
A. The provisions of these Rules shall not apply to:
1. The selection of services related to the
management and investment of the Institution’s endowment funds, endowment
income, or gifts pursuant to § 23-76.1. However, selection of these services
shall be governed by the Uniform Management of Institutional Funds Act (§
55-268.1 et seq.) as required by § 23-76.1.
2. The purchase of items for resale at retail
bookstores and similar retail outlets operated by the Institution. However,
such purchase procedures shall provide for competition where practicable.
3. Procurement of any construction or planning and
design services for construction by the Institution when (i) the planning,
design or construction is $50,000 or less or (ii) the Institution is obligated
to conform to procurement procedures that are established by federal statutes
or regulations, whether or not those federal procedures are in conformance with
the provisions of these Rules.
4. The University of Virginia Medical Center.
5. The purchase of goods and services by the
Institution when such purchases are made under a remedial plan established by
the Governor pursuant to subsection C of § 9 of these Rules.
B. 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 provisions of these Rules, the
Institution may comply with such federal requirements, notwithstanding the
provisions of these Rules, only upon the written determination of the
Institution’s President or his designee that acceptance of the grant or
contract funds under the applicable conditions is in the public interest.
Such determination shall state the specific provision of these Rules in
conflict with the conditions of the grant or contract.
§ 36. Permitted contracts with certain religious
organizations; purpose; limitations. –
A. The Opportunity Reconciliation Act of 1996, P.L.
104-193, authorizes public bodies to enter into contracts with faith-based
organizations for the purposes described in this section on the same basis as
any other nongovernmental source without impairing the religious character of
such organization, and without diminishing the religious freedom of the
beneficiaries of assistance provided under this section.
B. For the purposes of this section,
"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.
C. The Institution, in procuring goods or services,
or in making disbursements pursuant to this section, shall not (i) discriminate
against a faith-based organization on the basis of the organization's religious
character or (ii) impose conditions that (a) restrict the religious character
of the faith-based organization, except as provided in subsection F, or (b)
impair, diminish, or discourage the exercise of religious freedom by the
recipients of such goods, services, or disbursements.
D. The Institution shall ensure that all invitations
to bid, requests for proposals, contracts, and purchase orders prominently
display a nondiscrimination statement indicating that it does not discriminate
against faith-based organizations.
E. A faith-based organization contracting with the
Institution (i) shall not discriminate against any recipient of goods,
services, or disbursements made pursuant to a contract authorized by this
section on the basis of the recipient's religion, religious belief, refusal to
participate in a religious practice, or on the basis of race, age, color,
gender or national origin and (ii) shall be subject to the same rules as other
organizations that contract with public bodies to account for the use of the
funds provided; however, if the faith-based organization segregates public
funds into separate accounts, only the accounts and programs funded with public
funds shall be subject to audit by the Institution. Nothing in clause
(ii) shall be construed to supercede or otherwise override any other applicable
state law.
F. Consistent with the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996, P.L. 104-193, funds provided for
expenditure pursuant to contracts with public bodies shall not be spent for sectarian
worship, instruction, or proselytizing; however, this prohibition shall not
apply to expenditures pursuant to contracts, if any, for the services of
chaplains.
G. Nothing in this section shall be construed as
barring or prohibiting a faith-based organization from any opportunity to make
a bid or proposal or contract on the grounds that the faith-based organization
has exercised the right, as expressed in 42 U.S.C. (§ 2000e-1 et seq.), to
employ persons of a particular religion.
H. If an individual, who applies for or receives
goods, services, or disbursements provided pursuant to a contract between the
Institution and a faith-based organization, objects to the religious character
of the faith-based organization from which the individual receives or would
receive the goods, services, or disbursements, the Institution shall offer the
individual, within a reasonable period of time after the date of his objection,
access to equivalent goods, services, or disbursements from an alternative
provider.
The Institution shall provide to each individual who
applies for or receives goods, services, or disbursements provided pursuant to
a contract between the Institution and a faith-based organization a notice in
bold face type that states: "Neither the Institution's selection of a
charitable or faith-based provider of services nor the expenditure of funds
under this contract is an endorsement of the provider's charitable or religious
character, practices, or expression. No provider of services may discriminate
against you on the basis of religion, a religious belief, or your refusal to
actively participate in a religious practice. If you object to a particular
provider because of its religious character, you may request assignment to a
different provider. If you believe that your rights have been violated, please
discuss the complaint with your provider or notify the appropriate person as
indicated in this form."
§ 37. Exemptions from competition for certain
transactions. –
The Institution may enter into contracts without
competition, as that term is described in subsections A through J of § 5
(Methods of procurement) of these Rules, for:
1. The purchase of goods or services that are
produced or performed by or related to:
a. Persons, or in schools or workshops, under the
supervision of the Virginia Department for the Blind and Vision Impaired;
b. Nonprofit sheltered workshops or other nonprofit
organizations that offer transitional or supported employment services serving
the handicapped;
c. Private educational institutions; or
d. Other public educational institutions.
2. Speakers and performing artists;
3. Memberships and Association dues;
4. Sponsored research grant sub-awards and contract
sub-awards, not to include the purchase of goods or services by the
Institution;
5. Group travel in foreign countries;
6. Conference facilities and services;
7. Participation in intercollegiate athletic
tournaments and events including team travel and lodging, registration and
tournament fees;
8. Royalties; or
9. The purchase of legal services, provided that the
Office of the Attorney General has been consulted, or expert witnesses or other
services associated with litigation or regulatory proceedings.
§ 38. Exemptions from competitive sealed bidding and
competitive negotiation for certain transactions; limitations. –
The Institution may enter into contracts for insurance or
electric utility service without competitive sealed bidding or competitive
negotiation if purchased through an association of which the Institution 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 Institution 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.
§ 39. Definitions. –
As used in §§ 39 through 46, unless the context requires a
different meaning:
"Contractor" means the entity that has a direct
contract with the Institution.
"Debtor" means any individual, business, or group
having a delinquent debt or account with any state agency that obligation has
not been satisfied or set aside by court order or discharged in bankruptcy.
"Payment date" means either (i) the date on which
payment is due under the terms of a contract for provision of goods or
services; or (ii) if such date has not been established by contract, (a) 30
days after receipt of a proper invoice by the Institution or its agent or (b)
30 days after receipt of the goods or services by the Institution.
"Subcontractor" means any entity that has a
contract to supply labor or materials to the contractor to whom the contract
was awarded or to any subcontractor in the performance of the work provided for
in such contract.
§ 40. Exemptions. –
The provisions of §§ 39 through 46 shall not apply to the
late payment provisions contained in any public utility tariffs prescribed by
the State Corporation Commission.
§ 41. Retainage to remain valid. –
Notwithstanding the provisions of §§ 39 through 46, the
provisions of § 26 relating to retainage shall remain valid.
§ 42. Prompt payment of bills by the Institution. –
A. The Institution shall promptly pay for the
completely delivered goods or services by the required payment date.
Payment shall be deemed to have been made when offset
proceedings have been instituted, as authorized under the Virginia Debt
Collection Act (§ 2.2-4800 et seq.) of the Code of Virginia.
B. Separate payment dates may be specified for
contracts under which goods or services are provided in a series of partial
deliveries or executions to the extent that such contract provides for separate
payment for such partial delivery or execution.
§ 43. Defect or impropriety in the invoice or goods
and/or services received. –
In instances where there is a defect or impropriety in an
invoice or in the goods or services received, the Institution shall notify the
supplier of the defect or impropriety, if the defect or impropriety would
prevent payment by the payment date. The notice shall be sent within 15
days after receipt of the invoice or the goods or services.
§ 44. Date of postmark deemed to be date payment is
made. –
In those cases where payment is made by mail, the date of
postmark shall be deemed to be the date payment is made for purposes of these
Rules.
§ 45. Payment clauses to be included in contracts. –
Any contract awarded by the Institution shall include:
1. A payment clause that obligates the contractor to
take one of the two following actions within seven days after receipt of
amounts paid to the contractor by the Institution for work performed by the
subcontractor under that contract:
a. Pay the subcontractor for the proportionate share
of the total payment received from the Institution attributable to the work
performed by the subcontractor under that contract; or
b. Notify the Institution and subcontractor, in
writing, of his intention to withhold all or a part of the subcontractor's
payment with the reason for nonpayment.
2. A payment clause that requires (i) individual
contractors to provide their social security numbers and (ii) proprietorships,
partnerships, and corporations to provide their federal employer identification
numbers.
3. An interest clause that obligates the contractor
to pay interest to the subcontractor on all amounts owed by the contractor that
remain unpaid after seven days following receipt by the contractor of payment
from the Institution for work performed by the subcontractor under that
contract, except for amounts withheld as allowed in subdivision 1.
4. An interest rate clause stating, "Unless
otherwise provided under the terms of this contract, interest shall accrue at
the rate of 1% per month."
Any such contract awarded shall further require the
contractor to include in each of its subcontracts a provision requiring each
subcontractor to include or otherwise be subject to the same payment and
interest requirements with respect to each lower-tier subcontractor.
A contractor's obligation to pay an interest charge to a
subcontractor pursuant to the payment clause in this section shall not be
construed to be an obligation of the Institution. A contract modification
shall not be made for the purpose of providing reimbursement for the interest
charge. A cost reimbursement claim shall not include any amount for
reimbursement for the interest charge.
§ 46. Interest penalty; exceptions. –
A. Interest shall accrue, at the rate determined
pursuant to subsection B, on all amounts owed by the Institution to a vendor
that remain unpaid after seven days following the payment date. However,
nothing in this section shall affect any contract providing for a different
rate of interest, or for the payment of interest in a different manner.
B. The rate of interest charged the Institution
pursuant to subsection A shall be the base rate on corporate loans (prime rate)
at large United States money center commercial banks as reported daily in the
publication entitled The Wall Street Journal. Whenever a split prime rate
is published, the lower of the two rates shall be used. However, in no
event shall the rate of interest charged exceed the rate of interest
established pursuant to § 58.1-1812 of the Code of Virginia.
C. Notwithstanding subsection A, no interest penalty
shall be charged when payment is delayed because of disagreement between the
Institution and a vendor regarding the quantity, quality or time of delivery of
goods or services or the accuracy of any invoice received for the goods or services.
The exception from the interest penalty provided by this subsection shall apply
only to that portion of a delayed payment that is actually the subject of the
disagreement and shall apply only for the duration of the disagreement.
D. This section shall not apply to § 26 pertaining to
retainage on construction contracts, during the period of time prior to the
date the final payment is due. Nothing contained herein shall prevent a
contractor from receiving interest on such funds under an approved escrow
agreement.
E. Notwithstanding subsection A, no interest penalty
shall be paid to any debtor on any payment, or portion thereof, withheld
pursuant to the Comptroller's Debt Setoff Program, as authorized by the
Virginia Debt Collection Act (§ 2.2-4800 et seq. of the Code of Virginia),
commencing with the date the payment is withheld. If, as a result of an
error, a payment or portion thereof is withheld, and it is determined that at
the time of setoff no debt was owed to the Commonwealth, then interest shall
accrue at the rate determined pursuant to subsection B on amounts withheld that
remain unpaid after seven days following the payment date.
§ 47. Ineligibility. –
A. Any bidder, offeror or contractor refused
permission to participate, or disqualified from participation, in public
contracts to be issued by the Institution shall be notified in writing.
Prior to the issuance of a written determination of disqualification or
ineligibility, the Institution 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.
Within 10 business days after receipt of the notice, the
bidder may submit rebuttal information challenging the evaluation. The
Institution shall issue its written determination of disqualification or
ineligibility based on all information in the possession of the Institution,
including any rebuttal information, within five business days of the date the
Institution received such rebuttal information.
If the evaluation reveals that the bidder, offeror or
contractor should be allowed permission to participate in the public contract,
the Institution shall cancel the proposed disqualification action. If the
evaluation reveals that the bidder should be refused permission to participate,
or disqualified from participation, in the public contract, the Institution
shall so notify the bidder, offeror or contractor. The notice shall state
the basis for the determination, which shall be final unless the bidder appeals
the decision within 10 days after receipt of the notice by invoking administrative
procedures meeting the standards of § 55 of these Rules, if available, or in
the alternative by instituting legal action as provided in § 54.
B. If, upon appeal, it is determined that the action
taken was arbitrary or capricious, or not in accordance with the Constitution
of Virginia, applicable state law or regulations, the sole relief shall be
restoration of eligibility.
§ 48. Appeal of denial of withdrawal of bid. –
A. A decision denying withdrawal of bid under the
provisions of § 23 of these Rules shall be final and conclusive unless the
bidder appeals the decision within 10 days after receipt of the decision by
invoking administrative procedures meeting the standards of § 55, if available,
or in the alternative by instituting legal action as provided in § 54.
B. If no bid bond was posted, a bidder refused
withdrawal of a bid under the provisions of § 23, prior to appealing, shall
deliver to the Institution 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) 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.
§ 49. Determination of nonresponsibility. –
A. Following public opening and announcement of bids
received on an Invitation to Bid, the Institution shall evaluate the bids in
accordance with element 4 of the definition of "Competitive sealed
bidding" in § 4 of these Rules. At the same time, the Institution
shall determine whether the apparent low bidder is responsible. If the
Institution so determines, then it may proceed with an award in accordance with
element 5 of the definition of "Competitive sealed bidding" in §
4. If the Institution determines that the apparent low bidder is not
responsible, it shall proceed as follows:
1. Prior to the issuance of a written determination
of nonresponsibility, the Institution shall (i) notify the apparent low bidder
in writing of the results of the evaluation, (ii) disclose the factual support
for the determination, and (iii) allow the apparent low 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. Within 10 business days after receipt of the
notice, the bidder may submit rebuttal information challenging the
evaluation. The Institution shall issue its written determination of
responsibility based on all information in the possession of the Institution,
including any rebuttal information, within five business days of the date the
Institution received the rebuttal information. At the same time, the
Institution shall notify, with return receipt requested, the bidder in writing
of its determination.
3. Such notice shall state the basis for the
determination, which shall be final unless the bidder appeals the decision
within 10 days after receipt of the notice by invoking administrative
procedures meeting the standards of § 55 of these Rules, if available, or in
the alternative by instituting legal action as provided in § 54.
The provisions of this subsection shall not apply to
procurements involving the prequalification of bidders and the rights of any
potential bidders under such prequalification to appeal a decision that such
bidders are not responsible.
B. If, upon appeal pursuant to § 54 or 55 of these
Rules, it is determined that the decision of the Institution was not (i) an
honest exercise of discretion, but rather was arbitrary or capricious or (ii)
in accordance with the Constitution of Virginia, applicable state law or
regulation, or the terms or conditions of the Invitation to Bid, and the award
of the contract in question has not been made, the sole relief shall be a
finding that the bidder is a responsible bidder for the contract in question or
directed award as provided in subsection A of § 54, or both.
If it is determined that the decision of the Institution
was not an honest exercise of discretion, but rather was arbitrary or
capricious or not in accordance with the Constitution of Virginia, applicable
state law or regulation, or the terms or conditions of the Invitation to Bid,
and an award of the contract has been made, the relief shall be as set forth in
subsection B of § 54 of these Rules.
C. A bidder contesting a determination that he is not
a responsible bidder for a particular contract shall proceed under this
section, and may not protest the award or proposed award under the provisions
of § 50 of these Rules.
D. Nothing contained in this section shall be
construed to require the Institution, when procuring by competitive
negotiation, to furnish a statement of the reasons why a particular proposal
was not deemed to be the most advantageous.
§ 50. Protest of award or decision to award. –
A. Any bidder or offeror, who desires to protest the
award or decision to award a contract shall submit the protest in writing to
the Institution, or an official designated by the Institution, no later than 10
days after the award or the announcement of the decision to award, whichever
occurs first. Public notice of the award or the announcement of the decision to
award shall be given by the Institution in the manner prescribed in the terms
or conditions of the Invitation to Bid or Request for Proposal. 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 the protest in the same manner no later than 10 days
after posting or publication of the notice of such contract as provided in § 5
of these Rules. 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 that are subject to
inspection under § 34 of these Rules, then the time within which the protest
shall be submitted shall expire 10 days after those records are available for
inspection by such bidder or offeror under § 34, or at such later time as
provided in this section. 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 Institution or designated official shall issue a decision in
writing within 10 days stating the reasons for the action taken. This
decision shall be final unless the bidder or offeror appeals within 10 days of
receipt of the written decision by invoking administrative procedures meeting
the standards of § 55 of these Rules, if available, or in the alternative by
instituting legal action as provided in § 54. Nothing in this subsection shall
be construed to permit a bidder to challenge the validity of the terms or
conditions of the Invitation to Bid or Request for Proposal. The use of
Alternative Dispute Resolution (ADR) shall constitute an administrative appeal
procedure meeting the standards of § 55 of these Rules.
B. If prior to an 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 Institution 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 enjoined. Where the award
has been made and performance has begun, the Institution 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.
C. Where the Institution, an official designated by
it, or an appeals board determines, after a hearing held following reasonable
notice to all bidders, that there is probable cause to believe that a decision
to award was based on fraud or corruption or on an act in violation of these
Rules, the Institution, designated official or appeals board may enjoin the
award of the contract to a particular bidder.
§ 51. Effect of appeal upon contract. –
Pending final determination of a protest or appeal, the
validity of a contract awarded and accepted in good faith in accordance with
these Rules shall not be affected by the fact that a protest or appeal has been
filed.
§ 52. Stay of award during protest. –
An award need not be delayed for the period allowed a
bidder or offeror to protest, but in the event of a timely protest as provided
in § 50 of these Rules, or the filing of a timely legal action as provided in §
54, no further action to award the contract shall 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.
§ 53. Contractual disputes. –
A. Contractual claims, whether for money or other
relief, shall be submitted in writing no later than 60 days after final
payment. However, written notice of the contractor's intention to file a
claim shall be given at the time of the occurrence or beginning of the work
upon which the claim is based. Nothing herein shall preclude a contract
from requiring submission of an invoice for final payment within a certain time
after completion and acceptance of the work or acceptance of the goods.
Pendency of claims shall not delay payment of amounts agreed due in the final
payment.
B. The Institution shall include in its contracts a
procedure for consideration of contractual claims. Such procedure, which
may be contained in the contract or may be specifically incorporated into the
contract by reference and made available to the contractor, shall establish a
time limit for a final decision in writing by the Institution. If the
Institution has established administrative procedures meeting the standards of
§ 55 of these Rules, such procedures shall be contained in the contract or
specifically incorporated in the contract by reference and made available to
the contractor. The Institution may require the submission of contractual
claims pursuant to any contract to Alternative Dispute Resolution (ADR) as an
administrative procedure.
C. A contractor may not invoke administrative
procedures meeting the standards of § 55 of these Rules, if available, or
institute legal action as provided in § 54, prior to receipt of the
Institution's decision on the claim, unless the Institution fails to render
such decision within the time specified in the contract.
D. The decision of the Institution shall be final and
conclusive unless the contractor appeals within six months of the date of the
final decision on the claim by the Institution by invoking administrative
procedures meeting the standards of § 55 of these Rules, if available, or in
the alternative by instituting legal action as provided in § 54.
§ 54. Legal actions. –
A. A bidder or offeror, actual or prospective, who is
refused permission or disqualified from participation in bidding or competitive
negotiation, or who is determined not to be a responsible bidder or offeror for
a particular contract, may bring an action in the appropriate circuit court
challenging that decision, which shall be reversed only if the petitioner
establishes that the decision was not (i) an honest exercise of discretion, but
rather was arbitrary or capricious; (ii) in accordance with the Constitution of
Virginia, applicable state law or regulation, or the terms or conditions of the
Invitation to Bid; or (iii) in the case of denial of prequalification, based
upon the criteria for denial of prequalification set forth in subsection B of §
14 of these Rules. In the event the apparent low bidder, having been
previously determined by the Institution to be not responsible in accordance
with § 4, is found by the court to be a responsible bidder, the court may
direct the Institution to award the contract to such bidder in accordance with
the requirements of this section and the Invitation to Bid.
B. A bidder denied withdrawal of a bid under § 23 of
these Rules may bring an action in the appropriate circuit court challenging
that decision, which shall be reversed only if the bidder establishes that the
decision of the Institution was not (i) an honest exercise of discretion, but
rather was arbitrary or capricious or (ii) in accordance with the Constitution
of Virginia, applicable state law or regulation, or the terms or conditions of
the Invitation to Bid.
C. A bidder, offeror or contractor, or a potential
bidder or offeror on a contract negotiated on a sole source or emergency basis
in the manner provided in § 5 of these Rules, whose protest of an award or
decision to award under § 50 of these Rules is denied, may bring an action in
the appropriate circuit court challenging a proposed award or the award of a
contract, which shall be reversed only if the petitioner establishes that the
proposed award or the award is not (i) an honest exercise of discretion, but
rather is arbitrary or capricious or (ii) in accordance with the Constitution
of Virginia, applicable state law or regulation, or the terms and conditions of
the Invitation to Bid or Request for Proposal.
D. If injunctive relief is granted, the court, upon
request of the Institution, shall require the posting of reasonable security to
protect the Institution.
E. A contractor may bring an action involving a
contract dispute with the Institution in the appropriate circuit court.
Notwithstanding any other provision of law, the Comptroller shall not be named
as a defendant in any action brought pursuant to these Rules or § 33.1-387 of
the Code of Virginia, except for disputes involving contracts of the Office of
the Comptroller or the Department of Accounts.
F. A bidder, offeror or contractor need not utilize
administrative procedures meeting the standards of § 55 of these Rules, if
available, but if those procedures are invoked by the bidder, offeror or
contractor, the procedures shall be exhausted prior to instituting legal action
concerning the same procurement transaction unless the Institution agrees
otherwise.
G. Nothing herein shall be construed to prevent the
Institution from instituting legal action against a contractor.
§ 55. Administrative appeals procedure. –
A. The Institution may establish an administrative
procedure for hearing (i) protests of a decision to award or an award, (ii)
appeals from refusals to allow withdrawal of bids, (iii) appeals from
disqualifications and determinations of nonresponsibility, and (iv) appeals
from decisions on disputes arising during the performance of a contract, or (v)
any of these. Such administrative procedure may include the use of Alternative
Dispute Resolution (ADR) or shall provide for a hearing before a disinterested
person or panel, the opportunity to present pertinent information and the
issuance of a written decision containing findings of fact. The
disinterested person or panel shall not be an employee of the governmental
entity against whom the claim has been filed. The findings of fact shall
be final and conclusive and shall not be set aside unless the same are (a)
fraudulent, arbitrary or capricious; (b) so grossly erroneous as to imply bad
faith; or (c) in the case of denial of prequalification, the findings were not
based upon the criteria for denial of prequalification set forth in subsection
B of § 14 of these Rules. No determination on an issue of law shall be final
if appropriate legal action is instituted in a timely manner. The
Institution may seek advice and input from the Alternative Dispute Resolution
Council in establishing an Alternative Dispute Resolution (ADR) procedure.
B. Any party to the administrative procedure,
including the Institution, shall be entitled to institute judicial review if
such action is brought within 30 days of receipt of the written decision.
§ 56. Alternative dispute resolution. –
The Institution may enter into agreements to submit disputes
arising from contracts entered into pursuant to these Rules to arbitration and
utilize mediation and other alternative dispute resolution procedures. However,
such procedures shall be nonbinding and subject to § 2.2-514 of the Code of Virginia, as applicable.
§ 57. Ethics in public contracting. –
The Institution and its governing body, officers and
employees shall be governed by the Ethics in Public Contracting provisions of
the Virginia Public Procurement Act, Article 6 (§ 2.2-4367 et seq.) of Chapter
43 of Title 2.2 of the Code of Virginia.
EXHIBIT K
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE COLLEGE OF WILLIAM AND MARY IN VIRGINIA
AND
THE VIRGINIA INSTITUTE OF MARINE SCIENCE
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION FINANCIAL AND
ADMINISTRATIVE OPERATIONS ACT OF 2005
POLICY GOVERNING
HUMAN RESOURCES FOR
PARTICIPATING COVERED EMPLOYEES
AND OTHER COLLEGE EMPLOYEES
THE RECTOR AND VISITORS OF
THE COLLEGE OF WILLIAM AND MARY IN VIRGINIA
POLICY GOVERNING HUMAN RESOURCES FOR
PARTICIPATING COVERED EMPLOYEES
AND OTHER COLLEGE EMPLOYEES
I. PREAMBLE.
The Restructured Higher Education Financial and
Administrative Operations Act (the Act), Chapter 4.10 of Title 23 of the Code
of Virginia, establishes a process for the restructuring of institutions of
higher education of the Commonwealth of Virginia and provides that upon
becoming a Covered Institution, the College of William and Mary in Virginia
shall have responsibility and accountability for human resources management for
all College employees, defined in the Act as “Covered Employees,” who pursuant
to subsection A of § 23-38.114 of the Act, “are state employees of” the
College. Specifically, the Act provides that, as of the Effective Date of
its initial Management Agreement with the Commonwealth, all Classified
Employees shall continue to be covered by the Virginia Personnel Act, Chapter
29 (§ 2.2-2900 et seq.) of Title 2.2 of the Code of Virginia, and shall be
subject to the policies and procedures prescribed by the Virginia Department of
Human Resource Management, provided that they may subsequently elect to become
Participating Covered Employees. All Participating Covered Employees
shall: (i) be exempt from the Virginia Personnel Act, Chapter 29 (§
2.2-2900 et seq.) of Title 2.2; (ii) remain subject to the state grievance
procedure for employees subject to the Virginia Personnel Act, Chapter 30 (§
2.2-3000 et seq.) of Title 2.2, provided they were subject to the state
grievance procedure prior to that Effective Date; (iii) participate in a
compensation plan that is subject to the review and approval of the Board of
Visitors; (iv) be hired pursuant to procedures that are based on merit and
fitness; and (v) may, subject to certain specified conditions, continue to
participate in either state- or College-sponsored benefit plans as described by
the Management Agreement.
The provisions of this Policy are adopted by the Board of
Visitors to implement the Governing Law and constitute the human resources
policies to be included in any human resources system adopted by the College
for its employees.
This Policy is intended to cover the authority that may be
granted to the College pursuant to Subchapter 3 of the Act. Any other
powers and authorities granted to the College pursuant to the Appropriation
Act, or any other sections of the Code of Virginia, including other provisions
of the Act and the College's Enabling Legislation, are not affected by this
Policy.
II. DEFINITIONS.
As used in this policy, the following terms shall have the
following meanings, unless the context requires otherwise:
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 of Title 23 of the Code of Virginia.
“Board of Visitors” or “Board” means the Rector and Board
of Visitors of the College of William and Mary and the Virginia Institute of
Marine Science.
“Classified Employees” means employees who are covered by
the Virginia Personnel Act, Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2 of the
Code of Virginia, and the policies and procedures established by the Virginia
Department of Human Resource Management and who are not Participating Covered
Employees.
“College” means the College of William and Mary in
Virginia, formerly known as (State Agency 204) and the Virginia Institute of
Marine Science, formerly known as (State Agency 268).
“College employee” means a Covered Employee.
“College Human Resources System” means the human resources
system for College employees as provided for herein.
“Covered Employee” means any person who is employed by the
College on either a salaried or nonsalaried (wage) basis.
“Covered Institution” means, on and after the Effective
Date of its initial Management Agreement with the Commonwealth of Virginia, a
public institution of higher education of the Commonwealth that has entered
into a Management Agreement with the Commonwealth to be governed by the
provisions of Subchapter 3 of the Act.
“Employee” means Covered Employee unless the context
clearly indicates otherwise.
“Enabling Legislation” means those chapters, other than
Chapter 4.10, of Title 23 of the Code of Virginia, as amended, creating,
continuing, or otherwise setting forth the powers, purposes, and missions of
the College.
“Effective Date” means the effective date of the initial
Management Agreement between the College and the Commonwealth.
“Governing Law” means the Act and the College’s Enabling
Legislation.
“Management Agreement” means the agreement required by
subsection D of § 23-38.88 of the Act between the College and the Commonwealth.
“Participating Covered Employee” means (i) all salaried
nonfaculty College employees who were employed as of the day prior to the
Effective Date of the College’s initial Management Agreement with the
Commonwealth, and who elect pursuant to § 23-38.115 of the Act, to participate
in and be governed by such human resources program or programs, plans,
policies, and procedures established by the College, (ii) all salaried
nonfaculty College employees who are employed by the College on or after the
Effective Date of the initial Management Agreement between the College and the
Commonwealth, (iii) all nonsalaried nonfaculty College employees without regard
to when they were hired, (iv) all faculty College employees without regard to
when they were hired.
“Systems” means collectively the College Human Resources
System that is in effect from time to time.
III. SCOPE AND PURPOSE OF COLLEGE HUMAN RESOURCES POLICIES.
The College has had human resources system autonomy through
decentralization for its employees for some time. For example, general
faculty at the College are expressly exempt from the Virginia Personnel
Act. The College has had decentralization in most human resources
functions and activities since the late 1980s and early 1990s, including, but
not limited to, the running of payrolls; the administration of hiring,
classification, and promotion practices.
The Act extends and reinforces the human resources autonomy
previously granted to the College. This Policy therefore is adopted by
the Board of Visitors to enable the College to develop, adopt, and have in
place by or after the Effective Date of its initial Management Agreement with
the Commonwealth, a human resources system or systems for all College
employees. On that Effective Date, and until changed by the College or
unless otherwise specified in this Policy, the systems for College employees
shall be the same systems applicable to those employees in effect immediately
prior to that Effective Date.
IV. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the College shall at all times be
fully and ultimately accountable for the proper fulfillment of the duties and
responsibilities set forth in, and for the appropriate implementation of, this
Policy. Consistent with this full and ultimate accountability, however,
the Board may, pursuant to its legally permissible procedures, specifically
delegate either herein or by separate Board resolution the duties and
responsibilities set forth in this Policy to a person or persons within the
College, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the College’s usual delegation policies and procedures.
V. COLLEGE OF WILLIAM AND MARY HUMAN RESOURCES SYSTEMS.
A. Adoption and Implementation of College Human Resources
Systems.
The President is hereby authorized to adopt and implement
human resources systems for employees of the College that are consistent with
the Governing Law, other applicable provisions of law, these College human
resources policies for College employees, and any other human resources
policies adopted by the Department of Human Resource Management or the Board of
Visitors for College personnel, unless College employees are exempted from
those other human resources policies by law or policy. The College Human
Resources Systems shall include a delegation of personnel authority to
appropriate College officials responsible for overseeing and implementing the
College Human Resources Systems, including a grant of authority to such
officials to engage in further delegation of authority as the President or his
designee deems appropriate.
The College commits to regularly engage employees in
appropriate discussions and to receive employee input as the new College Human
Resources Systems are developed. The College will regularly communicate the
details of new proposals to all employees who are eligible to participate in
the College Human Resources System through written communication, open
meetings, and website postings as appropriate, so that employees will have full
information that will help them evaluate the merits of the new human resource
system compared to the then-current State human resource system.
Effective on the Effective Date of its initial Management
Agreement with the Commonwealth, and until amended as described below, the
College’s human resources systems shall consist of the following:
1. The current “College of William and Mary Faculty
Handbook,” as it is posted on the Provost’s website,
http://www.wm.edu/provost/index.php, and periodically amended; and
2. The current human resources system for Classified
Employees in the College as posted on the Virginia Department of Human Resource
Management website at http://www.dhrm.state.va.us/hrpolicy/policy.html; and
3. The human resources system for Participating Covered
Employees, which shall include nonsalaried (wage) employees, as posted on the
College Human Resources website, http://www.wm.edu/hr.html and periodically
amended.
All the systems describe above, except the system described
in paragraph 3, may be amended by the President, consistent with these human
resources policies. The system described in paragraph 3 may be amended only by
the State.
B. Training in and Compliance with Applicable Provisions of
Law and Board of Visitors’ Human Resources Policies.
The President, or designee, shall take all necessary and
reasonable steps to assure (i) that the College officials who develop,
implement and administer the College Human Resources Systems authorized by
Governing Law and these human resources policies are knowledgeable regarding
the requirements of the Governing Law, other applicable provisions of law,
these College human resources policies, and other applicable Board of Visitors'
human resources policies affecting College employees, and (ii) that compliance
with such laws and human resources policies is achieved.
VI. HUMAN RESOURCES POLICIES.
The College Human Resources Systems adopted by the College
pursuant to Governing Law and this Policy, as set forth in Section V above,
shall embody the following human resources policies and principles:
A. Election by College Salaried Nonfaculty Employees.
Upon the adoption by the College of a College Human
Resources System, each salaried nonfaculty College employee who was in the
employment of the College, as of the day prior to the Effective Date of its
initial Management Agreement with the Commonwealth shall be permitted to elect
to participate in and be governed by either (i) the State human resources
program set forth in Chapters 28 (§ 2.2-2800 et seq.) and 29
(§ 2.2-2900 et seq.) of Title 2.2 of the Code of Virginia, and
administered by the Department of Human Resource Management, or (ii) the
College Human Resources System, as appropriate. A salaried nonfaculty College employee who elects to continue to be governed by the State human
resources program described above shall continue to be governed by all State
human resources and benefit plans, programs, policies and procedures that apply
to and govern State employees. A salaried nonfaculty College employee who
elects to participate in and be governed by the College Human Resources
System, by that election, shall be deemed to have elected to be eligible
to participate in and to be governed by the College human resources program,
authorized alternative insurance, and severance plans, programs, policies and
procedures that are or may be adopted by the College as part of that College Human
Resources System.
The College shall provide each of its salaried nonfaculty
College employees who was in the employment of the College as of the day prior
to the Effective Date of the College’s initial Management Agreement with the
Commonwealth at least 90 days after the date on which the College Human
Resources System becomes effective for that College employee’s classification
of employees to make the election required by the prior paragraph. If
such a salaried nonfaculty College employee does not make an election by the
end of that specified election period, that College employee shall be deemed
not to have elected to participate in the College Human Resources System.
If such a salaried nonfaculty College employee elects to participate in the
College Human Resources System, that election shall be irrevocable. At
least every two years, the College shall offer to salaried nonfaculty College
employees who have elected to continue to participate in the state human
resources program set forth in Chapters 28 (§ 22.-2800 et seq.) and 29 (§
2.2-2900 et seq.) of Title 2.2 of the Code of Virginia, an opportunity to
elect to participate in the College Human Resources System, provided that, each
time prior to offering such opportunity to such salaried nonfaculty College
employees, and at least once every two years after the effective date of
the College Human Resources System, the College shall make available to
each of its salaried nonfaculty College employees a comparison of its human
resources program for that classification of salaried nonfaculty College
employee with the State human resources program for comparable State employees,
including but not limited to a comparability assessment of compensation and
benefits. A copy of the human resources program comparison shall be provided to
the Department of Human Resource Management.
B. Classification and Compensation.
General. The Systems shall include classification and
compensation plans that are fair and reasonable, and are based on the
availability of College financial resources. The plans adopted by the
College Participating Covered Employees shall be independent of, and need not
be based on, the classification and compensation plans of the Commonwealth, do
not require the approval of any State agency or officer, and shall be subject
to the review and approval by the Board of Visitors as set forth in paragraph 3
below. The College shall provide information on its classification and
compensation plans to all College employees. The plans applicable to Participating
Covered Employees may or may not include changes in classification or
compensation announced by the Commonwealth depending on such factors as the
availability of necessary financial resources to fund any such changes, and
subject to the review and approval by the Board of Visitors of any major
changes in the College’s compensation plans.
Classification Plan. The Systems shall include one or
more classification plans for College employees that classify positions
according to job responsibilities and qualifications. On the Effective
Date of the College’s initial Management Agreement with the Commonwealth, and
until changed by the College, the classification plans shall be the same plans
that are in effect for each group of employees immediately prior to that
Effective Date.
Compensation Plan. The Systems shall include one or
more compensation plans for each College employee classification or
group. On the Effective Date of the College’s initial Management
Agreement with the Commonwealth, and until changed by the Department of Human
Resource Management, the compensation plan for Classified Employees in the
College shall be the compensation plan in effect immediately prior to that
Effective Date, known as the Commonwealth’s Classified Compensation Plan.
On that Effective Date, and until changed by the College, the compensation plan
or plans for all Participating Covered Employees shall be the compensation plan
or plans in effect immediately prior to that Effective Date. The College
may adopt one or more compensation plans for Participating Covered Employees
that are non-graded plan(s) based on internal and external market data and
other relevant factors to be determined annually. Any major change in
compensation plans for Participating Covered Employees shall be reviewed and
approved by the Board of Visitors before that change becomes effective.
Any change recommended in the compensation plans may take into account the
prevailing rates in the labor market for the jobs in question, or for similar
positions, the relative value of jobs, the competency and skills of the
individual employee, internal equity, and the availability of necessary
financial resources to fund the proposed change. The compensation payable
to College employees shall be authorized and approved only by designated
College officers delegated such authority by the College, and shall be
consistent with the approved compensation plan for the relevant position or
classification. Further approval by any other State Agency, governmental
body or officer is not required for setting, adjusting or approving the
compensation payable to individual Participating Covered Employees.
Wages. The Systems shall include policies and
procedures for the authorization, computation and payment of wages, where
appropriate, for such premium pays as overtime, shift differential, on call,
and call back, and for the payment of hourly employees.
Payment of Compensation. The Systems shall include
policies and procedures for paying compensation to employees, including the
establishment of one or more payday schedules.
Work Schedule and Workweek. The Systems shall include
policies and procedures for the establishment of, and modifications to, work
schedules and workweeks for all College employees, including alternative work
schedules and sites, and telecommuting policies and procedures.
Other Classification and Compensation Policies and
Procedures. The Systems may include any other reasonable classification
and compensation policies and procedures the President deems appropriate.
C. Benefits.
The Systems shall provide fringe benefits to all benefits
eligible employees, including retirement benefits, health care insurance, life,
disability, and accidental death and dismemberment insurance. The
benefits provided shall include a basic plan of benefits for each benefits
eligible employee, and may include an optional benefits plan for benefits
eligible employees, including additional insurance coverage, long-term care,
tax deferred annuities, flexible reimbursement accounts, employee assistance
programs, employee intramural and recreational passes, and other wellness
programs. As provided in § 23-38.119 B and C of the Act, the College may
require Participating Covered Employees to pay all or a portion of the cost of
group life, disability and accidental death and dismemberment insurance, which
may be collected through a payroll deduction program. Participating
Covered Employees shall not be required to present evidence of insurability for
basic group life insurance coverage. The Board of Visitors may elect to provide
benefits through Virginia Retirement System group insurance programs under the
terms of and to the extent allowed by § 23-38.119 B and D of the Act or any
other provision of law.
Notwithstanding the above, pursuant to subsection A of §
23-38.114 of the Act, and unless and until that section is amended, the state
retirement system, state health insurance program, and state workers’
compensation coverage program as they may be amended from time to time, shall continue
to apply to and govern all eligible College employees.
The Systems may provide different benefits plans for
reasonably different groups or classifications of employees, and may provide
benefits to part-time employees. On the Effective Date of the College’s
initial Management Agreement with the Commonwealth, and until changed by the
appropriate governing authority, the benefits plans provided by the College to
Classified Employees and Participating Covered Employees shall be the benefits
plans provided to that group or classification as of the date immediately prior
to that Effective Date. On or after that Effective Date, alternative
College group life, accidental death and dismemberment, and short- and
long-term disability plans may be provided to eligible Participating Covered
Employees, or at the election of the Board of Visitors and subject to the
execution of participation agreements as provided in subsections B and C of §
23-38.119 of the Act, they may be provided by the appropriate State programs,
but no contributions to the state programs by the College shall be required for
Participating Covered Employees who do not participate in the programs. Subject
to the provisions of the Act, any new plans, programs and material changes
permitted under current law in College employee benefit plans, other than
Classified Employee benefit plans, shall be approved by the Board of Visitors,
including the authority to increase the Cash Match Contribution rate up to the
limit permitted by the Code of Virginia based on available resources, and the
authority to implement cafeteria-style benefits for College employees other
than Classified Employees.
Insurance and all proceeds therefrom provided pursuant to §
23-38.119 of the Act shall be exempt from legal process and may be subject to
voluntary assignment as provided in subsection A of § 23-38.119.
D. Employee Relations.
1. General. The Systems shall contain provisions that
protect the rights and privileges of College employees consistent with sound
management principles and fair employment practice law.
2. Employee Safety and Health. The Systems shall
contain provisions that promote workplace safety compliance with applicable law
and regulations.
3. Employee Work Environment. The Systems shall
promote a work environment that is conducive to the performance of job duties,
and free from intimidation or coercion in violation of State or federal law,
including sexual harassment or other discrimination.
4. Employee Recognition. The Systems may provide for
the use of leave awards and bonuses specific to policies and procedures for
awarding, honoring, or otherwise recognizing College employees, including but
not limited to those who have performed particularly meritorious service for
the College, have been employed by the College for specified periods of time,
or have retired from the College after lengthy service.
5. Counseling Services. The Systems shall provide
counseling services through the State’s Employee Assistance Program or a
College Employee Assistance Program to any eligible College employee
experiencing job-related difficulties and seeking counseling for those
difficulties, and shall establish the circumstances under which the time
necessary to participate in such counseling may be granted.
6. Unemployment Compensation. The Systems shall
ensure that College employees receive the full unemployment compensation
benefits to which they are legally entitled, and that the College's liability
is limited to legitimate claims for such benefits.
7. Workers’ Compensation. The Systems shall ensure
that College employees have workers’ compensation benefits to which they are
legally entitled pursuant to the State Employees Workers’ Compensation Program
administered by the Department of Human Resource Management.
8. Performance Planning and Evaluation. The Systems
shall include one or more performance planning and evaluation processes for
College employees that (i) establish and communicate the College's performance
expectations, (ii) help develop productive working relationships, (iii) allow
employees to present their views concerning their performance, (iv) identify
areas for training or professional development, (v) establish the process by
which evaluations shall be conducted, (vi) clarify how superlative or inadequate
performance shall be addressed, and (vii) ensure that all College employees are
provided relevant information on the evaluation process. The Systems may
include separate performance and evaluation processes for reasonably
distinguishable groups of College employees. On the Effective Date of the
College’s initial Management Agreement with the Commonwealth, the existing
merit-based performance management system for faculty shall continue, until
amended by the College. On or after that Effective Date, College
nonfaculty salaried Participating Covered Employees may be subject to a
variable merit-based performance management system.
9. Standards of Conduct and Performance. In order to
protect the well-being and rights of all employees and to ensure safe,
efficient College operations and compliance with the law, the Systems shall
establish rules of personal conduct and standards of acceptable work
performance for College salaried nonfaculty employees and policies for
corrective discipline. In general, the policies for corrective discipline shall
serve to (i) establish a uniform and objective process for correcting or
disciplining unacceptable conduct or work performance, (ii) distinguish between
less serious and more serious actions of misconduct and provide corrective
action accordingly, and (iii) limit corrective action to employee conduct
occurring only when employees are at work or are otherwise representing the
College in an official or work-related capacity, unless otherwise specifically
provided by the policies of the Systems or other applicable law. The
Systems may provide for a probationary period for new and re-employed College
salaried nonfaculty employees, during which period the policies for corrective
discipline shall not be applicable and the employee may not use the grievance
procedure set forth in the next paragraph. The Systems may include
separate rules of personal conduct and standards of acceptable work performance
and policies for corrective discipline for reasonably distinguishable groups of
College employees.
10. Grievance Procedure. As provided in the Governing
Law, employees shall be encouraged to resolve employment-related problems and
complaints informally, and shall be permitted to discuss their concerns freely
and without fear of retaliation with immediate supervisors and
management. In the event that such problems cannot be resolved
informally, all salaried nonfaculty College employees, regardless of their date
of hire, shall have access, as provided in subsection A of § 23-38.114 and in §
23-38.117 of the Act, to the State Grievance Procedure, Chapter 30 (§ 2.2-3000
et seq.) of Title 2.2 of the Code of Virginia, to the extent it was applicable
to their classification of employees prior to the Effective Date of the
College’s initial Management Agreement with the Commonwealth. On that
Effective Date, and until changed by the College, the faculty grievance
procedures in effect immediately prior to the Effective Date shall continue.
11. Discrimination Complaints. If a Classified
Employee believes discrimination has occurred, the Classified Employee may file
a complaint with the Department of Human Resource Management Office of Equal
Employment Services. All Covered Employees and applicants for employment
after the Effective Date of the College’s initial Management Agreement with the
Commonwealth shall file a complaint with the appropriate College office or with
the appropriate federal agencies.
12. Layoff Policy. The Systems shall include one or
more layoff policies for salaried College employees who lose their jobs for
reasons other than their job performance or conduct, such as a reduction in
force or reorganization at the College. These College layoff policies
shall govern such issues as (i) whether there is a need to effect a layoff,
(ii) actions to be taken prior to a layoff, (iii) notice to employees
affected by a layoff, (iv) placement options within the College or its
respective major divisions and within other parts of the College, (v) the
preferential employment rights, if any, of various College employees, (vi) the
effect of layoff on leave and service, and (vii) the policy for recalling
employees. In accordance with the terms of the Act, College employees
who: (i) were employed prior to the Effective Date of the College’s initial
Management Agreement with the Commonwealth, (ii) would otherwise be eligible
for severance benefits under the Workforce Transition Act, (iii) were covered
by the Virginia Personnel Act prior to that Effective Date, and (iv) are
separated because of a reduction in force shall have the same preferential
hiring rights with State agencies and other executive branch institutions as
Classified Employees have under § 2.2-3201 of the Code of Virginia.
Conversely, the College shall recognize the hiring preference conferred by §
2.2-3201 on State employees who were hired by a State agency or executive
branch institution before the Effective Date of the College’s initial
Management Agreement with the Commonwealth and who were separated after that
date by that State agency or executive branch institution because of a
reduction in workforce. If the College has adopted a classification
system pursuant to § 23-38.116 of the Act that differs from the classification
system administered by the Department of Human Resource Management, the College
shall classify the separated employee according to its classification system
and shall place the separated employee appropriately. The College may
include separate policies for reasonably distinguishable groups of College
employees. On or after the Effective Date of the College’s initial
Management Agreement with the Commonwealth, all employees from other State
agencies and executive branch institutions who are placed by the College under
the provisions of the State Layoff Policy shall be Participating Covered
Employees.
13. Severance Benefits. In accordance with the terms
of the Act, the College shall adopt severance policies for salaried
Participating Covered Employees who are involuntarily separated for reasons
unrelated to performance or conduct. The terms and conditions of such
policies shall be determined by the Board of Visitors. Classified
Employees who otherwise would be eligible and were employed prior to the
Effective Date of the College’s initial Management Agreement with the
Commonwealth shall be covered by the Workforce Transition Act, Chapter 32 (§
2.2-3200 et seq.) of Title 2.2 of the Code of Virginia. The College and
the Board of the Virginia Retirement System may negotiate a formula according
to which cash severance benefits may be converted to years of age or creditable
service for Participating Covered Employees who participate in the Virginia Retirement System. An employee’s becoming, on the Effective Date, a Covered
Employee shall not constitute a severance or reduction in force to which
severance or Workforce Transition Act policies would apply.
14. Use of Alcohol and Other Drugs. The Systems shall
include policies and procedures that (i) establish and maintain a work
environment at the College that is free from the adverse effect of alcohol and
other drugs, (ii) are consistent with the federal Drug-Free Workplace Act of
1988 and with the College of William and Mary Alcohol and Other Drugs Policy,
(iii) describe the range of authorized disciplinary action, including
termination where appropriate, for violations of such policies and procedures,
and the process to be followed in taking such disciplinary action, (iv) provide
College employees access to assistance and treatment for problems involving alcohol
and other drugs, (v) provide for the circumstances under which employees are
required to report certain violations of the policies and procedures to their
supervisor, and the College is required to report those violations to a federal
contracting or granting agency, (vi) describe the circumstances under which
personnel records of actions taken under the College’s alcohol and other drugs
policy shall not be kept confidential, and (vii) provide notice to College
employees of the scope and content of the College alcohol and other drugs
policy. As part of this alcohol and other drugs policy, and in compliance
with the federal Omnibus Transportation Employee Testing Act of 1991, the
Systems may provide for pre-employment, reasonable suspicion, random, post-accident,
return-to-duty and follow-up alcohol and other drug testing for College
positions that are particularly safety sensitive, such as those requiring a
Commercial Driver’s License.
15. Background Checks. The Systems shall include a
process for conducting background checks, which may include but is not limited
to reference checks, educational/ professional credentialing checks, and
conviction and driver’s records checks on applicants for full-time or part-time
positions at the College, and for addressing situations where employees do not
disclose a conviction on their application or otherwise falsify their
application with regard to information concerning their education/professional
credential and/or prior convictions.
16. Other Employee Relations Policies and Procedures.
The Systems shall include any other reasonable employee relations policies or
procedures that the President deems appropriate, which may include, but are not
limited to, policies or procedures relating to orientation programs for new or
re-employed College employees, an employee suggestion program, the
responsibility of College employees for property placed in their charge, work
breaks, inclement weather and emergencies, and employment outside the College.
E. Leave and Release Time.
The Systems shall include policies and procedures regarding
leave for eligible employees. The Systems shall provide reasonable paid
leave for purposes such as holidays, vacation, or other personal uses.
The Systems may provide for release time for such matters as the donation of
blood, participation in an employee assistance program and other appropriate
employment-related matters. On or after the Effective Date of its initial
Management Agreement with the Commonwealth, and until a new program is adopted
by the appropriate authority, the College shall continue to provide leave and
release time to Participating Covered Employees in accordance with the leave
and release time policies and procedures applicable to each classification of
employees prior to that Effective Date. On or after that Effective Date,
the College may provide an alternative leave and release time system for
salaried nonfaculty Participating Covered Employees.
F. Equal Employment Opportunity, Nondiscrimination,
Employment, and Separation.
1. Equal Employment Opportunity and
Nondiscrimination. The Systems shall contain policies and procedures to
ensure that all aspects of human resources management, including the employment
of College employees, meet all requirements of federal and state law, and of
the relevant policies of the Board of Visitors, with regard to equal employment
opportunity and nondiscrimination.
Employment. The Systems shall include policies and
procedures for the recruitment, selection and hiring of College employees that
are based on merit and fitness, including where appropriate a requirement for
job posting, interviews, pre-employment testing, pre-employment drug testing,
reference checks and conviction record checks. On and after the Effective
Date of its initial Management Agreement with the Commonwealth, the College
shall post all salaried nonfaculty position vacancies through the College’s job
posting system, the Commonwealth’s job posting system, and other external media
as appropriate. The Systems shall establish designated veterans'
re-employment rights in accordance with applicable law.
In order to encourage employees to attain the highest level
positions for which they are qualified, and to compensate employees for
accepting positions of increased value and responsibility, the Systems shall
include policies and procedures governing the promotion of employees, including
the effect of promotion on an employee's compensation.
On or after the Effective Date of the College’s initial
Management Agreement with the Commonwealth, all employees hired from other
state agencies shall be Participating Covered Employees. College
Classified Employees who change jobs within the College through a competitive
employment process – i.e., promotion or transfer – shall have the choice of
remaining a Classified Employee or becoming a Participating Covered
Employee. If a Classified Employee elects to become a Participating
Covered Employee, that decision shall be irrevocable.
Notice of Separation. The Systems shall include
policies and procedures requiring reasonable notice, where appropriate, of a
decision either by the employee or by the College to separate the employee from
the College in accordance with policies governing performance, conduct, or
layoff.
G. Information Systems.
The College shall provide an electronic file transfer of
information on all salaried College employees and shall continue to provide the
Employee Position Reports to meet the human resources reporting requirements
specified by law or by request of the Governor or the General Assembly, unless
the College is specifically exempted from those requirements. The College
shall conduct assessments to demonstrate its accountability for human resources
practices that comply with laws and regulations. The Department of Human
Resource Management and the College have entered into a Memorandum of
Understanding, attached hereto as Attachment 2, which may be amended from time
to time by agreement of the parties, regarding the specific data and reporting
requirements. The College shall be accountable for ensuring the
timeliness and integrity of the data transmitted to the Department of Human
Resources Management.
VII. CONTINUED APPLICABILITY OF OTHER PROVISIONS OF THE
CODE OF VIRGINIA AND OTHER BOARD OF VISITORS’ POLICIES AFFECTING COLLEGE
PERSONNEL.
On and after the Effective Date of its initial Management
Agreement with the Commonwealth, College employees shall be subject to the
terms and conditions of the Act and the Management Agreement between the
Commonwealth and the College. Classified Employees shall continue to be
subject to the human resources policies and exceptions to those policies
adopted or approved by the Department of Human Resource Management.
In addition, all College employees also shall remain
subject to any other human resources policies adopted by the Board of Visitors
applicable to College personnel unless College employees or a subset thereof
are specifically exempted from those other human resources policies either by
those other policies or by this Policy.
ATTACHMENT 2
Memorandum of Understanding
Between The College of William and Mary and the
Department of Human Resources Management Regarding
The Reporting of Human Resources Management Data
This Memorandum of Understanding, which may be amended from
time to time by the agreement of all parties, is an attachment to the Policy
Governing Human Resources for Participating Covered Employees and Other College
Employees pursuant to the Restructured Higher Education Financial and
Administrative Operations Act of 2005, and is hereby entered into between the
College of William and Mary and the Department of Human Resource Management
(DHRM).
I. This document outlines the provisions for information
management pertaining to human resources data, consistent with the objectives
to enable DHRM to meet the Commonwealth’s reporting requirements, to ensure
compliance with relevant federal and state laws and regulations, and to do so
through efficient and cost-effective methods.
1. In lieu of data entry into the state’s Personnel
Management Information System (PMIS), data will be transmitted through an
electronic file transfer to update DHRM’s warehouse.
a. The College will provide a flat file of designated
personnel data. For “Classified Employees,” the data provided will match
DHRM’s data values for the designated fields. For salaried “Participating
Covered Employees,” the data provided will include the University’s data values
for the designated fields. The College will provide a data dictionary to
DHRM. The file of designated data will be specifically described by an
addendum to this Memorandum upon the agreement of the University and DHRM.
b. The College will provide a second flat file of salaried
personnel actions for “Classified Employees” and salaried “Participating
Covered Employees,” such as promotions, separations, and salary
adjustments. The file of relevant personnel actions and designated data
to be provided for each action will be specifically described by an addendum to
this Memorandum upon the agreement of the University and DHRM.
2. DHRM will accept the federal Affirmative Action Plan
(AAP), including the adverse impact analyses of employment and compensation
actions that are part of the AAP, as demonstration of the College’s compliance
with relevant federal and state employment laws and regulations.
3. The College may key data into the Benefits Enrollment
System or provide a batch file, or employees may use Employee Direct (employee
self-service).
4. Other reports to be provided by the College include the
following:
a. Monthly Employment Position Report.
b. Annual report on salaried, wage, and contract employees.
The undersigned hereby agree to the provisions contained in
the MOU.
APPROVALS:
The College of William and Mary:
By: ..............................................................................Date.......................................
Vice President for Administration
Department of Human Resources Management:
By:
..............................................................................Date.......................................
Director, Department of Human Resources Management
EXHIBIT L
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE COLLEGE OF WILLIAM AND MARY
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING
FINANCIAL OPERATIONS AND MANAGEMENT
THE RECTOR AND BOARD OF VISITORS
OF THE COLLEGE OF WILLIAM AND MARY
POLICY GOVERNING FINANCIAL OPERATIONS AND MANAGEMENT
I. PREAMBLE.
The Restructured Higher Education Financial and
Administrative Operations Act (the Act), Chapter 4.10 (§ 23-38.88 et seq.) of
Title 23 of the Code of Virginia, establishes by law a process for granting
additional authority to institutions of higher education for financial
operations and management, subject to the adoption of policies by their
governing boards and the approval of management agreements to be negotiated
with the Commonwealth.
The following provisions of this Policy constitute the
adopted Board of Visitors policies regarding the College of William and Mary’s financial operations and management.
This Policy is intended to cover the authority that may be
granted to the College pursuant to Subchapter 3 of the Act. Any other
powers and authorities granted to the College pursuant to the Appropriation
Act, or any other sections of the Code of Virginia, including other provisions
of the Act and the College’s Enabling Legislation, are not affected by this
Policy.
II. DEFINITIONS.
As used in this policy, the following terms shall have the
following meanings, unless the context requires otherwise:
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of
the Code of Virginia.
“Board of Visitors” or “Board” means the Rector and Board
of Visitors of the College of William and Mary and the Virginia Institute of
Marine Science.
“College” means the College of William and Mary (State
Agency 204) and the Virginia Institute of Marine Science (State Agency 268).
“Covered Institution” means, on or after the Effective Date
of its initial Management Agreement with the Commonwealth of Virginia, a public
institution of higher education of the Commonwealth that has entered into a
Management Agreement with the Commonwealth to be governed by the provisions of
Subchapter 3 of the Act.
“Enabling Legislation” means those chapters, other than
Chapter 4.10, of title 23 of the Code of Virginia, as amended, creating,
continuing, or otherwise setting forth the powers, purposes, and missions of
the College.
“Effective Date” means the effective date of the initial
Management Agreement between the College and the Commonwealth.
“Management Agreement” means the agreement required by
subsection D of § 23-38.88 of the Act between the College and the Commonwealth of Virginia.
“State Tax Supported Debt” means bonds, notes or other
obligations issued under Article X, Section 9(a), 9(b), or 9(c), or 9(d), if
the debt service payments are made or ultimately are to be made from general
government funds, as defined in the December 20, 2004 Report to the Governor
and General Assembly of the Debt Capacity Advisory Committee or as that
definition is amended from time to time.
III. SCOPE OF POLICY.
This Policy applies to the College’s responsibility for
management, investment and stewardship of all its financial resources,
including but not limited to, general, non-general and private funds.
This responsibility includes maintaining an independent uniform system of
accounting, financial reporting, and internal controls adequate to protect and
account for the College’s financial resources.
The Virginia Institute of Marine Science (the Institute)
shall receive the benefits of this Policy as it is implemented by the College
on behalf of the Institute, but the Institute shall not receive any additional
independent financial operations and management authority as a result of this
Management Agreement beyond the independent financial operations and management
authority that it had prior to the Effective Date of the College’s initial
Management Agreement with the Commonwealth or that it may be granted by law in
the future.
IV. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the College shall at all times be
fully and ultimately accountable for the proper fulfillment of the duties and
responsibilities set forth in, and for the appropriate implementation of, this
Policy. Consistent with this full and ultimate accountability, however,
the Board may, pursuant to its legally permissible procedures, specifically
delegate either herein or by separate Board resolution the duties and
responsibilities set forth in this Policy to a person or persons within the
College, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the College’s usual delegation policies and
procedures.
V. FINANCIAL MANAGEMENT AND REPORTING SYSTEM.
The President, or designee, shall continue to be authorized
by the Board to maintain existing and implement new policies governing the
management of College financial resources. These policies shall continue
to (i) ensure compliance with Generally Accepted Accounting Principles, (ii)
ensure consistency with the current accounting principles employed by the
Commonwealth, including the use of fund accounting principles, with regard to
the establishment of the underlying accounting records of the College and the
allocation and utilization of resources within the accounting system, including
the relevant guidance provided by the State Council of Higher Education for
Virginia chart of accounts with regard to the allocation and proper use of
funds from specific types of fund sources, (iii) provide adequate risk
management and internal controls to protect and safeguard all financial
resources, including moneys transferred to the College pursuant to a general
fund appropriation, and ensure compliance with the requirements of the Appropriation
Act.
The financial management system shall continue to include a
financial reporting system to satisfy both the requirements for inclusion into
the Commonwealth’s Comprehensive Annual Financial Report, as specified in the
related State Comptroller’s Directives, and the College’s separately audited
financial statements. To ensure observance of limitations and
restrictions placed on the use of the resources available to the College, the
accounting and bookkeeping system of the College shall continue to be
maintained in accordance with the principles prescribed for governmental
organizations by the Governmental Accounting Standards Board.
In addition, the financial management system shall continue
to provide financial reporting for the President, or designee, and the Board of
Visitors to enable them to provide adequate oversight of the financial
operations of the College. Upon the Effective Date of the initial
Management Agreement between the College and the Commonwealth, except for the
recordation of daily revenue deposits of State funds as specified in Section
VII below, the College shall not be required to record its financial
transactions in of the Commonwealth’s Accounting and Reporting System (“CARS”),
including the current monthly interfacing with CARS , or be a part of any
subsequent Commonwealth financial systems that replace CARS or are in addition
to CARS, but shall have its own financial reporting system. The College’s
financial reporting system shall provide (i) summary monthly reports for State
agencies including, but not limited to, the Department of Accounts, the
Department of Planning and Budget, the Joint Legislative Audit and Review
Commission, the Auditor of Public Accounts, and the State Council of Higher
Education for Virginia, and for the Chairmen of the Senate Committee on Finance
and the House Committee on Appropriations at a sufficient level of detail, on
such schedule, and using such format that is compatible with the Commonwealth’s
accounting system, as may be requested by the requesting State agency, and (ii)
such other special reports as may be requested from time to time.
VI. FINANCIAL MANAGEMENT POLICIES.
The President, or designee, shall create and implement any
and all financial management policies necessary to establish a financial
management system with adequate risk management and internal control processes
and procedures for the effective protection and management of all College
financial resources. Such policies will not address the underlying accounting
principles and policies employed by the Commonwealth and the College, but
rather will focus on the internal operations of the College's financial
management. These policies shall include, but need not be limited to, the
development of a tailored set of finance and accounting practices that seek to
support the College's specific business and administrative operating
environment in order to improve the efficiency and effectiveness of its
business and administrative functions. In general, the system of independent
financial management policies shall be guided by the general principles
contained in the Commonwealth’s Accounting Policies and Procedures such as
establishing strong risk management and internal accounting controls to ensure
College financial resources are properly safeguarded and that appropriate
stewardship of public funds is obtained through management’s oversight of the
effective and efficient use of such funds in the performance of College
programs.
Upon the Effective Date of its initial Management Agreement
with the Commonwealth, the College shall continue to follow the Commonwealth’s
accounting policies until such time as specific alternate policies can be
developed, approved and implemented. Such alternate policies shall
include applicable accountability measures and shall be submitted to the State
Comptroller for review and comment before they are implemented by the College.
VII. FINANCIAL RESOURCE RETENTION AND MANAGEMENT.
Under § 23-38.104(A)(i) of the Act, subject to applicable
accountability measures and audits, the College shall have the power and
authority to manage all monies received by it. All State general funds to
be allocated to the College shall remain subject to the appropriations process.
Pursuant to subsection C of § 23-9.6:1.01 of the Code of Virginia,
the State Council of Higher Education for Virginia (SCHEV) annually shall
assess and certify to the Governor and General Assembly the degree to which
each public institution of higher education of the Commonwealth has met the
financial and administrative management and educational-related performance
benchmarks called for by that subsection and approved as part of the
Appropriation Act then in effect for the State goals and objectives set forth
in subdivisions B 1 through B 11 of § 23-38.88 of the Act. Pursuant to §
2.2-5005 of the Code of Virginia, beginning with the fiscal year that
immediately follows the first full fiscal year for which the financial and
administrative management and educational-related performance benchmarks
described in § 23-9.6:1.01 are effective, as provided in a general
Appropriation Act, and for all fiscal years thereafter, each public institution
of higher education of the Commonwealth that (i) has been certified during the
fiscal year by SCHEV as having met such institutional performance benchmarks
and (ii) meets the conditions prescribed in subsection B of § 23-38.88, shall
receive certain financial incentives, including interest on the tuition and
fees and other non-general fund Education and General Revenues deposited into
the State Treasury by the public institution of higher education.
Consistent with the prior paragraph, beginning with the
fiscal year following the first fiscal year for which it has received such
certification from SCHEV, the College is authorized to hold and invest tuition,
Educational and General (E&G) fees, research and sponsored program funds,
auxiliary enterprise funds, and all other non-general fund revenues subject to
the following requirements:
i) The College shall deposit such funds in the State
Treasury pursuant to the State process in place at the time of such deposit;
ii) Such non-general funds deposited in the State
Treasury shall be disbursed as provided in Section IX below;
iii) The College shall remit to the State Comptroller
quarterly and the State Comptroller shall hold in escrow all interest earned on
the College's tuition and fees and other non-general fund Educational and
General Revenues. Upon receipt of the required State Council of Higher
Education for Virginia certification that the College has met such
institutional performance benchmarks and the conditions prescribed in
subsection B of § 23-38.88, the Governor shall include in the next budget bill
a non-general fund appropriation, payable no later than July 1 of the immediately
following fiscal year, equivalent to the amount deposited in the escrow account
as the financial incentive provided in subdivision 1 of § 2.2-5005, after which
time the College may expend the funds for purposes related to its mission. If
public institutions of higher education of the Commonwealth are permitted, or
the College in particular is permitted, by the Appropriation Act or other law
to retain or be paid the interest the Commonwealth would have earned on
sponsored programs and research funds, then this paragraph shall not apply to
such interest on such funds, and such interest shall not be held in escrow.
iv) If in any given year the College does not receive the
certification from the State Council of Higher Education for Virginia that it
has met for that year the institutional benchmarks called for by subsection C
of § 23-9.6:1.01 and approved in the then-current Appropriation Act, the
Comptroller shall transfer to the general fund the balance in the escrow
account as of June 30 of that year.
v) Beginning on the effective date of its initial
Management Agreement with the College until the beginning of the first fiscal
year following the fiscal year for which it has received the required
certification from SCHEV, the College shall continue to deposit tuition and all
other non-general funds with the State Treasurer by the same process that it
would have been required to use if it had not entered into a Management
Agreement with the Commonwealth.
vi) On the first business day of the first fiscal
year following the fiscal year for which it has received the required
certification from SCHEV, the College may draw down all cash balances held by
the State Treasurer on behalf of the College related to tuition, E&G fees,
research and sponsored programs, auxiliary enterprises, and all other
non-general fund revenues.
vii) The Commonwealth shall retain all funds related
to general fund appropriations, but shall pay these funds to the College as
specified in Section IX below.
The College also shall have sum sufficient appropriation
authority for all non-general funds as approved by the Governor and the General
Assembly in the Commonwealth’s biennial appropriations process, and shall
report to the Department of Planning and Budget (i) its estimate of the
non-general fund revenues for the sum sufficient appropriation to be included
in the biennial Budget Bill for each of the two years in the next biennium by
November 1 of each odd numbered year and the estimate to be included in the
Budget Bill for the first and second year of the then-current biennium by
November 1 of each even numbered year, and (ii) report its actual non-general
fund revenues for each fiscal year to the Department of Planning and Budget by
July 31 of the subsequent fiscal year.
The Board of Visitors shall retain the authority to
establish tuition, fee, room, board, and other charges, with appropriate
commitment provided to need-based grant aid for middle- and lower-income
undergraduate Virginians. Except as provided otherwise in the Appropriation
Act then in effect, it is the intent of the Commonwealth and the College that
the College shall be exempt from the revenue restrictions in the general
provisions of the Appropriation Act related to non-general funds. In
addition, unless prohibited by the Appropriation Act then in effect, it is the
intent of the Commonwealth and the College that the College shall be entitled
to retain non-general fund savings generated from changes in Commonwealth rates
and charges, including but not limited to health, life, and disability
insurance rates, retirement contribution rates, telecommunications charges, and
utility rates, rather than reverting such savings back to the
Commonwealth. This financial resource policy assists the College by
providing the framework for retaining and managing non-general funds, for the
receipt of general funds, and for the use and stewardship of all these funds.
The President, or designee, shall continue to provide
oversight of the College’s cash management system which is the framework for
the retention of non-general funds. The Internal Audit Department of the
College shall periodically audit the College’s cash management system in
accordance with appropriate risk assessment models and make reports to the
Audit Committee of the Board of Visitors. Additional oversight shall
continue to be provided through the annual audit and assessment of internal
controls performed by the Auditor of Public Accounts.
For the receipt of general and non-general funds, the
College shall conform to the Security for Public Deposits Act, Chapter 44 (§
2.2-4400 et seq.) of Title 2.2 of the Code of Virginia, as it currently exists
and from time to time may be amended.
VIII. ACCOUNTS RECEIVABLE MANAGEMENT AND COLLECTION.
The President, or designee, shall continue to be authorized
to create and implement any and all Accounts Receivable Management and
Collection policies as part of a system for the management of College financial
resources. The policies shall be guided by the requirements of the Virginia
Debt Collection Act, Chapter 48 (§ 2.2-4800 et seq.) of the Code of Virginia,
such that the College shall take all appropriate and cost effective actions to
aggressively collect accounts receivable in a timely manner.
These shall include, but not be limited to, establishing
the criteria for granting credit to College customers; establishing the nature
and timing of collection procedures within the above general principles; and
the independent authority to select and contract with collection agencies and, after
consultation with the Office of the Attorney General, private attorneys as
needed to perform any and all collection activities for all College accounts
receivable such as reporting delinquent accounts to credit bureaus, obtaining
judgments, garnishments, and liens against such debtors, and other
actions. In accordance with sound collection activities, the College
shall continue to utilize the Commonwealth’s Debt Set Off Collection programs
and procedures, shall develop procedures acceptable to the Tax Commissioner and
the State Comptroller to implement such programs, and shall provide a quarterly
summary report of receivables to the Department of Accounts in accordance with
the reporting procedures established pursuant to the Virginia Debt Collection Act.
IX. DISBURSEMENT MANAGEMENT.
The President, or designee, shall continue to be authorized
to create and implement any and all disbursement policies as part of a system
for the management of College financial resources. The disbursement
management policies shall continue to define the appropriate and reasonable
uses of all funds, from whatever source derived, in the execution of the
College’s operations. These policies also shall continue to address the
timing of appropriate and reasonable disbursements consistent with the Prompt
Payment Act, and the appropriateness of certain goods or services relative to
the College’s mission, including travel-related disbursements. Further,
the College’s disbursement policy shall continue to provide for the mechanisms
by which payments are made including the use of charge cards, warrants, and
electronic payments. Since the College no longer will interface to the
CARS system or any replacement for the CARS system for disbursements, the
College shall establish its own mechanisms for electronic payments to vendors
through Electronic Data Interchange (EDI) or similar process and payments to
the Commonwealth’s Debt Set Off Collection Programs.
Beginning with the fiscal year after the first fiscal year
for which it first receives the required certification from SCHEV, the College
may draw down its general fund appropriations (subject to available cash) and
tuition and E&G fees and other non-general fund revenues from the State
Treasury. Such funds shall be available to the College for disbursement
as provided in the then-current rules of the Automated Clearing House (ACH)
Network. The draw down of funds may be initiated in accordance with the
following schedule:
i) The College may draw down one-twenty-fourth (1/24)
of its annual general fund appropriation for Educational and General programs
on the first and fifteenth days of each month, and up to 50% of its annual
general fund appropriation for Student Financial Assistance on or after
September 1 of each year with the remaining 50% to be drawn on or after
February 1 of each year in order to meet student obligations;
ii) The College may draw down the sum of all tuition
and E&G fees and all other non-general revenues deposited to the State
Treasury each day on the same business day they were deposited; and
iii) The College anticipates that expenditures could exceed
available revenues from time to time during the year if the above disbursement
schedule is used. When the College projects a cost deficit in activities
supported by general fund appropriations, the College may make a request to the
State Comptroller for an early draw on its appropriated general funds deposited
in the State Treasury, in a form and within a timeframe agreeable to the
parties, in order to cover expenditures.
These disbursement policies shall authorize the President,
or designee, to independently select, engage, and contract for such
consultants, accountants, and financial experts, and other such providers of
expert advice and consultation, and, after consultation with the Office of the
Attorney General, private attorneys, as may be necessary or desirable in his or
her discretion. The policies also shall continue to include the ability
to locally manage and administer the Commonwealth’s credit card and cost
recovery programs related to disbursements, subject to any restrictions
contained in the Commonwealth’s contracts governing those programs, provided
that the College shall submit the credit card and cost recovery aspects of its
financial and operations policies to the State Comptroller for review and
comment prior to implementing those aspects of those policies. The
disbursement policies shall ensure that adequate risk management and internal
control procedures shall be maintained over previously decentralized processes
for public records, payroll, and non-payroll disbursements. The College
shall continue to provide summary quarterly prompt payment reports to the
Department of Accounts in accordance with the reporting procedures established
pursuant to the Prompt Payment Act.
The College’s disbursement policies shall be guided by the
principles of the Commonwealth’s policies as included in the Commonwealth’s
Accounting Policy and Procedures Manual. Upon the Effective Date of its
initial Management Agreement with the Commonwealth, the College shall continue
to follow the Commonwealth’s disbursement policies until such time as specific
alternative policies can be developed, approved and implemented. Such
alternate policies shall be submitted to the State Comptroller for review and
comment prior to their implementation by the College.
X. DEBT MANAGEMENT.
The President, or designee, shall continue to be authorized
to create and implement any and all debt management policies as part of a
system for the management of College financial resources.
Pursuant to § 23-38.108(B) of the Act, the College shall
have the authority to issue bonds, notes, or other obligations that do not
constitute State Tax Supported Debt, as determined by the Treasury Board, and that
are consistent with debt capacity and management policies and guidelines
established by its Board of Visitors, without obtaining the consent of any
legislative body, elected official, commission, board, bureau, or agency of the
Commonwealth or of any political subdivision, and without any proceedings or
conditions other than those specifically required by Subchapter 3 of the Act;
provided that, the College shall notify the Treasurer of Virginia of its
intention to issue bonds pursuant to this Policy at the time it adopts
the bond issuance planning schedule for those bonds. Any new or revised
debt capacity and management policy shall be submitted to the Treasurer of Virginia for review and comment prior to its adoption by the College.
The College recognizes that there are numerous types of
financing structures and funding sources available each with specific benefits,
risks, and costs. All potential funding sources shall be reviewed by the
President, or designee, within the context of the overall portfolio to
ensure that any financial product or structure is consistent with the College’s
objectives. Regardless of the financing structure(s) utilized, the
President, or designee, shall obtain sufficient documentation to gain a full
understanding of the transaction, including (i) the identification of potential
risks and benefits, and (ii) an analysis of the impact on College
creditworthiness and debt capacity. All such debt or financial products
issued pursuant to the provisions of §§ 23.38-107 and 23.38-108 of the Act,
shall be authorized by resolution of the Board of Visitors, providing that they
do not constitute State Tax Supported Debt.
The College will establish guidelines relating to the total
permissible amount of outstanding debt by monitoring College-wide ratios that
measure debt compared to College balance-sheet resources and annual debt
service burden. These measures will be monitored and reviewed regularly
in light of the College’s current strategic initiatives and expected debt
requirements. The Board of Visitors shall periodically review and approve
the College’s debt capacity and debt management guidelines. Any change in
the guidelines shall be submitted to the Treasurer of Virginia for review and
comment prior to their adoption by the College.
XI. INVESTMENT POLICY.
It is the policy of the College to invest its operating and
reserve funds solely in the interest of the College and in a manner that will
provide the highest investment return with the maximum security while meeting
daily cash flow demands and conforming to the Investment of Public Funds Act (§
2.2-4500 et seq. of the Code of Virginia). Investments shall be made with
the care, skill, prudence and diligence under the circumstances then prevailing
that a prudent person acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with like
aims.
Endowment investments shall be invested and managed in
accordance with the Uniform Management of Institutional Funds Act, §§ 55-268.1
through 55-268.10, and § 23-76.1 of the Code of Virginia.
The Board of Visitors shall periodically review and approve
the investment guidelines governing the College’s operating and reserve funds.
XII. INSURANCE AND RISK MANAGEMENT.
By July 1 of each odd-numbered year, the College shall
inform the Secretary of Finance of any intent during the next biennium to
withdraw from any insurance or risk management program made available to the
College through the Commonwealth’s Division of Risk Management and in which the
College is then participating, to enable the Commonwealth to complete an
adverse selection analysis of any such decision and to determine the additional
costs to the Commonwealth that would result from any such withdrawal. If
upon notice of such additional costs to the Commonwealth, the College proceeds
to withdraw from the insurance or risk management program, the College shall
reimburse the Commonwealth for all such additional costs attributable to such
withdrawal, as determined by the Commonwealth's actuaries. Such payment
shall be made in a manner agreeable to both the College and the Commonwealth.
3. That the following Chapter 3 shall hereafter be known as
the "2006 Management Agreement Between the Commonwealth of Virginia and The University of Virginia:"
CHAPTER 3.
MANAGEMENT AGREEMENT
BY AND BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA
This MANAGEMENT AGREEMENT, executed this 15th day of
November, 2005, by and between the Commonwealth of Virginia (hereafter, the
Commonwealth) and the Rector and Visitors of the University of Virginia (hereafter, the University) provides as follows:
RECITALS
WHEREAS, the University has satisfied the conditions
precedent set forth in subsections A and B of § 23-38.97 of the Code of
Virginia, to become a public institution of higher education of the
Commonwealth governed by Subchapter 3 (§ 23-38.91 et seq.) of the Restructured
Higher Education Administrative and Financial Operations Act, Chapter 4.10 (§
23-38.88 et seq.) of Title 23 of the Code of Virginia (Subchapter 3 and the
Act, respectively), as evidenced by:
1. Board of Visitors Approval. The minutes of a
meeting of the Board of Visitors of the University held on June 10, 2005, and
the accompanying certification of the Secretary of the Board, indicate that an
absolute two-thirds or more of the members voted to approve the resolution
required by subdivision A 1 of § 23-38.97 of the Act;
2. Written Application to the Governor. The
University has submitted to the Governor a written Application, dated October
27, 2005, with copies to the Chairmen of the House Committee on Appropriations,
the House Committee on Education, the Senate Committee on Finance, and the
Senate Committee on Education and Health, expressing the sense of its Board of
Visitors that the University is qualified to be, and should be, governed by
Subchapter 3 of the Act, and substantiating that the University has fulfilled
the requirements of paragraph 2 of subsection A of § 23-38.97 of the Act; and
3. Finding by the Governor. In accordance with
subsection B of § 23-38.97 of the Act, the Governor has found that the
University has fulfilled the requirements of subdivision A 2 of § 23-38.97, and
therefore has authorized Cabinet Secretaries to enter into this Management
Agreement on behalf of the Commonwealth with the University; and
WHEREAS, the University is therefore authorized to enter
into this Management Agreement as provided in subsection D of § 23-38.88 and
Subchapter 3 of the Act.
AGREEMENT
NOW, THEREFORE, in accordance with the provisions of the
Restructured Higher Education Administrative and Financial Operations Act,
Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of the Code of Virginia, and in
consideration of the foregoing premises, the Commonwealth and the University do
now agree as follows:
ARTICLE 1. DEFINITIONS.
As used in this Agreement, the following terms have the
following meanings, unless the context requires otherwise:
“Academic Division” means that part of the University known
as (State Agency 207).
“Act” means the Restructured Higher Education
Administrative and Financial Operations Act, Chapter 4.10 (§ 23-38.88 et seq.)
of Title 23 of the Code of Virginia.
“Agreement” means “Management Agreement.”
“Board of Visitors” means the Rector and Board of Visitors
of the University of Virginia.
“College” means that part of the University operated as the
University of Virginia’s College at Wise (State Agency 246).
“Covered Employee” means any person who is employed by the
University on either a salaried or wage basis.
“Covered Institution” means, on and after the effective
date of its initial management agreement with the Commonwealth, a public
institution of higher education of the Commonwealth of Virginia that has
entered into a management agreement with the Commonwealth to be governed by and
in accordance with the provisions of subsection D of § 23-38.88 and Subchapter
3 of the Act.
“Enabling legislation” means those chapters, other than
Chapter 4.10, of Title 23 of the Code of Virginia, as amended, creating,
continuing, or otherwise setting forth the powers, purposes, and missions of
the individual public institutions of higher education of the Commonwealth, and
as provided in §§ 2.2-2817.2, 2.2-2905, 51.1-126.3, and 51.1-1100 in the case
of the University of Virginia Medical Center.
“Management Agreement” means this agreement between the Commonwealth of Virginia and the University as required by subsection D of § 23-38.88 and
Subchapter 3 of the Act.
“Medical Center” means that part of the University
consisting of the University of Virginia Medical Center (State Agency 209), and
related health care and health maintenance facilities.
“Parties” means the parties to this Management Agreement,
the Commonwealth of Virginia and the University.
“Public institution of higher education” means those
two-year and four-year institutions enumerated in § 23-14 of the Code of Virginia.
“University” means the University of Virginia, consisting
of the Academic Division, the College, and the Medical Center.
ARTICLE 2. SCOPE OF MANAGEMENT AGREEMENT.
SECTION 2.1. Enhanced Authority Granted and
Accompanying Accountability. Subchapter 3 of the Act, provides that, upon
the execution of, and as of the effective date for, this Management Agreement,
the University shall become a Covered Institution entitled to be granted by the
Commonwealth and to exercise the powers and authority provided in Subchapter 3
of the Act, that are expressly contained in this Management Agreement. In
general, subject to its management agreement with the Commonwealth, status as a
Covered Institution governed by Subchapter 3 of the Act, and this Management
Agreement is intended to replace (i) the post-General Assembly authorization
prior-approval system of reviews, approvals, policies and procedures carried
out and implemented by a variety of central State agencies with (ii) a
post-audit system of reviews and accountability under which a Covered
Institution is fully responsible and fully accountable for managing itself
pursuant to Subchapter 3 of the Act and its management agreement with the
Commonwealth.
SECTION 2.1.1. Assessments and Accountability.
The University and its implementation of the enhanced authority granted by
Subchapter 3 of the Act and this Management Agreement, and the Board of
Visitors polices attached hereto as Exhibits M through R, shall be subject to
the reviews, assessments, and audits (i) set forth in the Act that are to be
conducted by the Auditor of Public Accounts, the Joint Legislative Audit and Review
Commission, and the State Council of Higher Education for Virginia, or (ii) as
may be conducted periodically by the Secretaries of Finance, Administration,
Education, or Technology, or by some combination of these four Secretaries, or
(iii) as otherwise may be required by law other than the Act.
SECTION 2.1.2. Express Grant of Powers and
Authority. Subject to the specific conditions and limitations contained
in Article 4 (Institutional Management), Article 5 (Capital Projects;
Procurement; Property Generally), and Article 6 (Human Resources) of Subchapter
3 of the Act, the Commonwealth and the University agree that the Commonwealth
has expressly granted to the University by this Management Agreement all the
powers and authority contained in certain policies adopted by the Board of
Visitors of the University attached hereto as Exhibits M through R and
governing (1) the undertaking and implementation of capital projects, and other
acquisition and disposition of property (Exhibit M), (2) the leasing of property,
including capital leases (Exhibit N), (3) information technology (Exhibit O),
(4) the procurement of goods, services, including certain professional
services, insurance, and construction (Exhibit P), (5) human resources (Exhibit
Q), and (6) its system of financial management (Exhibit R), including, as
provided in subsection B of § 23-38.104 of the Act, the sole authority to
establish tuition, fees, room, board, and other charges consistent with sum
sufficient appropriation authority for non-general funds as provided by the
Governor and the General Assembly in the Commonwealth’s biennial appropriations
authorization. Subject to the specific conditions and limitations
contained in Article 3 (Powers and Authority Generally) of Subchapter 3 of the Act,
in this Management Agreement, and in one or more of the Board of Visitors
policies attached hereto as Exhibits M through R, the Commonwealth and the
University agree that the Commonwealth has expressly granted to the University
all the powers and authority permitted by Article 3 (Powers and Authority
Generally) of Subchapter 3 of the Act.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties
and responsibilities set forth in, and for the appropriate implementation of,
this Management Agreement and the policies adopted by it and attached hereto as
Exhibits M through R. Consistent with this full and ultimate
accountability, however, the Board may, pursuant to its legally permissible
procedures, specifically delegate the duties and responsibilities set forth in
this Management Agreement to its officers, committees, and subcommittees, and,
as set forth in the policies adopted by the Board and attached hereto as
Exhibits M through R, to a person or persons within the University.
SECTION 2.1.3. Reimbursement by the University of
Certain Costs. By July 1 of each odd-numbered year, the University shall
inform the Secretary of Finance of any intent during the next biennium to
withdraw from any health or other group insurance or risk management program
made available to the University through any agency, body corporate, political
subdivision, authority, or other entity of the Commonwealth, and in which the
University is then participating, to enable the Commonwealth's actuaries to
complete an adverse selection analysis of any such decision and to determine
the additional costs to the Commonwealth that would result from any such
withdrawal. If upon notice of such additional costs to the Commonwealth, the
University proceeds to withdraw from such health or other group insurance or
risk management program, the University shall, pursuant to subdivision D 2 c of
§ 23-38.88, reimburse the Commonwealth for all such additional costs
attributable to such withdrawal as determined by the Commonwealth's actuaries.
SECTION 2.1.4. Potential Impact on Virginia College Savings Plan. As required by subdivision D (2) (c) of § 23-38.88 of the
Act, the University has given consideration to potential future impacts of
tuition increases on the Virginia College Savings Plan (§ 23-38.75 of the Code
of Virginia) and has discussed those potential impacts with the Executive
Director and staff of that Plan and with parties in the Administration who
participated in the development of this Management Agreement. The
Executive Director of the Plan has provided to the University and the
Commonwealth the Plan’s assumptions underlying the contract pricing of the
program.
SECTION 2.1.5. Justification for Deviations from the
Virginia Public Procurement Act. Pursuant to § 23-38.110 of the
Act, and subject to the provisions of this Management Agreement, the University
may be exempt from the provisions of the Virginia Public Procurement Act
(VPPA), Chapter 43 (§ 2.2-4300 et seq.) of Title 2.2 of the Code of
Virginia. Any procurement policies or rules that deviate from the VPPA
must be uniform across all institutions governed by Subchapter 3 of the Act,
and the Board of Visitors shall adopt and comply with procurement policies that
are based upon competitive principles and seek competition to the maximum
practical degree. The Policy Governing the Procurement of Goods,
Services, Insurance, and Construction, and the Disposition of Surplus Materials
and the Rules Governing Procurement of Goods, Services, Insurance, and
Construction (the Procurement Rules) attached to that Policy as Attachment 1
constitute the policies and uniform deviations from the VPPA required by
subsections A and B of § 23-38.110 of the Act.
Subsection D of § 23-38.110 of the Act, requires that the
University identify the public, educational, and operational interests served
by any procurement rule or rules that deviate from those in the VPPA. The
adopted Board of Visitors policy on procurement and the Procurement Rules
provide the University with the autonomy to administer its procurement process
while fully adhering to the principle that competition should be sought to the
maximum extent feasible. This autonomy will better position the
University to support the requirements of its growing teaching, research and
outreach missions. Greater autonomy in procurement will improve internal
capacity to respond quickly to emergent material and service issues and,
therefore, enable the University to be more efficient and effective in meeting
the Commonwealth’s goals for institutions of higher education. In some
instances, costs will be reduced. Taken collectively, the University’s
procurement policies and rules that differ from those required by the VPPA will
enhance procurement “best practices” as they currently are being observed
within the higher education community nationally. Further, these
changes will provide efficiencies to both the University and public sector
suppliers.
SECTION 2.1.6. Quantification of Cost Savings.
Subsection C of § 23-38.104 of the Act, requires that a Covered Institution
include in its management agreement with the Commonwealth the quantification of
cost savings realized as a result of the additional operational flexibility provided
pursuant to Subchapter 3 of the Act. Since this initial Management
Agreement with the Commonwealth has not yet been implemented by the University,
the parties agree that the University is not in a position to quantify any such
cost savings at this time, although the University expects that there will be
cost savings resulting from the additional authority granted to the University
pursuant to Subchapter 3 of the Act, and that such cost savings will be part of
the determinations made during the reviews, assessments, and audits to be
conducted pursuant to Subchapter 3 of the Act by the Auditor of Public
Accounts, the Joint Legislative Audit and Review Commission, and the State
Council of Higher Education for Virginia, and as otherwise described in Section
2.1.1 above.
SECTION 2.1.7. Participation in State Programs.
The Commonwealth intends that the University shall continue to fully
participate in, and receive funding support from the many and varied programs
established now or in the future by the Commonwealth to provide support for
Virginia’s public institutions of higher education and for Virginians attending
such institutions, including but not limited to: the state capital outlay
and bond financing initiatives undertaken from time to time by the Commonwealth;
the Higher Education Equipment Trust Fund established pursuant to (§ 23-30.24
et seq.) of the Code of Virginia; the Maintenance Reserve Fund as provided in
the Appropriation Act; the Eminent Scholars program as provided in the
Appropriation Act; the Commonwealth’s various student financial assistance
programs; and other statewide programs or initiatives that exist, or may be
established, in support of the Commonwealth’s higher education institutions,
programs, or activities.
As a teaching hospital that is a part of the University as
of the Effective Date, the Medical Center shall continue to be characterized as
a state government-owned or operated and state-owned teaching hospital for
purposes of payments under the State Plan for Medicaid Services adopted
pursuant to (§ 32.1-325 et seq.). The University has committed to serve
indigent and medically indigent patients through its adoption of the Guidelines
for the Eligibility of Indigent and Medically Indigent Persons for Health Care
Services at the State University Teaching Hospitals. Pursuant to
subsection B of § 23-38.93 of the Act, the Commonwealth, through the Department
of Medical Assistance Services, shall, subject to the appropriation in the
Appropriation Act in effect, continue to reimburse the full cost of the
provision of care, treatment, health-related and educational services to
indigent and medically indigent patients and continue to treat the Medical
Center as a Type One Hospital for purposes of such reimbursement.
SECTION 2.1.8. Implied Authority. Pursuant to
subdivision D 1 of § 23-38.88 of the Act, the only implied authority granted to
the University by this Management Agreement is that implied authority that is
actually necessary to carry out the expressed grant of financial or operational
authority contained in this Agreement or in the policies adopted by the
University’s Board of Visitors and attached hereto as Exhibits M through R.
SECTION 2.1.9. Exercise of Authority. The University
and the Commonwealth acknowledge and agree that the execution of this
Management Agreement constitutes the conclusion of a process that, as of the
effective date of this Agreement, confers upon the University the enhanced
authority and operating flexibility described above, all of which is in
furtherance of the purposes of Subchapter 3 of the Act. Therefore,
without any further conditions or requirements, the University shall, on and
after the effective date of this Management Agreement, be authorized to
exercise the authority conferred upon it by this Management Agreement and the
policies adopted by its Board of Visitors attached hereto as Exhibits M through
R, and by Article 3 (Powers and Authority Generally) of Subchapter 3 of the Act
except to the extent that the powers and authority contained in Article 3 of
Subchapter 3 of the Act have been limited by this Management Agreement or the
Board of Visitors policies attached hereto as Exhibits M through R.
The University and the Commonwealth also acknowledge and
agree that, pursuant to subsection A of § 23-38.91 of the Act and consistent
with the terms of this Management Agreement, the Board of Visitors of the
University shall assume full responsibility for management of the University,
subject to the requirements and conditions set forth in Subchapter 3 of the
Act, the general requirements for this Management Agreement as provided in §
23-38.88 of the Act, and this Management Agreement. The Board of Visitors
shall be fully accountable for (a) the management of the University as provided
in the Act, (b) meeting the requirements of §§ 2.2-5004, 23-9.2:3.02, and
23-9.6:1.01 of the Code of Virginia, and (c) meeting such other provisions as
are set forth in this Management Agreement.
SECTION 2.2. State Goals.
SECTION 2.2.1. Furthering State Goals. As required
for all public institutions of higher education of the Commonwealth by
subsection B of § 23-38.88 of the Code of Virginia, prior to August 1, 2005,
the Board of Visitors of the University adopted the resolution setting forth
its commitment to the Governor and the General Assembly to meet the State goals
specified in that subsection B. In addition to the above commitments, the
University commits to furthering these State goals by:
1. In addition to its six-year target of achieving
$337 million in external research by 2011-12, the University commits to match
from institutional funds, other than general funds or tuition, on a dollar for
dollar basis, any additional research funds provided by the State in the
Appropriation Act above the amount provided from institutional funds for
research in 2005-06.
2. In a concerted effort to provide educational
opportunities to Virginia students attending institutions in the Virginia
Community College System (VCCS) and Richard Bland College, the University
commits to work with Virginia Polytechnic Institute and State University
(Virginia Tech) and the College of William and Mary in Virginia to establish a
program under which these three institutions will increase significantly the
number of such students transferring to their institutions. Specifically,
pursuant to this program, the University, Virginia Tech and the College of
William and Mary in Virginia collectively commit to enroll as transfer students
from VCCS institutions and Richard Bland College (i) by the 2007-08 fiscal
year, not less than approximately 300 new such transfer students each year over
the number enrolled in 2004-05, for a total of approximately 900 such transfer
students each year, and (ii) by the end of the decade, not less than
approximately 650 new such transfer students each year over the number enrolled
in 2004-05, for a total of approximately 1,250 such transfer students each
year. The three institutions have agreed that they will mutually
determine how to divide the responsibility for these additional transfer
students equitably among themselves.
3. As an institutional priority and obligation, the
University commits to the Governor and General Assembly to work meaningfully
and visibly with an economically distressed region or local area of the
Commonwealth, not smaller in size than a city or county, which lags behind the
Commonwealth in education, income, employment, and other factors. The
University commits to establish a formal partnership with that area to develop
jointly a specific action plan that builds on the University's programmatic
strengths and uses the University’s faculty, staff and, where appropriate,
student expertise to stimulate economic development in the area to make the
area more economically viable, and to improve student achievement and teacher
and administrator skill sets in a school division in that area. The University
shall submit the action plan to the Governor and General Assembly by no later
than December 31, 2006, and shall report to the Governor and General Assembly
by September 1 of each year on its progress in implementing the action plan
during the prior fiscal year.
SECTION 2.2.2. Student Enrollment, Tuition, and
Financial Aid. As required by § 23-9.2:3.02 of the Code of Virginia, the
University, along with all other public institutions of higher education of the
Commonwealth, has developed and submitted to the State Council of Higher
Education for Virginia (SCHEV) by October 1, 2005, an institution-specific
Six-Year Plan addressing the University’s academic, financial, and enrollment
plans for the six-year period of fiscal years 2006-07 through 2011-12.
Subsection A of § 23-9.2:3.02 requires the University to update this Six-Year
Plan by October 1 of each odd-numbered year. Subsection B of § 23-38.97
of the Act requires that a management agreement address, among other issues,
such matters as the University’s in-state undergraduate student enrollment, its
financial aid requirements and capabilities, and its tuition policy for
in-state undergraduate students. These matters are addressed below and in
the University’s Six-Year Plan submitted to SCHEV, and the parties therefore
agree that the University’s Six-Year Plan and the description below meet the
requirement of subsection B of § 23-38.97 of the Act.
Subsection B of § 23-38.104 of the Act requires the Board
of Visitors of the University to include in this Management Agreement the
University’s commitment to provide need-based grant aid for middle- and
lower-income Virginia students in a manner that encourages student enrollment
and progression without respect to potential increases in tuition and
fees. The University’s commitment in this regard is clear.
The Academic Division will continue to offer enrollment to
in-state undergraduate students without regard to ability to pay and shall
continue implementation of AccessUVa, a financial aid program designed to keep
higher education affordable for all undergraduate students, including
Virginians and non-Virginians, who qualify for admission, regardless of economic
circumstance. In the fall 2005 AccessUVa was modified to provide expanded
benefits for qualifying Virginia Community College System transfer
students. The program shall be substantially as described in the
remainder of this Section 2.2.2, as may be amended from time to time by the
Board of Visitors of the University and reported to the Secretaries of Finance
and Education and the Chairmen of the Senate Committee on Finance and the House
Committee on Appropriations.
The Academic Division currently offers financial aid
packages to meet 100% of demonstrated
need to all qualified undergraduate students. This goal
was met in 2004-05.
The
Academic Division will eliminate all need-based loans, replacing them with
grants, in the financial-aid packages of low-income undergraduate students,
beginning with the fall 2004 entering class. At this time low-income is
defined as families with an income equivalent to 200% of the federal poverty
line or less. This phase will be fully implemented by fall 2007.
The University’s goals for this component of the program include:
1. Increase enrollment by low-income students.
2. Improve the socio-economic diversity at the University.
3. Enable low-income financial aid recipients to have an
enhanced student experience.
4. Improve satisfaction in post graduate choices of
low-income financial aid recipients.
Success in attaining these goals will be measured by five
metrics, 1) applications from low-income students, 2) low-income applicants
offered admissions, 3) low-income applicants who accepted offers, 4) yield of
low-income students, and 5) percentage of low-income students in the student
body. In 2005-06 applications from low-income students rose 13.1% from
the previous year for a total of 875. The University offered admission to
357 applicants, 10% more than in the prior year. Almost 40% more of those
low-income students to whom the University offered admission for the 2005-06
academic year accepted the offer, 233 compared to 133 last year, increasing the
yield from 50% to over 64%. The trend in the percentage of low-income
students in the student body has also improved over the last two years
increasing from 4.29% in 2004-05 to 6.45% in 2005-06. The University
expects to increase the numbers of low-income students enrolled from the
current 830 to 1,033 by 2011-12 as outlined in the Six-Year Plan.
The Academic Division will cap the amount of need-based
loans to any undergraduate student who qualifies for some form of financial aid
to a maximum of 25% of the total in-state cost of attendance over four years
and will meet the remaining need with grants, beginning with the fall 2005
first-year or VCCS transfer students. All students, regardless of state
residency, will receive the in-state cap level. This phase will be fully
implemented by fall 2008. This particular component of the program is
targeted at middle-income students whose families earn between $75,000 and
$149,999. The University’s goals for this component of the program
include:
1. Improve the socio-economic diversity at the University.
2. Enable financial aid recipients to have an enhanced
student experience.
3. Improve satisfaction in post graduate choices.
Success will be measured in this area by three metrics, 1)
applications from middle-income students, 2) participation of financial aid
recipients in study abroad, internships, volunteer work, student activities,
etc., and 3) post graduate choices and starting salaries. Seven percent
or 219 more middle-income students applied to the University in 2005-06 than in
2004-05 and qualified for AccessUVa benefits.
The Academic Division will provide comprehensive counseling
to prospective and current students and their families, assisting them in the
financial aid application process and presenting them with financing options
outside of need-based financial aid. This last component of the program
has three main goals:
1. Improve the perception of the University as affordable.
2. Increase the socio-economic diversity of the University.
3. Improve student understanding of financial planning and
debt management.
The University’s financial aid educational programs are
currently being designed. We expect to measure trends in the following
ways in order to gage success: 1) usage figures of educational programs
provided on financial planning and debt management, 2) percent of financial aid
applicants participating in financial management programs, and 3) evaluation of
effectiveness of the educational programs.
The Commonwealth and the University agree that this
commitment meets the requirements of subsection B of § 23-38.104 of the Act.
SECTION 2.3. Authority Granted to The University of Virginia’s College at Wise. The College shall receive the benefits of
the additional financial and operational authority granted by this Management
Agreement as it and the policies adopted by the Board of Visitors attached as
Exhibits M through R are implemented by the University on behalf of the
College, but the College shall not receive any additional independent financial
or operational authority as a result of this Management Agreement or the
attached Board of Visitors policies beyond the independent financial and
operational authority that it had prior to the effective date of this
Management Agreement or that it may be granted by law in the future.
SECTION 2.4. Other Law. As provided in
subsection B of § 23-38.91 of the Act, the University shall be governed and
administered in the manner provided not only in this Management Agreement, but
also as provided in the Appropriation Act then in effect and the University’s
Enabling Legislation.
SECTION 2.4.1. The Appropriation Act. The
Commonwealth and the University agree that, pursuant to the current terms of
the Act and the terms of § 4-11.00 of the 2004-06 Appropriation Act, if there
is a conflict between the provisions of the Appropriation Act and the
provisions of Subchapter 3 of the Act, or this Management Agreement, or the
Board of Visitors policies attached to this Management Agreement as Exhibits M
through R, the provisions of the Appropriation Act shall control, and shall
continue to control unless provided otherwise by law.
SECTION 2.4.2. The University’s Enabling
Legislation. As provided in subsection C of § 23-38.91 of the Act, in the
event of a conflict between any provision of Subchapter 3 of this Act and the
University’s Enabling Legislation, the Enabling Legislation shall control,
except as provided in subdivision A.1.b of § 23-38.112 of the Act, regarding §
23-77.1.
SECTION 2.4.3. Title 2.2 of the Code of Virginia. As provided in subsection B of § 23-38.92 of the Act, except as
specifically made inapplicable under Subchapter 3 of the Act and the express
terms of this Management Agreement, the provisions of Title 2.2 relating
generally to the operation, management, supervision, regulation, and control of
public institutions of higher education shall be applicable to the University
as provided by the express terms of this Management Agreement. As further
provided in subsection C of § 23-38.92 of the Act, in the event of conflict
between any provision of Title 2.2 and any provision of Subchapter 3 of the Act
as expressed in this Management Agreement, the provisions of this Management
Agreement shall control.
SECTION 2.4.4. Educational Policies of the
Commonwealth. As provided in subsection A of § 23-38.93 of the Act, for
purposes of §§ 2.2-5004, 23-1.01, 23-1.1, 23-2, 23-2.1, 23-2.1:1, 23-3, 23-4.2,
23-4.3, 23-4.4, 23-7.1:02, 23-7.4, 23-7.4:1, 23-7.4:2, 23-7.4:3, 23-7.5,
23-8.2:1, 23-9.1, 23-9.2, 23-9.2:3, 23-9.2:3.02, 23-9.2:3.1 through 23-9.2:5,
23-9.6:1.01, and Chapter 4.9 (§ 23-38.75 et seq.) of the Code of Virginia, the
University shall remain a public institution of higher education of the
Commonwealth following the effective date of this Management Agreement, and shall
retain the authority granted and any obligations required by such provisions,
unless and until provided otherwise by law other than the Act. In
addition, the University shall retain the authority, and any obligations
related to the exercise of such authority, that is granted to institutions of
higher education pursuant to Chapter 1.1 (§ 23-9.3 et seq.), Chapter 3 (§ 23-14
et seq.), Chapter 3.2 (§ 23-30.23 et seq.), Chapter 3.3 (§ 23-30.39 et seq.),
Chapter 4 (§ 23-31 et seq.), Chapter 4.01 (§ 23-38.10:2 et seq.), Chapter 4.1
(§ 23-38.11 et seq.), Chapter 4.4 (§ 23-38.45 et seq.), Chapter 4.4:1 (§
23-38.53:1 et seq.), Chapter 4.4:2 (§ 23-38.53:4 et seq.), Chapter 4.4:3 (§
23-38.53:11), Chapter 4.4:4 (§ 23-38.53:12 et seq.), Chapter 4.5 (§ 23-38.54 et
seq.), Chapter 4.7 (§ 23-38.70 et seq.), Chapter 4.8 (§ 23-38.72 et seq.), and
Chapter 4.9 (§ 23-38.75 et seq.), unless and until provided otherwise by law
other than the Act.
SECTION 2.4.5. Public Access to Information. As
provided in § 23-38.95 of the Act, the University shall continue to be subject
to § 2.2-4342 and to the provisions of the Virginia Freedom of Information Act,
Chapter 37 (§ 2.2-3700 et seq.) of Title 2.2 of the Code of Virginia, but shall
be entitled to conduct business pursuant to § 2.2-3709 and, in all cases, may
conduct business as a “state public body” for purposes of subsection B of §
2.2-3708.
SECTION 2.4.6. Conflicts of Interests. As
provided in § 23-38.96 of the Act, the provisions of the State and Local
Government Conflict of Interests Act, Chapter 32 (§ 2.2-3100 et seq.) that are
applicable to officers and employees of a state governmental agency shall
continue to apply to the members of the Board of Visitors of the University and
to its Covered Employees.
SECTION 2.4.7. Other Provisions of the Code of Virginia. Other than as specified above, any other powers and authorities granted to
the University pursuant to any other sections of the Code of Virginia,
including other provisions of the Act, are not affected by this Management Agreement
or the Board policies attached hereto as Exhibits M through R.
ARTICLE 3. AMENDMENTS TO, AND RIGHT AND POWER TO VOID
OR REVOKE, MANAGEMENT AGREEMENT.
SECTION 3.1. Amendments. Any change to or deviation
from this Management Agreement or the Board of Visitors policies attached
hereto as Exhibits M through R shall be reported to the Secretaries of Finance,
Administration, Education, and Technology and to the Chairmen of the Senate
Committee on Finance and the House Committee on Appropriations and shall be
posted on the University's website. The change or deviation shall become
effective unless one of the above persons notifies the University in writing
within 60 days that the change or deviation is substantial and material. Any
substantial and material change or deviation shall require the execution by the
parties of an amendment to this Management Agreement or a new Management
Agreement pursuant to the provisions of subsection D of § 23-38.88 and may lead
to the Governor declaring this Management Agreement to be void pursuant to
subdivision D 4 of § 23-38.88 of the Act.
SECTION 3.2. Right and Power to Void, Revoke, or
Reinstate Management Agreement.
SECTION 3.2.1. Governor. Pursuant to
subdivision D 4 of § 23-38.88, and § 23-38.98, of the Act, if the Governor
makes a written determination that the University is not in substantial
compliance with the terms of this Management Agreement or with the requirements
of the Act in general, (i) the Governor shall provide a copy of that written
determination to the Rector of the Board of Visitors of the University and to
the members of the General Assembly, and (ii) the University shall develop and
implement a plan of corrective action, satisfactory to the Governor, for
purposes of coming into substantial compliance with the terms of this
Management Agreement and with the requirements of the Act, as soon as
practicable, and shall provide a copy of such corrective action plan to the
members of the General Assembly. If after a reasonable period of time after
the corrective action plan has been implemented by the University, the Governor
determines that the institution is not yet in substantial compliance with this
Management Agreement or the requirements of the Act, the Governor may void this
Management Agreement. Upon the Governor voiding this Management
Agreement, the University shall no longer be allowed to exercise any
restructured financial or operational authority pursuant to the provisions of
Subchapter 3 of the Act unless and until the University has entered into a
subsequent management agreement with the Secretary or Secretaries designated by
the Governor or the voided Management Agreement is reinstated by the General
Assembly.
SECTION 3.2.2. General Assembly. As provided in
subdivision D 4 of § 23-38.88 of the Act, the General Assembly may reinstate a
Management Agreement declared void by the Governor. Pursuant to §
23-38.98 of the Act, the University’s status as a Covered Institution governed
by Subchapter 3 of the Act may be revoked by an act of the General Assembly (i)
if the University fails to meet the requirements of Subchapter 3 of the Act, or
(ii) if the University fails to meet the requirements of this Management
Agreement.
ARTICLE 4. GENERAL PROVISIONS.
SECTION 4.1. No Third-Party Beneficiary Status.
Nothing in this Agreement, express or implied, shall be construed as conferring
any third-party beneficiary status on any person or entity.
SECTION 4.2. Sovereign Immunity. Pursuant to
subsection E of § 23-38.88 of the Act, the University and the members of its
Board of Visitors, officers, directors, employees, and agents shall be entitled
to the same sovereign immunity to which they would be entitled if the
University were not governed by the Act; provided that the Virginia Tort Claims
Act, (§ 8.01-195.1 et seq.) of the Code of Virginia, and its limitations on
recoveries shall remain applicable with respect to the University.
SECTION 4.3. Term of Agreement. This Management
Agreement shall expire at midnight on June 30, 2010.
WHEREFORE, the foregoing Management Agreement has been
executed as of this 15th day of November, 2005, and shall become effective on
the effective date of legislation enacted into law providing for the terms of
such Agreement.
EXHIBIT M
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE UNIVERSITY OF VIRGINIA
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING CAPITAL PROJECTS
THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA
POLICY GOVERNING CAPITAL PROJECTS
I. PREAMBLE.
Chapters 995 and 933 of the 1996 Acts of Assembly (House
Bill No. 884 and Senate Bill No. 389, respectively) delegated limited but
significant autonomy to the University of Virginia to establish its own
post-appropriation system for undertaking the implementation of non-general
fund capital projects for the University of Virginia Medical Center.
Similarly, § 4-5.08 of the 1996 Appropriation Act, delegated nearly
identical limited autonomy to the University as a whole for non-general fund
capital projects. Pursuant thereto, in 1996 the Board of Visitors adopted
a Policy Statement Governing Exercise of Post-Appropriation Autonomy for
Certain Non-General Fund Capital Projects (the Existing Policy Statement).
The Restructured Higher Education Financial and
Administrative Operations Act (the Act), Chapter 4.10 of Title 23 of the Code
of Virginia, provides that, upon becoming a Covered Institution, the University
may be delegated the authority to establish its own system for undertaking the
implementation of its capital projects. In general, status as a Covered
Institution is designed to replace the post-authorization system of reviews,
approvals, policies and procedures carried out by a variety of central State
agencies, and also the traditional pre-authorization approval process for
projects funded entirely with non-general funds and without any proceeds from
State Tax Supported Debt. The University's system for carrying out its
capital outlay process as a Covered Institution is to be governed by policies
adopted by the Board of Visitors. The following provisions of this
Policy, together with the Policy Governing the Procurement of Goods, Services,
Insurance, and Construction, and the Disposition of Surplus Materials adopted
by the Board, and the Rules Governing Procurement of Goods, Services,
Insurance, and Construction, which is attached as Attachment 1 to that Policy,
constitute the adopted Board of Visitors policies regarding the University’s
capital projects, whether funded by a state general fund appropriation, State
Tax Supported Debt, or funding from other sources.
This Policy is intended to encompass and implement the
authority that may be granted to the University pursuant to Subchapter 3 of the
Act. Any other powers and authorities granted to the University pursuant
to the Appropriation Act, or any other sections of the Code of Virginia,
including other provisions of the Act and the University's Enabling
Legislation, are not affected by this Policy. In particular, other powers
and authorities granted to the Medical Center by law, to the extent they exceed
those granted to the University pursuant to Subchapter 3 of the Act, are not
affected by this Policy.
II. DEFINITIONS.
As used in this policy, the following terms shall have the
following meanings, unless the context requires otherwise:
“Academic Division” means that part of the University known
as (State Agency 207).
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 of Title 23 of the Code of Virginia.
“Board of Visitors” or “Board” means the Rector and
Visitors of the University of Virginia.
“Capital Lease” means a lease that is defined as such
within Generally Accepted Accounting Principles pursuant to the pronouncement
of the Financial Accounting Standards Board.
“Capital Professional Services” means professional
engineering, architecture, land surveying and landscape architecture services
related to capital projects.
“Capital project(s)” means the acquisition of any interest
in land, including improvements on the acquired land at the time of
acquisition, new construction, improvements or renovations, and Capital Leases.
“College” means that part of the University operated as the
University of Virginia’s College at Wise, also known as (State Agency 246).
“Covered Institution” means, on and after the Effective
Date of its initial Management Agreement, a public institution of higher
education of the Commonwealth of Virginia that has entered into a management
agreement with the Commonwealth to be governed by the provisions of Subchapter
3 of the Act.
“Enabling Legislation” means those chapters, other than
Chapter 4.10, of Title 23 of the Code of Virginia, as amended, creating,
continuing, or otherwise setting forth the powers, purposes, and missions of
the individual public institutions of higher education of the Commonwealth, and
as provided in §§ 2.2-2817.2, 2.2-2905, 51.1-126.3, and 51.1-1100 in the case
of the Medical Center.
“Existing Policy Statement” means the Policy Statement
Governing Exercise of Post-Appropriation Autonomy for Certain Non-General Fund
Capital Projects adopted by the Board of Visitors in 1996.
“Major Capital Project(s)” means the acquisition of any
interest in land, including improvements on the acquired land at the time of
acquisition, new construction of 5,000 square feet or greater or costing $1
million or more, improvements or renovations of $1 million or more, and Capital
Leases.
“Medical Center” means that part of the University consisting
of the University of Virginia Medical Center (State Agency 209), and related
health care and health maintenance facilities.
“State Tax Supported Debt” means bonds, notes or other
obligations issued under Article X, Section 9(a), 9(b), or 9(c), or 9(d), if
the debt service payments are made or ultimately are to be made from general
government funds, as defined in the December 20, 2004 Report to the Governor
and General Assembly of the Debt Capacity Advisory Committee or as that
definition is amended from time to time.
“University” means the University of Virginia, consisting
of the Academic Division, the College, and the Medical Center.
III. SCOPE OF POLICY.
This Policy applies to the planning and budget development
for capital projects, capital project authorization, and the implementation of
capital projects, whether funded by a general fund appropriation of the General
Assembly, proceeds from State Tax Supported Debt, or funding from other
sources.
This Policy provides guidance for 1) the process for developing
one or more capital project programs for the University, 2) authorization of
new capital projects, 3) procurement of Capital Professional Services and
construction services, 4) design reviews and code approvals for capital
projects, 5) environmental impact requirements, 6) building demolitions, 7)
building and land acquisitions, 8) building and land dispositions, 9) project
management systems, and 10) reporting requirements.
IV. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties
and responsibilities set forth in, and for the appropriate implementation of,
this Policy. Consistent with this full and ultimate accountability,
however, the Board may, pursuant to its legally permissible procedures,
specifically delegate either herein or by separate Board resolution the duties
and responsibilities set forth in this Policy to a person or persons within the
University, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the University’s usual delegation policies and
procedures.
V. CAPITAL PROGRAM.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall adopt a system for developing one or more
capital project programs that defines or define the capital needs of the
University for a given period of time consistent with the University’s
published Master Plan. This process may or may not mirror the
Commonwealth’s requirements for capital plans. The Board of Visitors
shall approve the program for Major Capital Projects. Major Capital
Projects that are to be funded entirely or in part by a general fund
appropriation of the General Assembly or proceeds from State Tax Supported Debt
shall follow the Commonwealth’s requirements for capital plans. The Board
may approve amendments to the program for Major Capital Projects annually or
more often if circumstances warrant.
It shall be University policy that each capital project
program shall meet the University’s mission and institutional objectives, and
be appropriately authorized by the University. Moreover, it shall be
University policy that each capital project shall be of a size and scope to
provide for the defined program needs, designed in accordance with all
applicable building codes and handicapped accessibility standards as well as
the University’s design guidelines and standards, and costed to reflect current
costs and escalated to the mid-point of anticipated construction.
VI. AUTHORIZATION OF CAPITAL PROJECTS
The Board of Visitors shall authorize the initiation of
each Major Capital Project by approving its size, scope, budget, and
funding. The President, acting through the Executive Vice President and
Chief Operating Officer, shall adopt procedures for approving the size, scope,
budget and funding of all other capital projects. Major Capital Projects
that are to be funded entirely or in part by a general fund appropriation of
the General Assembly or proceeds from State Tax Supported Debt, shall require
both Board of Visitors approval and those pre-appropriation approvals of the
State’s governmental agencies then applicable, and shall follow the State’s
process for capital budget requests.
It shall be the policy of the University that the
implementation of capital projects shall be carried out so that the capital
project as completed is the capital project approved by the Board for Major
Capital Projects and according to the procedures adopted by the President,
acting through the Executive Vice President and Chief Operating Officer, for
all other capital projects. The President, acting through the Executive
Vice President and Chief Operating Officer, shall ensure strict adherence to
this requirement.
Accordingly, the budget, size and scope of a capital
project shall not be materially changed beyond the plans and justifications
that were the basis for the capital project's approval, either before or during
construction, unless approved in advance as described above. Minor
changes shall be permissible if they are determined by the President, acting
through the Executive Vice President and Chief Operating Officer, to be
justified.
Major Capital Projects may be submitted for Board of
Visitors authorization at any time but must include a statement of urgency if
not part of the approved Major Capital Project program.
VII. PROCUREMENT OF CAPITAL PROFESSIONAL SERVICES AND
CONSTRUCTION SERVICES.
It shall be the policy of the University that procurements
shall result in the purchase of high quality services and construction at
reasonable prices and shall be consistent with the Policy Governing the
Procurement of Goods, Services, Insurance, and Construction, and the
Disposition of Surplus Materials adopted by the Board, and with the Rules
Governing Procurement of Goods, Services, Insurance, and Construction, which is
attached as Attachment 1 to that Policy. Specifically, the University is
committed to:
Seeking competition to the maximum practical degree, taking
into account the size of the anticipated procurement, the term of the resulting
contract and the likely extent of competition;
Conducting all procurements in a fair and impartial manner
and avoiding any impropriety or the appearance of any impropriety prohibited by
State law or University policy;
Making procurement rules clear in advance of any
competition;
Providing access to the University’s business to all
qualified vendors, firms and contractors, with no potential bidder or offeror
excluded arbitrarily or capriciously, while allowing the flexibility to engage
in cooperative procurements and to meet special needs of the University;
Including in contracts of more than $10,000 the
contractor’s agreement not to discriminate against employees or applicants
because of race, religion, color, sex, national origin, age, disability or
other basis prohibited by State law except where there is a bona fide
occupational qualification reasonably necessary to the contractor’s normal
operations; and
Providing for a non-discriminatory procurement process, and
including appropriate and lawful provisions to effectuate fair and reasonable
consideration of women-owned, minority-owned and small businesses and to
promote and encourage a diversity of suppliers.
The President, acting through the Executive Vice President
and Chief Operating Officer, is authorized to develop implementing procedures
for the procurement of Capital Professional Services and construction services
at the University. The procedures shall implement this Policy and provide
for:
A system of competitive negotiation for Capital
Professional Services, including a procedure for expedited procurement of
Capital Professional Services under $50,000, pursuant to (i) subdivisions 1, 2,
and 3 a of the defined term "competitive negotiation" in Rule 4 of
the Rules Governing Procurement of Goods, Services, Insurance, and
Construction, and (ii) § 4-5.06 of the 2004-2006 Appropriation Act;
A prequalification procedure for contractors or products;
A procedure for special construction contracting methods,
including but not limited to design-build and construction management
contracts; and
A prompt payment procedure.
The University also may enter into cooperative arrangements
with other private or public health or educational institutions, healthcare
provider alliances, purchasing organizations or state agencies where, in the
judgment of the University, the purposes of this Policy will be furthered.
VIII. DESIGN REVIEWS AND CODE APPROVALS.
The Board of Visitors shall review the design of all Major
Capital Projects and shall provide final Major Capital Project authorization
based on the size, scope and cost estimate provided with the design. Unless
stipulated by the Board of Visitors at the design review, no further design
reviews shall be required. For all capital projects other than Major
Capital Projects, the President, acting through the Executive Vice President
and Chief Operating Officer, shall adopt procedures for design review and
project authorization based on the size, scope and cost estimate provided with
the design. It shall be the University’s policy that all capital projects
shall be designed and constructed in accordance with applicable Virginia Uniform Statewide Building Code (VUSBC) standards and the applicable accessibility
code.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall designate a Building Official responsible
for building code compliance by either (i) hiring an individual to be the
University Building Official, or (ii) continuing to use the services of the
Department of General Services, Division of Engineering and Buildings, to
perform the Building Official function. If option (i) is selected, the
individual hired as the University Building Official shall be a full-time
employee, a registered professional architect or engineer, and certified by the
Department of Housing and Community Development to perform this Building Official
function. The University Building Official shall issue building permits
for each capital project required by the VUSBC to have a building permit, and
shall determine the suitability for occupancy of, and shall issue
certifications for building occupancy for, all capital projects requiring such
certification. Prior to issuing any such certification, this individual
shall ensure that the VUSBC and accessibility requirements are met for that
capital project and that such capital project has been inspected by the State
Fire Marshal or his designee. When serving as the University Building Official, such individual shall organizationally report directly and exclusively to
the Board of Visitors. If the University hires its own University
Building Official, it shall fulfill the code review requirement by maintaining
a review unit supported by resources and staff who are certified by the
Department of Housing and Community Development in accordance with § 36-137 of
the Code of Virginia, for such purpose and who shall review plans,
specifications and documents for compliance with building codes and standards
and perform required inspections of work in progress and the completed capital
project. No individual licensed professional architect or engineer hired
or contracted with to perform these functions shall also perform other building
code-related design, construction, facilities-related project management or
facilities management functions for the University on the same capital project.
IX. ENVIRONMENTAL IMPACT REPORTS.
It shall be the policy of the University to assess the
environmental, historic preservation, and conservation impacts of all capital
projects and to minimize and otherwise mitigate all adverse impacts to the
extent practicable. The University shall develop a procedure for the
preparation and approval of environmental impact reports for capital projects,
in accordance with State environmental, historic preservation, and conservation
requirements generally applicable to capital projects otherwise meeting the
definition of Major Capital Projects but, pursuant to § 23-38.109 C 1 of the
Act, with a cost of $300,000 or more.
X. BUILDING DEMOLITIONS.
It shall be the policy of the University to consider the
environmental and historical aspects of any proposed demolitions. The
Board of Visitors shall be responsible for approving demolition requests.
The University shall develop a procedure for the preparation and review of
demolition requests, including any necessary reviews by the Department of Historic
Resources and the Art and Architectural Review Board in accordance with State
historic preservation requirements generally applicable to capital projects in
the Commonwealth. Further, for any property that was acquired or
constructed with funding from a general fund appropriation of the General
Assembly or from proceeds from State Tax Supported Debt, general laws
applicable to State owned property shall apply.
XI. BUILDING OR LAND ACQUISITIONS.
It is the policy of the University that capital projects involving
building or land acquisition shall be subjected to thorough inquiry and due
diligence prior to closing on the acquisition of such real property. The
President, acting through the Executive Vice President and Chief Operating
Officer, shall ensure that the project management system implemented pursuant
to Section XIII below provides for a review and analysis of all pertinent
matters relating to the acquisition of buildings and land as any prudent
purchaser would perform to the end that any building or land acquired by the
University shall be suitable for its intended purpose, that the acquisition can
be made without substantial risk of liability to the University and that the
cost of the real property to be acquired, together with any contemplated development
thereof, shall be such that compliance with the provisions of Section VI of
this Policy is achieved. In addition, the President, acting through the
Executive Vice President and Chief Operating Officer, shall ensure that, where
feasible and appropriate to do so, the following specific policies pertaining
to the acquisition of buildings or land for capital projects are carried out.
A. Environmental and Land Use Considerations.
It is the policy of the University to reasonably cooperate
with each locality affected by the acquisition. Such cooperation shall
include but not be limited to furnishing any information that the locality may
reasonably request and reviewing any requests by the locality with regard to
any such acquisition. The University shall consider the zoning and
comprehensive plan designation by the locality of the building or land and
surrounding parcels, as well as any designation by State or federal agencies of
historically or archeologically significant areas on the land. Nothing
herein shall be construed as requiring the University to comply with local
zoning laws and ordinances.
B. Infrastructure and Site Condition.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall ensure that, in the case of capital projects
involving the acquisition of buildings or land, the project management systems
implemented under Section XIII below provide for a review of the following
matters prior to acquisition of the building or land: that any land can be developed
for its intended purpose without extraordinary cost; that an environmental
engineer has been engaged by the University to provide an assessment of any
environmental conditions on the land; that there is adequate vehicular ingress
and egress to serve the contemplated use of the building or land; that
utilities and other services to the land are adequate or can reasonably be
provided or have been provided in the case of building acquisitions; and that
the condition and grade of the soils have been examined to determine if any
conditions exist that would require extraordinary site work or foundation
systems.
C. Title and Survey.
A survey shall be prepared for any real property acquired,
and an examination of title to the real property shall be conducted by a
licensed attorney or, in the alternative, a commitment for title insurance
shall be procured from a title insurance company authorized to do business in
the Commonwealth. Based upon the survey and title examination or report,
the President, acting through the Executive Vice President and Chief Operating
Officer, shall conclude, prior to acquisition of the real property, that title
thereto will be conveyed to the University in fee simple, free and clear of all
liens, encumbrances, covenants, restrictions, easements or other matters that
may have a significant adverse effect upon the University's ability to own,
occupy, convey or develop the real property.
D. Appraisal.
An appraisal shall be conducted of the real property to be
acquired to determine its fair market value and the consistency of the fair
market value with the price agreed upon by the University.
XII. BUILDING OR LAND DISPOSITIONS.
The Board of Visitors shall approve the disposition of any
building or land. Disposition of land or buildings, the acquisition or
construction of which was funded entirely or in part by a general fund
appropriation of the General Assembly or proceeds from State Tax Supported
Debt, shall require both Board of Visitors approval and other approvals in
accordance with general law applicable to State-owned property and with the
University’s Enabling Legislation.
XIII. PROJECT MANAGEMENT SYSTEMS.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall implement one or more systems for the
management of capital projects for the University. The systems may
include the delegation of project management authority to appropriate
University officials, including a grant of authority to such officials to
engage in further delegation of authority as the President, acting through the
Executive Vice President and Chief Operating Officer, deems appropriate.
The project management systems for capital projects shall
be designed to ensure that such projects comply with the provisions of this Policy
and other Board of Visitors policies applicable to closely related subjects
such as selection of architects or policies applicable to University buildings
and grounds.
The project management systems may include one or more
reporting systems applicable to capital projects whereby University officials
responsible for the management of such projects provide appropriate and timely
reports to the President, acting through the Executive Vice President and Chief
Operating Officer, on the status of such projects during construction.
XIV. REPORTING REQUIREMENTS.
In addition to complying with any internal reporting
systems contained in the University’s project management systems, as described
in Section XIII above, the University shall comply with State reporting
requirements for those Major Capital Projects funded entirely or in part by a
general fund appropriation by the General Assembly or State Tax Supported
Debt. Additionally, if any capital project constructs improvements on
land, or renovates property, that originally was acquired or constructed in
whole or in part with a general fund appropriation for that purpose or proceeds
from State Tax Supported Debt, and such improvements or renovations are
undertaken entirely with funds not appropriated by the General Assembly and, if
the cost of such improvements or renovations is reasonably expected to exceed
two million dollars, the decision to undertake such improvements or renovations
shall be communicated as required by § 23-38.109 C 3 of the Act. As a
matter of routine, the President, acting through the Executive Vice President
and Chief Operating Officer, shall report to the Department of General Services
on the status of such capital projects at the initiation of the project, prior
to the commencement of construction, and at the time of acceptance of any such
capital project.
EXHIBIT N
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE UNIVERSITY OF VIRGINIA
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING
LEASES OF REAL PROPERTY
THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA
POLICY GOVERNING LEASES OF REAL PROPERTY
I. PREAMBLE.
In 1996 the Board of Visitors adopted a Policy Statement
Governing Exercise of Autonomy in Leases of Property for certain leases entered
into by the University, which was amended in 2003 as the Policy Statement
Governing Exercise of Autonomy in Operating and Capital Leases of
Property. The Restructured Higher Education Financial and Administrative
Operations Act (the Act), Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of the
Code of Virginia, provides that, upon becoming a Covered Institution, the
University of Virginia may have the authority to establish its own system for
the leasing of real property. The University’s system for implementing
this authority is to be governed by policies adopted by the Board of
Visitors. The following provisions of this Policy constitute the adopted
Board of Visitors policies regarding Leases of real property entered into by
the University.
This Policy is intended to cover the authority that may be
granted to the University pursuant to Subchapter 3 of the Act. Any other
powers and authorities granted to the University pursuant to the Appropriation
Act, or any other sections of the Code of Virginia, including other provisions
of the Act and the University's Enabling Legislation, as defined in § 23-38.89
of the Act, are not affected by this Policy. In particular, other powers
and authorities granted to the University of Virginia Medical Center by law, to
the extent they exceed those granted to the University pursuant to Subchapter 3
of the Act, are not affected by this Policy.
II. DEFINITIONS.
The following words and terms, when used in this Policy,
shall have the following meaning unless the context clearly indicates
otherwise:
“Academic Division” means that part of the University known
as (State Agency 207).
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of
the Code of Virginia.
“Board of Visitors” means the Rector and Visitors of the University of Virginia.
“Capital Lease” means a lease that is defined as such
within Generally Accepted Accounting Principles pursuant to the pronouncement
of the Financial Accounting Standards Board.
“College” means that part of the University operated as the
University of Virginia’s College at Wise, also known as (State Agency 246).
“Covered Institution” means a public institution of higher
education of the Commonwealth of Virginia that has entered into a Management
Agreement with the Commonwealth to be governed by Subchapter 3 of the Act.
“Expense Lease” means an Operating Lease of real property
under the control of another entity to the University.
“Income Lease” means an Operating Lease of real property
under the control of the University to another entity.
“Lease” or “Leases” means any type of lease involving real
property.
“Medical Center” means that part of the University
consisting of the University of Virginia Medical Center, known as (State Agency
209), and related health care and health maintenance facilities.
“Operating Lease” means any lease involving real property,
or improvements thereon, that is not a Capital Lease.
“University” means the University of Virginia, consisting
of the Academic Division, the College, and the Medical Center.
III. SCOPE OF POLICY.
This Policy provides guidance for the implementation of all
University Leases.
IV. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties
and responsibilities set forth in, and for the appropriate implementation of,
this Policy. Consistent with this full and ultimate accountability,
however, the Board may, pursuant to its legally permissible procedures,
specifically delegate either herein or by separate Board resolution the duties
and responsibilities set forth in this Policy to a person or persons within the
University, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the University’s usual delegation policies and procedures.
V. REQUIREMENTS FOR LEASES.
A. Factors to Be Considered When Entering into Leases.
All Leases shall be for a purpose consistent with the
mission of the University. The decision to enter into a Lease shall be
further based upon cost, demonstrated need, compliance with this Policy,
consideration of all costs of occupancy, and a determination that the use of
the property to be leased is necessary and is efficiently planned. Leases
shall also conform to the space planning procedures that may be adopted by the
President, acting through the Executive Vice President and Chief Operating
Officer, to ensure that the plan for the space to be leased is consistent with
the purpose for which the space is intended.
B. Competition to Be Sought to Maximum Practicable Degree.
Competition shall be sought to the maximum practicable
degree for all Leases. The President, acting through the Executive Vice
President and Chief Operating Officer, is authorized to ensure that Leases are
procured through competition to the maximum degree practicable and to determine
when, under guidelines that may be developed and adopted by the President,
acting through the Executive Vice President and Chief Operating Officer, it is
impractical to procure Leases through competition.
C. Approval of Form of Lease Required.
The form of Leases entered into by the University shall be
approved by the University’s legal counsel.
D. Execution of Leases.
All Leases entered into by the University shall be executed
only by those University officers or persons authorized by the President or the
Executive Vice-President and Chief Operating Officer, or as may subsequently be
authorized by the Board of Visitors, and subject to any such limits or
conditions as may be prescribed in the delegation of authority. Subject
to the University’s Policy Governing Capital Projects adopted by the Board as
part of the Management Agreement between the Commonwealth and the University,
no other University approval shall be required for leases or leasing, nor state
approval required except in the case of leases of real property as may be
governed by general state law in accordance with §§ 23-38.109 and 23-38.112 of
the Act.
E. Capital Leases.
The Board of Visitors shall authorize the initiation of
Capital Leases pursuant to the authorization process included in the Policy
Governing Capital Projects adopted by the Board as part of the Management
Agreement between the Commonwealth and the University.
F. Compliance with Applicable Law.
All Leases of real property by the University shall be
consistent with any requirements of law that are contained in the Act or are
otherwise applicable.
G. Certification of Occupancy.
All real property covered by an Expense Lease or leased by
the University under a Capital Lease shall be certified for occupancy by the
appropriate public body or building official.
EXHIBIT O
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE UNIVERSITY OF VIRGINIA
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION FINANCIAL AND
ADMINISTRATIVE OPERATIONS ACT OF 2005
POLICY GOVERNING
INFORMATION TECHNOLOGY
THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA
POLICY GOVERNING INFORMATION TECHNOLOGY
I. PREAMBLE.
The Restructured Higher Education Financial and
Administrative Operations Act (the Act), Chapter 4.10 (§ 23-38.88 et seq.) of
Title 23 of the Code of Virginia, provides, inter alia, that public
institutions of higher education in the Commonwealth of Virginia that have
entered into a Management Agreement with the Commonwealth “may be exempt from the
provisions governing the Virginia Information Technologies Agency, Chapter 20.1
(§ 2.2-2005 et seq.) of Title 2.2., and the provisions governing the
Information Technologies [sic] Investment Board, Article 20 of Chapter 24 (§
2.2-2457 et seq.) of Title 2.2 of the Code of Virginia; provided, however, that
the governing body of . . . [such] institution shall adopt, and . .
. [such] institution shall comply with, policies” that govern the exempted
provisions. See § 23-38.111 of the Code of Virginia. This
Information Technology Policy shall become effective upon the effective date of
a Management Agreement authorized by subsection D of § 23-38.88 and § 23-38.97
of the Act between the Commonwealth and the University that incorporates this
Policy.
The Board of Visitors of the University of Virginia is authorized to adopt this Information Technology Policy pursuant to § 23-38.111 of
the Code of Virginia.
II. DEFINITIONS.
As used in this Information Technology Policy, the
following terms have the following meanings, unless the context requires
otherwise:
“Academic Division” means that part of the University known
as (State Agency 207).
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of
the Code of Virginia.
“Board of Visitors” or “Board” means the Rector and Board
of Visitors of the University of Virginia.
“College” means that part of the University operated as the
University of Virginia’s College at Wise, also known as (State Agency 246).
“Information Technology” or “IT” shall have the same
meaning as set forth in § 2.2-2006 of the Code of Virginia as it currently
exists and from time to time may be amended.
“Major information technology project” or “major IT
project” shall have the same meaning as set forth in § 2.2-2006 of the Code of
Virginia as it currently exists and from time to time may be amended.
“Medical Center” means that part of the University
consisting of the University of Virginia Medical Center, known as (State Agency
209), and related health care and health maintenance facilities.
“Policy” means this Information Technology Policy adopted
by the Board of Visitors.
“State Chief Information Officer” or “State CIO” means the
Chief Information Officer of the Commonwealth of Virginia.
“University” means the University of Virginia, consisting
of the Academic Division, the College, and the Medical Center.
III. SCOPE OF POLICY.
This Policy is intended to cover and implement the
authority that may be granted to the University of Virginia pursuant to
Subchapter 3 (§ 23-38.91 et seq.) of the Act. This Policy is not intended
to affect any other powers and authorities granted to the University pursuant
to the Appropriation Act and the Code of Virginia, including other provisions
of the Act or the University’s enabling legislation as that term is defined in
§ 23-38.89 of the Act. In particular, other powers and authorities
granted to the University of Virginia Medical Center by law, to the extent they
exceed those granted to the University pursuant to Subchapter 3 of the Act, are
not affected by this Policy.
This Policy shall govern the University’s information
technology strategic planning, expenditure reporting, budgeting, project
management, infrastructure, architecture, ongoing operations, security, and
audits conducted within, by, or on behalf of the University. Upon the
effective date of a Management Agreement between the Commonwealth and the
University, as authorized by subsection D of § 23-38.88 and § 23-38.111, therefore,
the University shall be exempt from those provisions of the Code of Virginia,
including those provisions of Chapter 20.1 (§ 2.2-2005 et seq.) (Virginia
Information Technologies Agency) and of Article 20 (§ 2.2-2457 et seq.)
(Information Technology Investment Board) of Chapter 24 of Title 2.2 of the
Code of Virginia, that otherwise would govern the University’s information
technology strategic planning, expenditure reporting, budgeting, project
management, infrastructure, architecture, ongoing operations, security, and
audits conducted within, by, or on behalf of the University; provided, however,
that the University still shall be subject to those provisions of Chapter 20.1
(§ 2.2-2005 et seq.) (Virginia Information Technologies Agency) and of Article
20 (§ 2.2-2457 et seq.) (Information Technology Investment Board) of Chapter
24 of Title 2.2 of the Code of Virginia that are applicable to public
institutions of higher education of the Commonwealth and that do not govern
information technology strategic planning, expenditure reporting, budgeting,
project management, infrastructure, architecture, ongoing operations, security,
and audits within, by, or on behalf of the University.
The procurement of information technology and
telecommunications goods and services, including automated data processing
hardware and software, shall be governed by the Policy Governing the
Procurement of Goods, Services, Insurance, and Construction, and the
Disposition of Surplus Materials approved by the Board, and the Rules Governing
Procurement of Goods, Services, Insurance, and Construction that are
incorporated in and attached to that Policy.
IV. GENERAL PROVISIONS.
A. Board of Visitors Accountability and Delegation of
Authority.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties
and responsibilities set forth in, and for the appropriate implementation of,
this Policy. Consistent with this full and ultimate accountability,
however, the Board may, pursuant to its legally permissible procedures,
specifically delegate either herein or by separate Board resolution the duties
and responsibilities set forth in this Policy to a person or persons within the
University, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the University’s usual delegation policies and
procedures.
B. Strategic Planning.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall be responsible for overall IT strategic
planning at the University, which shall be linked to and in support of the
University’s overall strategic plan.
At least 45 days prior to each fiscal year, the President,
acting through the Executive Vice President and Chief Operating Officer, shall
make available the University’s IT strategic plan covering the next fiscal year
to the State CIO for his review and comment with regard to the consistency of
the University’s plan with the intent of the currently published overall
five-year IT strategic plan for the Commonwealth developed by the State CIO
pursuant to § 2.2-2007 of the Code of Virginia, and into which the University’s
plan is to be incorporated.
C. Expenditure Reporting and Budgeting.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall approve and be responsible for overall IT
budgeting and investments at the University. The University’s IT budget
and investments shall be linked to and in support of the University’s IT
strategic plan, and shall be consistent with general University policies, the
Board-approved annual operating budget, and other Board approvals for certain
procurements.
By October 1 of each year, the President, acting through
the Executive Vice President and Chief Operating Officer, shall make available
to the State CIO and the Information Technology Investment Board a report on
the previous fiscal year’s IT expenditures.
The University shall be specifically exempt from:
Subdivision A 4 of § 2.2-2007 of the Code of Virginia (review by the State CIO of IT budget requests), as it currently exists and from
time to time may be amended;
§§ 2.2-2022 through 2.2-2024 of the Code of Virginia (Virginia Technology Infrastructure Fund), as they currently exist and from time
to time may be amended; and
Any other substantially similar provision of the Code of Virginia governing IT expenditure reporting and budgeting, as it currently exists and from
time to time may be amended.
D. Project Management.
Pursuant to § 23-38.111 of the Act, the Board shall adopt
the project management policies, standards, and guidelines developed by the
Commonwealth or those based upon industry best practices for project management
as defined by leading IT consulting firms, leading software development firms,
or a nationally-recognized project management association, appropriately
tailored to the specific circumstances of the University. Copies of the
Board’s policies, standards, and guidelines shall be made available to the
Information Technology Investment Board.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall oversee the management of all University IT
projects. IT projects may include, but are not limited to, upgrades to
network infrastructure, provision of technology to support research, database
development, implementation of new applications, and development of IT services
for students, faculty, staff, and patients. Day-to-day management of
projects shall be the responsibility of appointed project directors and shall
be in accord with the project management policies, standards, and guidelines
adopted by the Board, as amended and revised from time to time.
On a quarterly basis, the President, acting through the
Executive Vice President and Chief Operating Officer, shall report to the
Information Technology Investment Board on the budget, schedule, and overall
status of the University’s major IT projects. This requirement shall not
apply to research projects, research initiatives, or instructional
programs.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall be responsible for decisions to
substantially alter a project’s scope, budget, or schedule after initial
approval.
The University shall be specifically exempt from:
§ 2.2-2008 of Title 2.2 of the Code of Virginia (additional
duties of the State CIO relating to project management), as it currently exists
and from time to time may be amended;
§§ 2.2-2016 through 2.2-2021 of Title 2.2 of the Code of
Virginia (Division of Project Management), as they currently exist and from
time to time may be amended; and
Any other substantially similar provision of the Code of Virginia governing IT project management, as it currently exists or from time to time may
be amended.
The State CIO and the Information Technology Investment
Board shall continue to have the authority regarding project suspension and
termination as provided in § 2.2-2015 and in subdivision A 3 of § 2.2-2458,
respectively, and the State CIO and the Information Technology Investment Board
shall continue to provide the University with reasonable notice of, and a
reasonable opportunity to correct, any identified problems before a project is
terminated.
E. Infrastructure, Architecture, Ongoing Operations, and
Security.
Pursuant to § 23-38.111 of the Act, the Board shall adopt
the policies, standards, and guidelines related to IT infrastructure,
architecture, ongoing operations, and security developed by the Commonwealth or
those of nationally-recognized associations, appropriately tailored to the
specific circumstances of the University. Copies of the policies shall be
made available to the Information Technology Investment Board.
The President, acting through the executive Vice President
and Chief Operating Officer, shall be responsible for implementing such
policies, standards, and guidelines adopted by the Board, as amended and
revised from time to time.
For purposes of implementing this Policy, the President
shall appoint an existing University employee to serve as a liaison between the
University and the State CIO.
F. Audits.
Pursuant to § 23-38.111 of the Act, the Board shall adopt
the policies, standards, and guidelines developed by the Commonwealth or those
based upon industry best practices for project auditing as defined by leading
IT experts, including consulting firms, or a nationally-recognized project
auditing association, appropriately tailored to the specific circumstances of
the University, which provide for Independent Validation and Verification
(IV&V) of the University’s major IT projects. Copies of the policies,
standards, and guidelines, as amended and revised from time to time, shall be
made available to the Information Technology Investment Board.
Audits of IT strategic planning, expenditure reporting,
budgeting, project management, infrastructure, architecture, ongoing
operations, and security, shall also be the responsibility of the University’s
Internal Audit Department and the Auditor of Public Accounts.
EXHIBIT P
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE UNIVERSITY OF VIRGINIA
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING
THE PROCUREMENT OF GOODS, SERVICES,
INSURANCE, AND CONSTRUCTION AND
THE DISPOSITION OF SURPLUS MATERIALS
THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA
POLICY GOVERNING THE PROCUREMENT OF
GOODS, SERVICES, INSURANCE AND CONSTRUCTION
AND THE DISPOSITION OF SURPLUS MATERIALS
I. PREAMBLE.
A. Chapters 995 and 933 of the 1996 Acts of Assembly (House
Bill No. 884 and Senate Bill No. 389, respectively) provided the University of Virginia with autonomy to conduct the procurement of goods and services,
including professional services, and construction, on behalf of the University of Virginia Medical Center. Pursuant thereto, in 1996 the Board of
Visitors adopted a Policy Statement Governing Exercise of Procurement Autonomy
by the University on behalf of the Medical Center. Subchapter 3 of the
Restructured Higher Education Financial and Administrative Operations Act (the
Act), Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of the Code of Virginia,
provides that the University of Virginia, upon becoming a Covered Institution,
shall be authorized to establish its own system for the procurement of goods,
services, insurance, and construction, and for the independent disposition of
surplus materials by public or private transaction.
B. The Act provides that a Covered Institution shall comply
with policies adopted by its Board of Visitors for the procurement of goods,
services, insurance, and construction, and the disposition of surplus
materials. The provisions of this Policy set forth below, together with
the Rules Governing Procurement of Goods, Services, Insurance, and Construction
attached to this Policy as Attachment 1, constitute the adopted Board of
Visitors policies required by the Act regarding procurement of goods, services,
insurance, and construction, and the disposition of surplus materials by the
University.
C. This Policy is intended to cover the authority that may
be granted to the University pursuant to Subchapter 3 of the Act. Any
other powers and authorities granted to the University pursuant to any other
sections of the Code of Virginia, including other provisions of the Act, the
Appropriation Act, and the University's Enabling Legislation are not affected
by this Policy. In particular, other powers and authorities granted to
the Medical Center by law, to the extent they exceed those granted to the
University pursuant to Subchapter 3 of the Act, are not affected by this
Policy.
II. DEFINITIONS.
As used in this Policy, the following terms shall have the
following meanings, unless the context requires otherwise:
“Academic Division” means that part of the University known
as (State Agency 207).
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of
the Code of Virginia.
“Agreement” means “Management Agreement.”
“Board of Visitors” means the Rector and Visitors of the University of Virginia.
“College” means that part of the University operated as the
University of Virginia’s College at Wise, also known as (State Agency 246).
“Covered Institution” means, on and after the Effective
Date of its initial Management Agreement with the Commonwealth, a public
institution of higher education of the Commonwealth of Virginia that has
entered into a Management Agreement with the Commonwealth to be governed by the
provisions of Subchapter 3 of the Act.
“Effective Date” means the effective date of the Management
Agreement.
“Enabling Legislation” means those chapters, other than
Chapter 4.10, of Title 23 of the Code of Virginia, as amended, creating,
continuing, or otherwise setting forth the powers, purposes, and missions of
the individual public institutions of higher education of the Commonwealth, and
as provided in §§ 2.2-2817.2, 2.2-2905, 51.1-126.3, and 51.1-1100 in the case
of the Medical Center.
“Existing Medical Center Policy Statement” means the Policy
Statement Governing Exercise of Procurement Autonomy by the University on
behalf of the Medical Center adopted in 1996 by the Board of Visitors for the Medical Center.
“Goods” means all material, equipment, supplies, and
printing, including information technology and telecommunications goods such as
automated data processing hardware and software.
“Management Agreement” means the agreement required by
subsection D of § 23-38.88 between the Commonwealth of Virginia and the University of Virginia.
“Medical Center” means that part of the University
consisting of the University of Virginia Medical Center, known as (State Agency
209), and related health care and health maintenance facilities.
“Rules” means the “Rules Governing Procurement of Goods,
Services, Insurance, and Construction” attached to this Policy as Attachment 1.
“Services” as used in this Policy 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, and shall include both professional services, which
include the practice of accounting, actuarial services, law, dentistry,
medicine, optometry, and pharmacy, and nonprofessional services, which include
any service not specifically identified as professional services.
“Surplus materials” means personal property including, but
not limited to, materials, supplies, equipment and recyclable items, that are
determined to be surplus by the University.
“University” means the University of Virginia, consisting
of the Academic Division, the College, and the Medical Center.
III. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties
and responsibilities set forth in, and for the appropriate implementation of,
this Policy. Consistent with this full and ultimate accountability,
however, the Board may, pursuant to its legally permissible procedures,
specifically delegate either herein or by separate Board resolution the duties
and responsibilities set forth in this Policy to a person or persons within the
University, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the University’s usual delegation policies and
procedures.
IV. GENERAL PROVISIONS.
A. Adoption of This Policy and Continued Applicability of
Other Board of Visitors' Procurement Policies.
The Academic Division and the College, through its
administrative relationship with the University, have had decentralization and
pilot program autonomy in many procurement functions and activities since the
Appropriation Act of 1994. Effective July 1, 1996, the University was
granted autonomy to establish a procurement system for the Medical Center, and the Board of Visitors approved the Existing Medical Center Policy
Statement. The Act extends and reinforces the autonomy previously granted
to the University in Item 330 E of the 1994 Appropriation Act. This
Policy therefore is adopted by the Board of Visitors to enable the University
to develop a procurement system for the Academic Division and the College, as
well as a surplus materials disposition system for the University as a whole,
and to continue the existing procurement system and policies of the Medical
Center. Any University electronic procurement system, other than the Medical Center’s electronic procurement system, shall integrate or interface with the
Commonwealth’s electronic procurement system.
This Policy shall be effective on the Effective Date of the
University’s initial Management Agreement with the Commonwealth. The
implementing policies and procedures adopted by the President, acting through
the Executive Vice President and Chief Operating Officer or his designee, to
implement this Policy shall continue to be subject to any other policies
adopted by the Board of Visitors affecting procurements at the University,
including policies regarding the nature and amounts of procurements that may be
undertaken without the approval of the Board of Visitors, or of the President,
acting through the Executive Vice President and Chief Operating Officer.
B. Scope and Purpose of University Procurement Policies.
This Policy shall apply to procurements of goods, services,
insurance, and construction. It shall be the policy of the University
that procurements conducted by the University result in the purchase of high
quality goods and services at reasonable prices, and that the University be
free, to the maximum extent permitted by law and this Policy, from constraining
policies that hinder the ability of the University to do business in a
competitive environment. This Policy, together with the Rules Governing
Procurement of Goods, Services, Insurance, and Construction attached to this
Policy as Attachment 1, shall apply to all procurements undertaken by the
University, regardless of the source of funds.
C. Collaboration, Communication, and Cooperation with the
Commonwealth.
The University is committed to developing, maintaining, and
sustaining collaboration, communication, and cooperation with the Commonwealth
regarding the matters addressed in this Policy, particularly with the Offices
of the Secretaries of Administration and Technology, the Department of General
Services, and the Virginia Information Technologies Agency. Identifying
business objectives and goals common to both the University and the
Commonwealth and the mechanisms by which such objectives and goals may be
jointly pursued and achieved are among the desired outcomes of such
collaboration, communication, and cooperation.
D. Commitment to Statewide Contracts, Electronic
Procurement, and SWAM Participation and Use.
The University is committed to maximizing its internal
operational efficiencies, economies of scale among institutions of higher
education, and the leveraged buying power of the Commonwealth as a whole.
Consistent with this commitment, the University:
i) May purchase from and participate in all statewide
contracts for goods and services, including information technology goods and
services, except that the University shall purchase from and participate in
contracts for communications services and telecommunications facilities entered
into by the Virginia Information Technologies Agency pursuant to § 2.2-2011 of
the Code of Virginia, unless an exception is provided in the Appropriation Act
or by other law, and provided that orders not placed through statewide
contracts shall be processed directly or by integration or interface through
the Commonwealth’s electronic procurement system;
ii) Shall use directly or by integration or interface the
Commonwealth’s electronic procurement system and comply with the business plan
for the Commonwealth’s electronic procurement system, as modified by an
agreement between the Commonwealth and the University, which agreement shall
not be substantially different that the agreement attached to this Policy as
Attachment 2; and
iii) Shall adopt a small, woman-owned, and minority-owned
(SWAM) business program that is consistent with the Commonwealth’s SWAM
program.
E. Implementation.
To effect its implementation under the Act, and if the
University remains in continued substantial compliance with the terms and
conditions of this Management Agreement with the Commonwealth pursuant to §
23-38.88(D)(4) and the requirements of Chapter 4.10 of the Act, the
University’s procurement of goods, services, insurance, and construction, and
the disposition of surplus materials shall be exempt from the Virginia Public
Procurement Act, Chapter 43 (§ 2.2-4300 et seq.) of Title 2.2, except § 2.2-4342
and §§ 2.2-4367 through 2.2-4377; the oversight of the Virginia Information
Technologies Agency, Chapter 20.1 (§ 2.2-2005 et. seq.) of Title 2.2, and the
Information Technology Investment Board, Article 20 (§ 2.2-2457 et seq.) of
Chapter 24 of Title 2.2; the state agency requirements regarding disposition of
surplus materials and distribution of proceeds from the sale or recycling of
surplus materials in §§ 2.2-1124 and 2.2-1125; the requirement to purchase from
the Department for the Blind and Vision Impaired (VIB) (§ 2.2-1117); and any
other state statutes, rules, regulations or requirements relating to the
procurement of goods, services, insurance, and construction, including but not
limited to Article 3 (§ 2.2-1109 et seq.) of Chapter 11 of Title 2.2, regarding
the duties, responsibilities and authority of the Division of Purchases and
Supply of the Virginia Department of General Services, and Article 4 (§
2.2-1129 et seq.) of Chapter 11 of Title 2.2 of the Code of Virginia, regarding
the review and the oversight by the Division of Engineering and Buildings of
the Virginia Department of General Services of contracts for the construction
of University capital projects and construction-related professional services
(§ 2.2-1132).
V. UNIVERSITY PROCUREMENT POLICIES.
A. General Competitive Principles.
In connection with University procurements and the
processes leading to award of contracts for goods, services, insurance, and
construction, the University is committed to:
Seeking competition to the maximum practical degree, taking
into account the size of the anticipated procurement, the term of the resulting
contract and the likely extent of competition;
Conducting all procurements in an open, fair and impartial
manner and avoiding any impropriety or the appearance of any impropriety;
Making procurement rules clear in advance of any
competition;
Providing access to the University's business to all
qualified vendors, firms and contractors, with no potential bidder or offeror
excluded arbitrarily or capriciously, while allowing the flexibility to engage
in cooperative procurements and to meet special needs of the University;
Ensuring that specifications for purchases are fairly drawn
so as not to favor unduly a particular vendor; and
Providing for the free exchange of information between the
University, vendors, firms or contractors concerning the goods or services
sought and offered while preserving the confidentiality of proprietary
information.
B. Access to Records.
Procurement records shall be available to citizens or to
interested persons, firms or corporations in accordance with the provisions of
the Virginia Freedom of Information Act, Chapter 37 (§ 2.2-3700 et seq.) of
Title 2.2 of the Code of Virginia, except those records exempt from disclosure
pursuant to § 2.2-3705.1 (7), 2.2-3705.1 (12), or 2.2-3705.4 (4), or other
applicable exemptions of the Virginia Freedom of Information Act, and §
2.2-4342 of the Virginia Public Procurement Act.
C. Cooperative Procurements and Alliances.
In circumstances where the University determines and
documents that statewide contracts for goods and services, including
information technology and telecommunications goods and services, do not
provide goods and services to the University that meet its business goals and
objectives, the University is authorized to participate in cooperative
procurements with other public or private organizations or entities, including
other educational institutions, public-private partnerships, public bodies,
charitable organizations, health care provider alliances and purchasing
organizations, so long as the resulting contracts are procured competitively
pursuant to subsections A through J of § 5 of the Rules Governing Procurement
of Goods, Services, Insurance, and Construction attached to this Policy as
Attachment 1 and the purposes of this Policy will be furthered. In the
event the University engages in a cooperative contract with a private
organization or public-private partnership and the contract was not
competitively procured pursuant to subsections A through J of § 5 of the Rules
Governing Procurement of Goods, Services, Insurance, and Construction attached
to this Policy as Attachment 1, use of the contract by other state agencies,
institutions and public bodies shall be prohibited. Notwithstanding all
of the above, use of cooperative contracts shall conform to the business
requirements of the Commonwealth’s electronic procurement system, including the
requirement for payment of applicable fees. By October 1 of each year,
the President, acting through the Executive Vice President and Chief Operating
Officer, shall make available to the Secretaries of Administration and
Technology, the Joint Legislative Audit and Review Commission, and the Auditor
of Public Accounts a list of all cooperative contracts and alliances entered
into or used during the prior fiscal year.
D. Training; Ethics in Contracting.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall take all necessary and reasonable steps to
assure (i) that all University officials responsible for and engaged in
procurements authorized by the Act and this Policy are knowledgeable regarding
the requirements of the Act, this Policy, and the Ethics in Public Contracting
provisions of the Virginia Public Procurement Act, Article 6 (§ 2.2-4367 et
seq.) of Chapter 43 of Title 2.2 of the Code of Virginia, (ii) that only
officials authorized by this Policy and any procedures adopted by the
President, acting through the Executive Vice President and Chief Operating
Officer, to implement this Policy are responsible for and engaged in such
procurements, and (iii) that compliance with the Act and this Policy are
achieved.
The University shall maintain an ongoing program to provide
professional development opportunities to its buying staff and to provide
methods training to internal staff who are engaged in placing decentralized
small purchase transactions.
E. Ethics and University Procurements.
In implementing the authority conferred by this Policy, the
personnel administering any procurement shall adhere to the following
provisions of the Code of Virginia: the Ethics in Public Contracting
provisions of the Virginia Public Procurement Act, Article 6 (§ 2.2-4367 et
seq.) of Chapter 43 of Title 2.2 of the Code of Virginia, the State and Local
Government Conflict of Interests Act, Chapter 31 (§ 2.2-3100 et seq.) of Title
2.2, and the Virginia Governmental Frauds Act, Article 1.1 (§ 18.2-498.1 et
seq.) of Chapter 12 of Title 18.2.
VI. UNIVERSITY SURPLUS MATERIALS POLICY AND
PROCEDURES.
The policy and procedures for disposal for surplus
materials shall provide for the sale, environmentally-appropriate disposal, or
recycling of surplus materials by the University and the retention of the
resulting proceeds by the University.
VII. ADOPTION AND EFFECTIVE DATES OF RULES AND IMPLEMENTING
POLICIES AND PROCEDURES.
The President, acting through the Executive Vice President
and Chief Operating Officer or his designee, shall adopt one or more
comprehensive sets of specific procurement policies and procedures for the
Academic Division and the College, which, in addition to the Rules, implement
applicable provisions of law and this Policy. University procurements
shall be carried out in accordance with this Policy, the Rules, and any
implementing policies and procedures adopted by the University. The
implementing policies and procedures (i) shall include the delegation of
procurement authority by the Board to appropriate University officials who
shall oversee University procurements of goods, services, insurance, and
construction, including a grant of authority to such officials to engage in
further delegation of authority as the President deems appropriate, and (ii)
shall remain consistent with the competitive principles set forth in Part V
above.
Any implementing policies and procedures adopted pursuant
to Part VII A above and the Rules shall become effective on the Effective Date
of the University’s initial Management Agreement with the Commonwealth, and, as
of their effective date, shall be applicable to all procurements undertaken by
the University on behalf of the University for goods, services, insurance, and
construction. This Policy, the Rules, and any implementing policies and
procedures adopted by the University shall not affect existing contracts
already in effect.
The Rules and University implementing policies and
procedures for all University procurements of goods, services, insurance, and
construction, and the disposition of surplus property shall be substantially
consistent with the Commonwealth of Virginia Purchasing Manual for Institutions
of Higher Education and their Vendors in their form as of the effective date of
this Policy and as amended or changed in the future, and with University
procedures specific to the Acquisition of Goods and Services. The Rules
and University implementing policies and procedures shall implement a system of
competitive negotiation, and competitive sealed bidding when appropriate, for
goods, services, including professional services as defined in the Rules,
insurance, and construction.
VIII. REQUIREMENTS FOR RULES AND IMPLEMENTING POLICIES AND
PROCEDURES.
A. Protests, Appeals and Debarment.
The Rules and University implementing policies and
procedures for procurements other than capital outlay shall include a process
or processes for an administrative appeal by vendors, firms or
contractors. Protests and appeals may challenge determinations of vendor,
firm or contractor non-responsibility or ineligibility, or the award of
contracts, provided that such protests and appeals are filed within the times
specified by the Rules. Remedies available shall be limited to reversal
of the action challenged or, where a contract already being performed is
declared void, compensation for the cost of performance up to the time of such
declaration. The Rules and University implementing policies and
procedures also may establish the basis and process for debarment of any
vendor, firm or contractor.
B. Prompt Payment of Contractors and Subcontractors.
The Rules and University implementing policies and
procedures shall include provisions related to prompt payment of outstanding
invoices, which shall include payment of interest on properly-presented
invoices outstanding more than seven (7) days beyond the payment date, at a
rate no higher than the lowest prime rate charged by any commercial bank as
published in the Wall Street Journal. The payment date shall be the later
of thirty (30) days from the date of the receipt of goods or invoice, or the
date established by the contract. All contracts also shall require prompt
payment of subcontractors by the general contractor, upon receipt of payment by
the University.
C. Types of Procurements.
The Rules and University implementing policies and
procedures shall implement a system of competitive negotiation for professional
services, as defined in the Rules, and shall implement purchasing procedures
developed to maximize competition given the size and duration of the contract,
and the needs of the University. Such policies and procedures may include
special provisions for procurements such as emergency procurements, sole source
procurements, brand name procurements, small purchases, procurements in which
only one qualified vendor responds, and others.
D. Approval and Public Notice of Procurements.
The Rules and University implementing policies and
procedures shall provide for approval of solicitation documents by an
authorized individual and for reasonable public notice of procurements, given
the size and nature of the need and the applicability of any Virginia Freedom
of Information Act exemption.
E. Administration of Contracts.
The Rules and University implementing policies and
procedures shall contain provisions related to the administration of contracts,
including contract claims, modifications, extensions and assignments.
F. Non-Discrimination.
The Rules and University implementing policies and
procedures shall provide for a non-discriminatory procurement process that
prohibits discrimination because of race, religion, color, sex or national
origin of the bidder or offeror in the solicitation and award of contracts; and
shall include appropriate provisions to effectuate fair and reasonable
consideration of women-owned, minority-owned and small businesses and to promote
and encourage a diversity of suppliers.
ATTACHMENT 1
Rules Governing Procurement of Goods, Services, Insurance,
and Construction
by a Public Institution of Higher Education of the Commonwealth of Virginia
Governed by Subchapter 3 of the
Restructured Higher Education Financial and Administrative
Operations Act,
Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of the Code of
Virginia
In accordance with the provisions of the Restructured
Higher Education Financial and Administrative Operations Act (the Act), Chapter
4.10 (§ 23-38.88 et seq.) of Title 23 of the Code of Virginia, and in
particular § 23-38.110 of the Act, the governing body of a public institution
of higher education of the Commonwealth of Virginia that has entered into a
Management Agreement with the Commonwealth pursuant to Subchapter 3 of the Act
has adopted the following Rules Governing Procurement of Goods, Services,
Insurance, and Construction to govern the procurement of goods, services,
insurance, and construction by the Institution, excluding the University of
Virginia Medical Center:
§ 1. Purpose. –
The purpose of these Rules is to enunciate the public
policies pertaining to procurement of good, services, insurance, and
construction by the Institution from nongovernmental sources, to include
governmental procurement that may or may not result in monetary consideration
for either party. These Rules shall apply whether the consideration is
monetary or nonmonetary and regardless of whether the Institution, the
contractor, or some third party is providing the consideration.
§ 2. Scope of Procurement Authority. –
Subject to these Rules, and the Institution’s continued
substantial compliance with the terms and conditions of its Management
Agreement with the Commonwealth pursuant to § 23-38.88(D)(4) and the
requirements of Chapter 4.10 of the Act, the Institution shall have and shall
be authorized to have and exercise all of the authority relating to procurement
of goods, services, insurance, and construction, including but not limited to
capital outlay-related procurement and information technology-related
procurement, that Institutions are authorized to exercise pursuant to
Subchapter 3 of the Restructuring Act.
§ 3. Competition is the Priority. –
To the end that the Institution shall obtain high quality
goods and services at reasonable cost, that all procurement procedures be
conducted in an open, fair and impartial manner with avoidance of any
impropriety or appearance of impropriety, that all qualified vendors have
access to the Institution’s business and that no offeror be arbitrarily or
capriciously excluded, it is the intent of the governing body of the
Institution that competition be sought to the maximum feasible degree, that
procurement procedures involve openness and administrative efficiency, that
individual public bodies enjoy broad flexibility in fashioning details of such
competition, that the rules governing contract awards be made clear in advance
of the competition, that specifications reflect the procurement needs of the
purchasing body rather than being drawn to favor a particular vendor, and that
the purchaser and vendor freely exchange information concerning what is sought
to be procured and what is offered. The Institution may consider best
value concepts when procuring goods and nonprofessional services, but not
construction or professional services. Professional services will be
procured using a qualification-based selection process. 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.
§ 4. Definitions. –
As used in these Rules:
“Affiliate” means an individual or business that controls,
is controlled by, or is under common control with another individual or
business. A person controls an entity if the person owns, directly or
indirectly, more than 10% of the voting securities of the entity. For the
purposes of this definition “voting security” means a security that (i) confers
upon the holder the right to vote for the election of members of the board of
directors or similar governing body of the business or (ii) is convertible
into, or entitles the holder to receive, upon its exercise, a security that
confers such a right to vote. A general partnership interest shall be
deemed to be a voting security.
“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 the Institution’s needs.
“Business” means any type of corporation, partnership,
limited liability company, association, or sole proprietorship operated for
profit.
“Competitive negotiation” is a method of contractor
selection that includes the following elements:
1. Issuance of a written Request for Proposal
indicating in general terms that which is sought to be procured, specifying the
factors that will be used in evaluating the proposal and containing or
incorporating by reference the other applicable contractual terms and
conditions, including any unique capabilities or qualifications that will be
required of the contractor.
2. Public notice of the Request for Proposal at least
10 days prior to the date set for receipt of proposals by publication in a
newspaper or newspapers of general circulation in the area in which the
contract is to be performed so as to provide reasonable notice to the maximum
number of offerors that can be reasonably anticipated to submit proposals in
response to the particular request. Public notice also shall be published
on the Department of General Services’ central electronic procurement website
and may be published on other appropriate websites. In addition,
proposals may be solicited directly from potential contractors.
3. a. Procurement of professional services. The
procurement of professional services for capital projects shall be conducted
using a qualification-based selection process. The Institution 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. The
Request for Proposal shall not, however, request that offerors furnish
estimates of man-hours or cost for services. At the discussion stage, the
Institution may discuss nonbinding estimates of total project costs, including,
but not limited to, life-cycle costing, and where appropriate, nonbinding
estimates of price for services. Proprietary information from competing
offerors shall not be disclosed to the public or to competitors. At the
conclusion of discussion, outlined in this subdivision, on the basis of
evaluation factors published in the Request for Proposal and all information
developed in the selection process to this point, the Institution 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 with the offeror ranked first.
If a contract satisfactory and advantageous to the Institution 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, and so on until such a contract can be negotiated at a fair and
reasonable price. Should the Institution 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.
A contract for architectural or professional engineering
services relating to construction projects may be negotiated by the
Institution, for multiple projects provided (i) the projects require similar
experience and expertise, and (ii) the nature of the projects is clearly
identified in the Request for Proposal. 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 be as set in the Request for Proposal; and (c) the project fee of
any single project shall not exceed the term limit as set in the Request for
Proposal. Any unused amounts from any contract term may be carried
forward. Competitive negotiations for such contracts may result in awards to
more than one offeror provided the Request for Proposal stated the potential
for a multi-vendor award.
Multiphase professional services contracts satisfactory and
advantageous to the Institution for environmental, location, design and
inspection work regarding construction of infrastructure 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
Institution 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 such Institution require awarding the contract.
b. Procurement of other than professional
services. 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 Request for Proposal, including price if so
stated in the Request for Proposal. Negotiations shall then be conducted with
each of the offerors so selected. Price shall be considered, but need not be
the sole determining factor. After negotiations have been conducted with
each offeror so selected, the Institution shall select the offeror which, in
its opinion, has made the best proposal, and shall award the contract to that
offeror. When the terms and conditions of multiple awards are so provided
in the Request for Proposal, awards may be made to more than one offeror.
Should the Institution determine in writing and in its sole discretion that
only one offeror has made the best proposal, a contract may be negotiated and
awarded to that offeror.
“Competitive sealed bidding” is a method of contractor
selection, other than for professional services, which includes the following
elements:
1. Issuance of a written Invitation to Bid containing
or incorporating by reference the specifications and contractual terms and
conditions applicable to the procurement. Unless the Institution has provided
for prequalification of bidders, the Invitation to Bid shall 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, an Invitation to Bid may be issued requesting the submission
of unpriced offers to be followed by an Invitation to Bid limited to those
bidders whose offers have been qualified under the criteria set forth in the
first solicitation.
2. Public notice of the Invitation to Bid at least 10
days prior to the date set for receipt of bids by publication on the Department
of General Services’ central electronic procurement website. Public
notice also may be published in a newspaper of general circulation or on other
appropriate websites, or both. In addition, bids may be solicited
directly from potential contractors. Any additional solicitations shall
include businesses selected from a list made available by the Department of
Minority Business Enterprise.
3. Public opening and announcement of all bids
received.
4. Evaluation of bids based upon the requirements set
forth in the invitation, which may include special qualifications of potential
contractors, 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. When the terms and conditions of multiple awards are so provided in the
Invitation to Bid, awards may be made to more than one bidder.
“Construction” means building, altering, repairing,
improving or demolishing any structure, building or highway, and any draining,
dredging, excavation, grading or similar work upon real property.
“Construction management contract” means 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.
“Covered Institution” or “Institution” means, on and after
the effective date of the initial management agreement with the Commonwealth of Virginia, a public institution of higher education of the Commonwealth
that has entered into a management agreement with the Commonwealth to be
governed by the provisions of Subchapter 3 of the Restructuring Act.
“Design-build contract” means a contract between the
Institution and another party in which the party contracting with the
Institution agrees to both design and build the structure, roadway or other
item specified in the contract.
“Goods” means all material, equipment, supplies, and
printing, including information technology and telecommunications goods such as
automated data processing hardware and software.
“Informality” means a minor defect or variation of a bid or
proposal from the exact requirements of the Invitation to Bid, or the Request
for Proposal, which does not affect the price, quality, quantity or delivery
schedule for the goods, services or construction being procured.
“Multiphase professional services contract” means a
contract for the providing of professional services where the total scope of
work of the second or subsequent phase of the contract cannot be specified
without the results of the first or prior phase of the contract.
“Nonprofessional services” means any services not
specifically identified as professional services in the definition of
professional services and includes small construction projects valued not over
$1 million; provided that subdivision 3a of the definition of “competitive
negotiation” in this section shall still apply to professional services for
such small construction projects.
“Potential bidder or offeror” for the purposes of §§ 50 and
54 of these Rules means a person who, at the time the Institution 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 the 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.
“Professional services” means work performed by an
independent contractor within the scope of the practice of accounting,
actuarial services, architecture, land surveying, landscape architecture, law,
dentistry, medicine, optometry, pharmacy or professional engineering.
“Public body” means any legislative, executive or judicial
body, 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 these Rules.
“Public contract” means an agreement between the
Institution and a nongovernmental source that is enforceable in a court of law.
“Responsible bidder” or “offeror” means a person who has
the capability, in all respects, to perform fully the contract requirements and
the moral and business integrity and reliability that will assure good faith
performance, and who has been prequalified, if required.
“Responsive bidder” means a person who has submitted a bid
that conforms in all material respects to the Invitation to Bid.
“Restructuring Act” or “Act” means the Restructured Higher
Education Financial and Administrative Operations Act, Chapter 4.10 (§ 23-38.88
et seq.) of Title 23 of the Code of Virginia.
“Rules” means these Rules Governing Procurement of Goods,
Services, Insurance, and Construction adopted by the governing body of the
Covered Institution.
“Reverse auctioning” means a procurement method wherein
bidders are invited to bid on specified goods or nonprofessional services
through real-time electronic bidding, with the award being made to the lowest
responsive and responsible bidder. During the bidding process, bidders’
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.
“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.
“Sheltered workshop” means a work-oriented rehabilitative
facility with a controlled working environment and individual goals that
utilizes work experience and related services for assisting the handicapped
person to progress toward normal living and a productive vocational status.
§ 5. Methods of procurement. –
A. All public contracts with nongovernmental
contractors for the purchase or lease of goods, or for the purchase of
services, insurance, or construction, shall be awarded after competitive sealed
bidding, or competitive negotiation as provided in this section, unless
otherwise authorized by law.
B. Professional services shall be procured by
competitive negotiation. Qualification-based selection shall be used for
design services.
C. Goods, services, or insurance may be procured by
competitive negotiation.
D. Construction may be procured only by competitive
sealed bidding, except that competitive negotiation may be used in the
following instances upon a determination made in advance by the Institution 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:
1. By the Institution on a fixed price design-build
basis or construction management basis under § 7;
2. By the Institution for the construction,
alteration, repair, renovation or demolition of buildings; or
3. By the Institution for the construction of
highways and any draining, dredging, excavation, grading or similar work upon
real property.
E. 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 writing shall document the basis for this
determination. The Institution shall issue a written notice 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. This notice shall be posted in a designated
public area, which may be the Department of General Services’ website for the
Commonwealth’s central electronic procurement system, or published in a
newspaper of general circulation on the day the Institution awards or announces
its decision to award the contract, whichever occurs first. Public notice
shall also be published on the Department of General Services' website for the
Commonwealth’s central electronic procurement system and may be published on
other appropriate websites.
F. In case of emergency, a contract may be awarded
without competitive sealed bidding or competitive negotiation; however, such
procurement shall be made with such competition as is practicable 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 contract
file. The Institution shall issue a written notice stating that the contract is
being awarded on an emergency basis, and identifying that which is being
procured, the contractor selected, and the date on which the contract was or
will be awarded. This notice shall be posted in a designated public area, which
may be the Department of General Services’ website for the Commonwealth’s
central electronic procurement system, or published in a newspaper of general
circulation on the day the Institution awards or announces its decision to
award the contract, whichever occurs first, or as soon thereafter as is
practicable. Public notice may also be published on the Department of General
Services' website for the Commonwealth’s central electronic procurement system
and other appropriate websites.
G. The Institution may establish purchase procedures,
if adopted in writing, not requiring competitive sealed bids or competitive
negotiation for single or term contracts for goods and services other than
professional services if the aggregate or the sum of all phases is not expected
to exceed $50,000; however, such small purchase procedures shall provide for competition
wherever practicable.
H. The Institution may establish purchase procedures,
if adopted in writing, not requiring competitive negotiation for single or term
contracts for professional services if the aggregate or the sum of all phases
is not expected to exceed $50,000; however such small purchase procedures shall
provide for competition wherever practicable.
I. Upon a determination made in advance by the
Institution and set forth in writing that the purchase of goods, products or
commodities from a public auction sale is in the best interests of the public,
such items may be purchased at the auction, including online public auctions.
The writing shall document the basis for this determination.
J. The purchase of goods or nonprofessional services,
but not construction or professional services, may be made by reverse
auctioning.
§ 6. Cooperative procurement. –
A. In circumstances where the Institution determines
and documents that statewide contracts for goods and services, including
information technology and telecommunications goods and services, do not
provide goods and services to the Institution that meet its business goals and
objectives, the Institution is authorized to participate in, sponsor, conduct,
or administer a cooperative procurement arrangement on behalf of or in
conjunction with public bodies, public or private health or educational
institutions, other public or private organizations or entities, including
public-private partnerships, charitable organizations, health care provider
alliances or purchasing organizations or entities, or with public agencies or
institutions or group purchasing organizations of the several states,
territories of the United States, or the District of Columbia, for the purpose
of combining requirements to effect cost savings or reduce administrative
expense in any acquisition of goods and services, other than professional
services. The Institution may purchase from any authority, department,
agency, institution, city, county, town, or other political subdivision of the
Commonwealth'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. In such instances, deviation from the procurement procedures set
forth in these Rules and the administrative policies and procedures established
to implement these Rules shall be permitted. Notwithstanding all of the
above, use of cooperative contracts shall conform to the business requirements
of the Commonwealth’s electronic procurement system, including the requirement
for payment of applicable fees. Nothing herein shall prohibit the payment
by direct or indirect means of any administrative fee that will allow for
participation in any such arrangement.
B. In circumstances where statewide contracts for
goods and services, including information technology and telecommunications
goods and services, do not provide goods and services to meet the Institution’s
business goals and objectives, and as authorized by the United States Congress
and consistent with applicable federal regulations, and provided the terms of
the contract permit such purchases:
1. The Institution may purchase goods and
nonprofessional services, from a United States General Services Administration
contract or a contract awarded by any other agency of the United States
government; and
2. The Institution may purchase telecommunications
and information technology goods and nonprofessional services from a United
States General Services Administration contract or a contract awarded by any
other agency of the United States government.
§ 7. Design-build or construction management
contracts authorized. –
A. Notwithstanding any other provisions of law, the
Institution may enter into contracts on a fixed price design-build basis or
construction management basis in accordance with the provisions of this
section.
B. Procurement of construction by the design-build or
construction management method shall be a two-step competitive negotiation
process. In the first step, offerors shall be requested to submit their
qualifications. Based upon the information submitted and any other
relevant information which the Commonwealth may obtain, no more than five
offerors deemed most suitable for the project shall be selected by the
Commonwealth and requested to submit proposals.
§ 8. Modification of the contract. –
A. A contract awarded by the Institution may include
provisions for modification of the contract during performance, but no
fixed-price contract may be increased by more than 25% of the amount of the
contract or $50,000, whichever is greater, without the advance written approval
of the Institution’s president or his designee. 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.
B. The Institution may extend the term of an existing
contract for services to allow completion of any work undertaken but not
completed during the original term of the contract.
C. Nothing in this section shall prevent the
Institution from placing greater restrictions on contract modifications.
§ 9. Discrimination prohibited; participation of
small, women- and minority-owned business. –
A. In the solicitation or awarding of contracts, the
Institution shall not discriminate against a bidder or offeror because of race,
religion, color, sex, national origin, age, disability, or any other basis
prohibited by state law relating to discrimination in employment.
Whenever solicitations are made, the Institution shall include businesses
selected from a list made available by the Department of Minority Business Enterprise.
B. The Institution shall establish programs
consistent with this section to facilitate the participation of small
businesses and businesses owned by women and minorities in procurement
transactions. The programs established shall be in writing and shall
include cooperation with the Department of Minority Business Enterprise, the United States Small Business Administration, and other public or private agencies.
The Institution shall submit annual progress reports on minority business
procurement to the Department of Minority Business Enterprise.
C. Whenever there exists (i) a rational basis for
small business enhancement or (ii) a persuasive analysis that documents a
statistically significant disparity between the availability and utilization of
women- and minority-owned businesses, the Governor is by law authorized and
encouraged to require the Institution to implement appropriate enhancement or
remedial measures consistent with prevailing law.
D. In the solicitation or awarding of contracts, the
Institution shall not discriminate against a bidder or offeror because the
bidder or offeror employs ex-offenders unless it has made a written
determination that employing ex-offenders on the specific contract is not in
its best interest.
§ 10. Employment discrimination by contractor
prohibited; required contract provisions. –
The Institution shall include in every contract of more
than $10,000 the following provisions:
1. During the performance of this contract, the
contractor agrees as follows:
a. The contractor will not discriminate against any
employee or applicant for employment because of race, religion, color, sex,
national origin, age, disability, 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 law, rule or regulation shall be deemed sufficient
for the purpose of meeting the requirements of this section.
2. The contractor will include the provisions of the
foregoing paragraphs a, b and c in every subcontract or purchase order of over
$10,000, so that the provisions will be binding upon each subcontractor or
vendor.
§ 11. Drug-free workplace to be maintained by
contractor; required contract provisions. –
The Institution shall include in every contract over
$10,000 the following provisions:
During the performance of this 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 or purchase order 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 connection
with a specific contract awarded to a contractor in accordance with these
Rules, 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.
§ 12. Use of brand names. –
Unless otherwise provided in the Invitation to Bid, the
name of a certain brand, make or manufacturer shall not restrict bidders to the
specific brand, make or manufacturer named and shall be deemed to convey the
general style, type, character, and quality of the article desired. Any
article that the Institution 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.
§ 13. Comments concerning specifications. –
The Institution shall establish procedures whereby
comments concerning specifications or other provisions in Invitations to Bid or
Requests for Proposal can be received and considered prior to the time set for
receipt of bids or proposals or award of the contract.
§ 14. Prequalification generally; prequalification
for construction. –
A. 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 procedure shall be established in writing and sufficiently
in advance of its implementation to allow potential contractors a fair
opportunity to complete the process.
B. Any prequalification of prospective contractors for
construction by the Institution shall be pursuant to a prequalification process
for construction projects adopted by the Institution. The process shall be
consistent with the provisions of this section.
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 subject to the provisions of subsection D of § 34 of these Rules.
In all instances in which the Institution 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.
At least 30 days prior to the date established for
submission of bids or proposals under the procurement of the contract for which
the prequalification applies, the Institution 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.
A decision by the Institution denying prequalification
under the provisions of this subsection shall be final and conclusive unless the
contractor appeals the decision as provided in § 54 of these Rules.
C. The Institution may deny prequalification to any
contractor only if the Institution 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 Institution 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 10 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 Institution without good cause. If the Institution has not contracted
with a contractor in any prior construction contracts, the Institution 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 Institution may not utilize this provision
to deny prequalification unless the facts underlying such substantial
noncompliance were documented in writing in the prior construction project 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 10 years of a crime related to governmental or
nongovernmental construction or contracting, including, but not limited to, a
violation of (i) Article 6 (§ 2.2-4367 et seq.) of Chapter 43 of Title 2.2 of
the Code of Virginia, (ii) the Virginia Governmental Frauds Act (§ 18.2-498.1
et seq.), (iii) Chapter 4.2 (§ 59.1-68.6 et seq.) of Title 59.1, or (iv) 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
Institution in a timely manner any information requested by the Institution
relevant to subdivisions 1 through 6 of this subsection.
§ 15. Negotiation with lowest responsible bidder. –
Unless canceled or rejected, a responsive bid from the
lowest responsible bidder shall be accepted as submitted, except that if the
bid from the lowest responsible bidder exceeds available funds, the Institution
may negotiate with the apparent low bidder to obtain a contract price within
available funds. However, the negotiation may be undertaken only under
conditions and procedures described in writing and approved by the Institution
prior to issuance of the Invitation to Bid and summarized therein.
§ 16. Cancellation, rejection of bids; waiver of
informalities. –
A. An Invitation to Bid, a Request for Proposal, any
other solicitation, or any and all bids or proposals, may be canceled or
rejected. The reasons for cancellation or rejection shall be made part of
the contract file. The Institution shall not cancel or reject an
Invitation to Bid, a Request for Proposal, any other solicitation, bid or proposal
pursuant to this section solely to avoid awarding a contract to a particular
responsive and responsible bidder or offeror.
B. The Institution may waive informalities in bids.
§ 17. Exclusion of insurance bids prohibited. –
Notwithstanding any other provision of law, no insurer
licensed to transact the business of insurance in the Commonwealth or approved
to issue surplus lines insurance in the Commonwealth shall be excluded from
presenting an insurance bid proposal to the Institution in response to a
request for proposal or an invitation to bid. Nothing in this section shall
preclude the Institution from debarring a prospective insurer pursuant to § 18.
§ 18. Debarment. –
Prospective contractors may be debarred from contracting
for particular types of supplies, services, insurance or construction, for
specified periods of time. Any debarment procedure shall be established in
writing by the Institution. Any debarment procedure may provide for debarment
on the basis of a contractor’s unsatisfactory performance for the Institution.
§ 19. Purchase programs for recycled goods;
Institution responsibilities. –
A. The Institution may implement a purchase program
for recycled goods and may coordinate its efforts so as to achieve the goals
and objectives set forth in §§ 10.1-1425.6, 10.1-1425.7, and 10.1-1425.8 of the
Code of Virginia, and §§ 20 and 22 of these Rules.
B. The Department of Environmental Quality, with
advice from the Virginia Recycling Markets Development Council, shall advise
the Institution concerning the designation of recycled goods.
§ 20. Preference for Virginia products with recycled
content and for Virginia firms. –
A. In the case of a tie bid, preference shall be given to
goods produced in Virginia, goods or services or construction provided by
Virginia persons, firms or corporations; otherwise the tie shall be decided by
lot.
B. Whenever any bidder is a resident of any other state and
such state under its laws allows a resident contractor of that state a
preference, a like preference may be allowed by the Institution to the lowest
responsive and responsible bidder who is a resident of Virginia.
C. Notwithstanding the provisions of subsections A and B,
in the case of a tie bid in instances where goods are being offered, and existing
price preferences have already been taken into account, preference shall be
given to the bidder whose goods contain the greatest amount of recycled
content.
§ 21. Preference for Virginia coal used in the
Institution. –
In determining the award of any contract for coal to be
purchased for use in the Institution with state funds, the Institution shall
procure using competitive sealed bidding and shall award to the lowest
responsive and responsible bidder offering coal mined in Virginia so long as its
bid price is not more than 4% greater than the bid price of the low responsive
and responsible bidder offering coal mined elsewhere.
§ 22. Preference for recycled paper and paper products used
by the Institution. –
A. In determining the award of any contract for paper
and paper products to be purchased for use by the Institution, it shall
competitively procure recycled paper and paper products of a quality suitable
for the purpose intended, so long as the price is not more than 10% greater
than the price of the low responsive and responsible bidder or offeror offering
a product that does not qualify under subsection B.
B. For purposes of this section, recycled paper and
paper products means any paper or paper products meeting the EPA Recommended
Content Standards as defined in 40 C.F.R. Part 247.
§ 23. Withdrawal of bid due to error. –
A. A bidder for a public construction contract, other
than a contract for construction or maintenance of public highways, may
withdraw his bid from consideration if the price bid was substantially lower
than the other bids due solely to a mistake in the bid, 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 his 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
that 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.
One of the following procedures for withdrawal of a bid
shall be selected by the Institution and stated in the advertisement for bids:
(i) the bidder shall give notice in writing of his claim of right to withdraw
his bid within two business days after the conclusion of the bid opening
procedure and shall submit original work papers with such notice; or (ii) the bidder
shall submit to the Institution or designated official his original work
papers, documents and materials used in the preparation of the bid within one
day after the date fixed for submission of bids. The work papers shall be
delivered by the bidder in person or by registered mail at or prior to the time
fixed for the opening of bids. In either instance, the work papers,
documents and materials may be considered as trade secrets or proprietary
information subject to the conditions of subsection F of § 34 of these
Rules. The bids shall be opened one day following the time fixed by the
Institution for the submission of bids. Thereafter, the bidder shall have
two 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 Institution until the two-hour period has elapsed. The
mistake shall be proved only from the original work papers, documents and
materials delivered as required herein.
B. The Institution may establish procedures for the
withdrawal of bids for other than construction contracts.
C. No bid shall be withdrawn under this section 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 5%.
D. If a bid is withdrawn in accordance with this
section, the lowest remaining bid shall be deemed to be the low bid.
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. If the Institution denies the withdrawal of a bid
under the provisions of this section, it shall notify the bidder in writing
stating 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.
§ 24. Contract Pricing Arrangements. –
A. Public contracts may be awarded on a fixed price
or cost reimbursement basis, or on any other basis that is not prohibited by
these Rules.
B. Except in case of emergency affecting the public
health, safety or welfare, no public contract shall be awarded on the basis of
cost plus a percentage of cost.
C. A policy or contract of insurance or prepaid
coverage having a premium computed on the basis of claims paid or incurred, plus
the insurance carrier’s administrative costs and retention stated in whole or
part as a percentage of such claims, shall not be prohibited by this section.
§ 25. Workers' compensation requirements for
construction contractors and subcontractors. –
A. No contractor shall perform any work on a
construction project of the Institution unless he (i) has obtained, and
continues to maintain for the duration of the work, workers' compensation
coverage required pursuant to the provisions of Chapter 8 (§ 65.2-800 et seq.)
of Title 65.2 of the Code of Virginia, and (ii) provides prior to the award of
contract, on a form furnished by the Institution, evidence of such coverage.
B. The Department of General Services shall provide
the form to the Institution. Failure of the Institution to provide the
form prior to the award of contract shall waive the requirements of clause (ii)
of subsection A.
C. No subcontractor shall perform any work on a
construction project of the Institution unless he has obtained, and continues
to maintain for the duration of such work, workers' compensation coverage
required pursuant to the provisions of Chapter 8 (§ 65.2-800 et seq.) of Title
65.2 of the Code of Virginia.
§ 26. Retainage on construction contracts. –
A. In any contract issued by the Institution for
construction that provides for progress payments in installments based upon an
estimated percentage of completion, the contractor shall be paid at least 95%
of the earned sum when payment is due, with no more than 5% being retained to
ensure faithful performance of the contract. All amounts withheld may be
included in the final payment.
B. Any subcontract for a public project that provides
for similar progress payments shall be subject to the provisions of this
section.
§ 27. Public construction contract provisions barring
damages for unreasonable delays declared void. –
A. Any provision contained in any public construction
contract of the Institution that purports to 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 the delay is caused by acts or omissions of
the Institution, its agents or employees and due to causes within their control
shall be void and unenforceable as against public policy.
B. Subsection A shall not be construed to render void
any provision of a public construction contract awarded by the Institution
that:
1. Allows the recovery of that portion of delay costs
caused by the acts or omissions of the contractor, or its subcontractors,
agents or employees;
2. Requires notice of any delay by the party claiming
the delay;
3. Provides for liquidated damages for delay; or
4. Provides for arbitration or any other procedure
designed to settle contract disputes.
C. A contractor making a claim against the
Institution for costs or damages due to the alleged delaying of the contractor
in the performance of its work under any public construction contract of the
Institution shall be liable to the Institution and shall pay it for a
percentage of all costs incurred by the Institution in investigating,
analyzing, negotiating, litigating and arbitrating the claim, which percentage
shall be equal to the percentage of the contractor's total delay claim that is
determined through litigation or arbitration to be false or to have no basis in
law or in fact.
D. If the Institution denies 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 for the Institution,
it 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 Institution shall be equal to
the percentage of the contractor's total delay claim for which the
Institution's denial is determined through litigation or arbitration to have
been made in bad faith.
§ 28. Bid bonds. –
A. Except in cases of emergency, all bids or
proposals for construction contracts in excess of $1 million shall be
accompanied by a bid bond from a surety company selected by the bidder that is
authorized to do business in Virginia, as a guarantee that if the contract is
awarded to the bidder, he will enter into the contract for the work mentioned
in the bid. The amount of the bid bond shall not exceed 5% of the amount bid.
B. No forfeiture under a bid bond shall exceed the
lesser of (i) the difference between the bid for which the bond was written and
the next low bid, or (ii) the face amount of the bid bond.
C. Nothing in this section shall preclude the
Institution from requiring bid bonds to accompany bids or proposals for
construction contracts anticipated to be less than $1 million.
§ 29. Performance and payment bonds. –
A. Upon the award by the Institution of any (i)
public construction contract exceeding $1 million awarded to any prime
contractor or (ii) public construction contract exceeding $1 million 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 by the Institution, the contractor shall furnish to the Institution the
following bonds:
1. Except for transportation-related projects, 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, such bond shall be in a form and amount satisfactory to the
Institution.
2. 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.
"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.
B. 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.
C. The bonds shall be payable to the Commonwealth of Virginia naming also the Institution.
D. Each of the bonds shall be filed with the
Institution, or a designated office or official thereof.
E. Nothing in this section shall preclude the
Institution from requiring payment or performance bonds for construction
contracts below $1 million.
F. 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.
§ 30. 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 Institution’s General Counsel
or his equivalent, a bidder may furnish to the Institution 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 Institution equivalent
to a corporate surety's bond.
§ 31. Bonds on other than construction contracts. –
The Institution may require bid, payment, or performance
bonds for contracts for goods or services if provided in the Invitation to Bid
or Request for Proposal.
§ 32. Action on performance bond. –
No action against the surety on a performance bond shall be
brought by the Institution unless brought within one 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.
§ 33. Actions on payment bonds; waiver of right to
sue. –
A. Subject to the provisions of subsection B, any
claimant who has performed labor or furnished material in accordance with the
contract documents in furtherance of the work provided in any contract for
which a payment bond has been given, and who has not been paid in full before
the expiration of 90 days after the day on which the claimant performed the
last of the labor or furnished the last of the materials for which he claims
payment, may bring an action on the payment bond to recover any amount due him
for the labor or material. The obligee named in the bond need not be
named a party to the 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 180 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.
C. Any action on a payment bond shall be brought
within one year after the day on which the person bringing such action last
performed labor or last furnished or supplied materials.
D. 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.
§ 34. Public inspection of certain records. –
A. Except as provided in this section, 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.).
B. Cost estimates relating to a proposed procurement
transaction prepared by or for the Institution shall not be open to public
inspection.
C. 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 Institution 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.
D. 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 Institution decides
not to accept any of the proposals and to reopen the contract. Otherwise,
proposal records shall be open to public inspection only after award of the
contract.
E. Any inspection of procurement transaction records
under this section shall be subject to reasonable restrictions to ensure the
security and integrity of the records.
F. Trade secrets or proprietary information submitted
by a bidder, offeror or contractor in connection with a procurement transaction
or prequalification application submitted pursuant to subsection B of § 14
shall not be subject to the Virginia Freedom of Information Act (§ 2.2-3700 et
seq.); however, the bidder, offeror or contractor shall (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.
§ 35. Exemption for certain transactions. –
A. The provisions of these Rules shall not apply to:
1. The selection of services related to the
management and investment of the Institution’s endowment funds, endowment
income, or gifts pursuant to § 23-76.1. However, selection of these services
shall be governed by the Uniform Management of Institutional Funds Act (§
55-268.1 et seq.) as required by § 23-76.1.
2. The purchase of items for resale at retail
bookstores and similar retail outlets operated by the Institution. However,
such purchase procedures shall provide for competition where practicable.
3. Procurement of any construction or planning and
design services for construction by the Institution when (i) the planning,
design or construction is $50,000 or less or (ii) the Institution is obligated
to conform to procurement procedures that are established by federal statutes
or regulations, whether or not those federal procedures are in conformance with
the provisions of these Rules.
4. The University of Virginia Medical Center.
5. The purchase of goods and services by the
Institution when such purchases are made under a remedial plan established by
the Governor pursuant to subsection C of § 9 of these Rules.
B. 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 provisions of these Rules, the
Institution may comply with such federal requirements, notwithstanding the
provisions of these Rules, only upon the written determination of the
Institution’s President or his designee that acceptance of the grant or
contract funds under the applicable conditions is in the public interest.
Such determination shall state the specific provision of these Rules in conflict
with the conditions of the grant or contract.
§ 36. Permitted contracts with certain religious
organizations; purpose; limitations. –
A. The Opportunity Reconciliation Act of 1996, P.L.
104-193, authorizes public bodies to enter into contracts with faith-based
organizations for the purposes described in this section on the same basis as
any other nongovernmental source without impairing the religious character of
such organization, and without diminishing the religious freedom of the
beneficiaries of assistance provided under this section.
B. For the purposes of this section,
"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.
C. The Institution, in procuring goods or services,
or in making disbursements pursuant to this section, shall not (i) discriminate
against a faith-based organization on the basis of the organization's religious
character or (ii) impose conditions that (a) restrict the religious character
of the faith-based organization, except as provided in subsection F, or (b)
impair, diminish, or discourage the exercise of religious freedom by the
recipients of such goods, services, or disbursements.
D. The Institution shall ensure that all invitations
to bid, requests for proposals, contracts, and purchase orders prominently
display a nondiscrimination statement indicating that it does not discriminate
against faith-based organizations.
E. A faith-based organization contracting with the
Institution (i) shall not discriminate against any recipient of goods,
services, or disbursements made pursuant to a contract authorized by this
section on the basis of the recipient's religion, religious belief, refusal to
participate in a religious practice, or on the basis of race, age, color,
gender or national origin and (ii) shall be subject to the same rules as other
organizations that contract with public bodies to account for the use of the
funds provided; however, if the faith-based organization segregates public
funds into separate accounts, only the accounts and programs funded with public
funds shall be subject to audit by the Institution. Nothing in clause
(ii) shall be construed to supersede or otherwise override any other applicable
state law.
F. Consistent with the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996, P.L. 104-193, funds provided for
expenditure pursuant to contracts with public bodies shall not be spent for
sectarian worship, instruction, or proselytizing; however, this prohibition
shall not apply to expenditures pursuant to contracts, if any, for the services
of chaplains.
G. Nothing in this section shall be construed as
barring or prohibiting a faith-based organization from any opportunity to make
a bid or proposal or contract on the grounds that the faith-based organization
has exercised the right, as expressed in 42 U.S.C. (§ 2000e-1 et seq.), to
employ persons of a particular religion.
H. If an individual, who applies for or receives
goods, services, or disbursements provided pursuant to a contract between the
Institution and a faith-based organization, objects to the religious character
of the faith-based organization from which the individual receives or would
receive the goods, services, or disbursements, the Institution shall offer the
individual, within a reasonable period of time after the date of his objection,
access to equivalent goods, services, or disbursements from an alternative
provider.
The Institution shall provide to each individual who
applies for or receives goods, services, or disbursements provided pursuant to
a contract between the Institution and a faith-based organization a notice in
bold face type that states: "Neither the Institution's selection of a
charitable or faith-based provider of services nor the expenditure of funds
under this contract is an endorsement of the provider's charitable or religious
character, practices, or expression. No provider of services may discriminate
against you on the basis of religion, a religious belief, or your refusal to
actively participate in a religious practice. If you object to a particular
provider because of its religious character, you may request assignment to a
different provider. If you believe that your rights have been violated, please
discuss the complaint with your provider or notify the appropriate person as
indicated in this form."
§ 37. Exemptions from competition for certain
transactions. –
The Institution may enter into contracts without
competition, as that term is described in subsections A through J of § 5
(Methods of procurement) of these Rules, for:
1. The purchase of goods or services that are produced
or performed by or related to:
a. Persons, or in schools or workshops, under the
supervision of the Virginia Department for the Blind and Vision Impaired;
b. Nonprofit sheltered workshops or other nonprofit
organizations that offer transitional or supported employment services serving
the handicapped;
c. Private educational institutions; or
d. Other public educational institutions.
2. Speakers and performing artists;
3. Memberships and Association dues;
4. Sponsored research grant sub-awards and contract
sub-awards, not to include the purchase of goods or services by the
Institution;
5. Group travel in foreign countries;
6. Conference facilities and services;
7. Participation in intercollegiate athletic
tournaments and events including team travel and lodging, registration and
tournament fees;
8. Royalties; or
9. The purchase of legal services, provided that the
Office of the Attorney General has been consulted, or expert witnesses or other
services associated with litigation or regulatory proceedings.
§ 38. Exemptions from competitive sealed bidding and
competitive negotiation for certain transactions; limitations. –
The Institution may enter into contracts for insurance or
electric utility service without competitive sealed bidding or competitive
negotiation if purchased through an association of which the Institution 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 Institution 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.
§ 39. Definitions. –
As used in §§ 39 through 46, unless the context requires a
different meaning:
"Contractor" means the entity that has a direct
contract with the Institution.
"Debtor" means any individual, business, or group
having a delinquent debt or account with any state agency that obligation has
not been satisfied or set aside by court order or discharged in bankruptcy.
"Payment date" means either (i) the date on which
payment is due under the terms of a contract for provision of goods or
services; or (ii) if such date has not been established by contract, (a) 30
days after receipt of a proper invoice by the Institution or its agent or (b)
30 days after receipt of the goods or services by the Institution.
"Subcontractor" means any entity that has a
contract to supply labor or materials to the contractor to whom the contract
was awarded or to any subcontractor in the performance of the work provided for
in such contract.
§ 40. Exemptions. –
The provisions of §§ 39 through 46 shall not apply to the
late payment provisions contained in any public utility tariffs prescribed by
the State Corporation Commission.
§ 41. Retainage to remain valid. –
Notwithstanding the provisions of §§ 39 through 46, the
provisions of § 26 relating to retainage shall remain valid.
§ 42. Prompt payment of bills by the Institution. –
A. The Institution shall promptly pay for the
completely delivered goods or services by the required payment date.
Payment shall be deemed to have been made when offset
proceedings have been instituted, as authorized under the Virginia Debt
Collection Act (§ 2.2-4800 et seq.).
B. Separate payment dates may be specified for
contracts under which goods or services are provided in a series of partial
deliveries or executions to the extent that such contract provides for separate
payment for such partial delivery or execution.
§ 43. Defect or impropriety in the invoice or goods
and/or services received. –
In instances where there is a defect or impropriety in an
invoice or in the goods or services received, the Institution shall notify the
supplier of the defect or impropriety, if the defect or impropriety would
prevent payment by the payment date. The notice shall be sent within 15
days after receipt of the invoice or the goods or services.
§ 44. Date of postmark deemed to be date payment is
made. –
In those cases where payment is made by mail, the date of
postmark shall be deemed to be the date payment is made for purposes of these
Rules.
§ 45. Payment clauses to be included in contracts. –
Any contract awarded by the Institution shall include:
1. A payment clause that obligates the contractor to
take one of the two following actions within seven days after receipt of
amounts paid to the contractor by the Institution for work performed by the
subcontractor under that contract:
a. Pay the subcontractor for the proportionate share
of the total payment received from the Institution attributable to the work
performed by the subcontractor under that contract; or
b. Notify the Institution and subcontractor, in
writing, of his intention to withhold all or a part of the subcontractor's
payment with the reason for nonpayment.
2. A payment clause that requires (i) individual
contractors to provide their social security numbers and (ii) proprietorships,
partnerships, and corporations to provide their federal employer identification
numbers.
3. An interest clause that obligates the contractor
to pay interest to the subcontractor on all amounts owed by the contractor that
remain unpaid after seven days following receipt by the contractor of payment
from the Institution for work performed by the subcontractor under that
contract, except for amounts withheld as allowed in subdivision 1.
4. An interest rate clause stating, "Unless
otherwise provided under the terms of this contract, interest shall accrue at
the rate of 1% per month."
Any such contract awarded shall further require the
contractor to include in each of its subcontracts a provision requiring each
subcontractor to include or otherwise be subject to the same payment and
interest requirements with respect to each lower-tier subcontractor.
A contractor's obligation to pay an interest charge to a
subcontractor pursuant to the payment clause in this section shall not be
construed to be an obligation of the Institution. A contract modification
shall not be made for the purpose of providing reimbursement for the interest
charge. A cost reimbursement claim shall not include any amount for
reimbursement for the interest charge.
§ 46. Interest penalty; exceptions. –
A. Interest shall accrue, at the rate determined pursuant
to subsection B, on all amounts owed by the Institution to a vendor that remain
unpaid after seven days following the payment date. However, nothing in this
section shall affect any contract providing for a different rate of interest,
or for the payment of interest in a different manner.
B. The rate of interest charged the Institution
pursuant to subsection A shall be the base rate on corporate loans (prime rate)
at large United States money center commercial banks as reported daily in the
publication entitled The Wall Street Journal. Whenever a split prime rate
is published, the lower of the two rates shall be used. However, in no
event shall the rate of interest charged exceed the rate of interest
established pursuant to § 58.1-1812 of the Code of Virginia.
C. Notwithstanding subsection A, no interest penalty
shall be charged when payment is delayed because of disagreement between the
Institution and a vendor regarding the quantity, quality or time of delivery of
goods or services or the accuracy of any invoice received for the goods or
services. The exception from the interest penalty provided by this
subsection shall apply only to that portion of a delayed payment that is
actually the subject of the disagreement and shall apply only for the duration
of the disagreement.
D. This section shall not apply to § 26 pertaining to
retainage on construction contracts, during the period of time prior to the
date the final payment is due. Nothing contained herein shall prevent a
contractor from receiving interest on such funds under an approved escrow
agreement.
E. Notwithstanding subsection A, no interest penalty
shall be paid to any debtor on any payment, or portion thereof, withheld
pursuant to the Comptroller's Debt Setoff Program, as authorized by the
Virginia Debt Collection Act (§ 2.2-4800 et seq. of the Code of Virginia),
commencing with the date the payment is withheld. If, as a result of an
error, a payment or portion thereof is withheld, and it is determined that at
the time of setoff no debt was owed to the Commonwealth, then interest shall
accrue at the rate determined pursuant to subsection B on amounts withheld that
remain unpaid after seven days following the payment date.
§ 47. Ineligibility. –
A. Any bidder, offeror or contractor refused
permission to participate, or disqualified from participation, in public
contracts to be issued by the Institution shall be notified in writing.
Prior to the issuance of a written determination of disqualification or
ineligibility, the Institution 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.
Within 10 business days after receipt of the notice, the
bidder may submit rebuttal information challenging the evaluation. The
Institution shall issue its written determination of disqualification or
ineligibility based on all information in the possession of the Institution,
including any rebuttal information, within five business days of the date the
Institution received such rebuttal information.
If the evaluation reveals that the bidder, offeror or
contractor should be allowed permission to participate in the public contract,
the Institution shall cancel the proposed disqualification action. If the
evaluation reveals that the bidder should be refused permission to participate,
or disqualified from participation, in the public contract, the Institution
shall so notify the bidder, offeror or contractor. The notice shall state
the basis for the determination, which shall be final unless the bidder appeals
the decision within 10 days after receipt of the notice by invoking
administrative procedures meeting the standards of § 55 of these Rules, if
available, or in the alternative by instituting legal action as provided in §
54.
B. If, upon appeal, it is determined that the action
taken was arbitrary or capricious, or not in accordance with the Constitution
of Virginia, applicable state law or regulations, the sole relief shall be
restoration of eligibility.
§ 48. Appeal of denial of withdrawal of bid. –
A. A decision denying withdrawal of bid under the
provisions of § 23 of these Rules shall be final and conclusive unless the
bidder appeals the decision within 10 days after receipt of the decision by
invoking administrative procedures meeting the standards of § 55, if available,
or in the alternative by instituting legal action as provided in § 54.
B. If no bid bond was posted, a bidder refused
withdrawal of a bid under the provisions of § 23, prior to appealing, shall
deliver to the Institution 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) 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.
§ 49. Determination of nonresponsibility. –
A. Following public opening and announcement of bids
received on an Invitation to Bid, the Institution shall evaluate the bids in
accordance with element 4 of the definition of "Competitive sealed
bidding" in § 4 of these Rules. At the same time, the Institution
shall determine whether the apparent low bidder is responsible. If the
Institution so determines, then it may proceed with an award in accordance with
element 5 of the definition of "Competitive sealed bidding" in §
4. If the Institution determines that the apparent low bidder is not
responsible, it shall proceed as follows:
1. Prior to the issuance of a written determination
of nonresponsibility, the Institution shall (i) notify the apparent low bidder
in writing of the results of the evaluation, (ii) disclose the factual support
for the determination, and (iii) allow the apparent low 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. Within 10 business days after receipt of the
notice, the bidder may submit rebuttal information challenging the
evaluation. The Institution shall issue its written determination of
responsibility based on all information in the possession of the Institution,
including any rebuttal information, within five business days of the date the
Institution received the rebuttal information. At the same time, the Institution
shall notify, with return receipt requested, the bidder in writing of its
determination.
3. Such notice shall state the basis for the
determination, which shall be final unless the bidder appeals the decision
within 10 days after receipt of the notice by invoking administrative
procedures meeting the standards of § 55 of these Rules, if available, or in
the alternative by instituting legal action as provided in § 54.
The provisions of this subsection shall not apply to
procurements involving the prequalification of bidders and the rights of any
potential bidders under such prequalification to appeal a decision that such
bidders are not responsible.
B. If, upon appeal pursuant to § 54 or 55 of these
Rules, it is determined that the decision of the Institution was not (i) an
honest exercise of discretion, but rather was arbitrary or capricious or (ii)
in accordance with the Constitution of Virginia, applicable state law or
regulation, or the terms or conditions of the Invitation to Bid, and the award
of the contract in question has not been made, the sole relief shall be a
finding that the bidder is a responsible bidder for the contract in question or
directed award as provided in subsection A of § 54, or both.
If it is determined that the decision of the Institution
was not an honest exercise of discretion, but rather was arbitrary or
capricious or not in accordance with the Constitution of Virginia, applicable
state law or regulation, or the terms or conditions of the Invitation to Bid,
and an award of the contract has been made, the relief shall be as set forth in
subsection B of § 54 of these Rules.
C. A bidder contesting a determination that he is not
a responsible bidder for a particular contract shall proceed under this
section, and may not protest the award or proposed award under the provisions
of § 50 of these Rules.
D. Nothing contained in this section shall be
construed to require the Institution, when procuring by competitive
negotiation, to furnish a statement of the reasons why a particular proposal
was not deemed to be the most advantageous.
§ 50. Protest of award or decision to award. –
A. Any bidder or offeror, who desires to protest the
award or decision to award a contract shall submit the protest in writing to
the Institution, or an official designated by the Institution, no later than 10
days after the award or the announcement of the decision to award, whichever
occurs first. Public notice of the award or the announcement of the decision to
award shall be given by the Institution in the manner prescribed in the terms
or conditions of the Invitation to Bid or Request for Proposal. 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 the protest in the same manner no later than 10 days
after posting or publication of the notice of such contract as provided in § 5
of these Rules. 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 that are subject to
inspection under § 34 of these Rules, then the time within which the protest
shall be submitted shall expire 10 days after those records are available for
inspection by such bidder or offeror under § 34, or at such later time as
provided in this section. 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 Institution or designated official shall issue a decision in writing within
10 days stating the reasons for the action taken. This decision shall be
final unless the bidder or offeror appeals within 10 days of receipt of the
written decision by invoking administrative procedures meeting the standards of
§ 55 of these Rules, if available, or in the alternative by instituting legal
action as provided in § 54. Nothing in this subsection shall be construed to
permit a bidder to challenge the validity of the terms or conditions of the
Invitation to Bid or Request for Proposal. The use of Alternative Dispute
Resolution (ADR) shall constitute an administrative appeal procedure meeting the
standards of § 55 of these Rules.
B. If prior to an 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 Institution 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 enjoined. Where the award
has been made and performance has begun, the Institution 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.
C. Where the Institution, an official designated by
it, or an appeals board determines, after a hearing held following reasonable
notice to all bidders, that there is probable cause to believe that a decision
to award was based on fraud or corruption or on an act in violation of these
Rules, the Institution, designated official or appeals board may enjoin the
award of the contract to a particular bidder.
§ 51. Effect of appeal upon contract. –
Pending final determination of a protest or appeal, the
validity of a contract awarded and accepted in good faith in accordance with
these Rules shall not be affected by the fact that a protest or appeal has been
filed.
§ 52. Stay of award during protest. –
An award need not be delayed for the period allowed a
bidder or offeror to protest, but in the event of a timely protest as provided
in § 50 of these Rules, or the filing of a timely legal action as provided in §
54, no further action to award the contract shall 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.
§ 53. Contractual disputes. –
A. Contractual claims, whether for money or other
relief, shall be submitted in writing no later than 60 days after final
payment. However, written notice of the contractor's intention to file a
claim shall be given at the time of the occurrence or beginning of the work
upon which the claim is based. Nothing herein shall preclude a contract
from requiring submission of an invoice for final payment within a certain time
after completion and acceptance of the work or acceptance of the goods.
Pendency of claims shall not delay payment of amounts agreed due in the final
payment.
B. The Institution shall include in its contracts a
procedure for consideration of contractual claims. Such procedure, which
may be contained in the contract or may be specifically incorporated into the
contract by reference and made available to the contractor, shall establish a
time limit for a final decision in writing by the Institution. If the
Institution has established administrative procedures meeting the standards of
§ 55 of these Rules, such procedures shall be contained in the contract or
specifically incorporated in the contract by reference and made available to
the contractor. The Institution may require the submission of contractual
claims pursuant to any contract to Alternative Dispute Resolution (ADR) as an
administrative procedure.
C. A contractor may not invoke administrative
procedures meeting the standards of § 55 of these Rules, if available, or
institute legal action as provided in § 54, prior to receipt of the
Institution's decision on the claim, unless the Institution fails to render
such decision within the time specified in the contract.
D. The decision of the Institution shall be final and
conclusive unless the contractor appeals within six months of the date of the
final decision on the claim by the Institution by invoking administrative
procedures meeting the standards of § 55 of these Rules, if available, or in
the alternative by instituting legal action as provided in § 54.
§ 54. Legal actions. –
A. A bidder or offeror, actual or prospective, who is
refused permission or disqualified from participation in bidding or competitive
negotiation, or who is determined not to be a responsible bidder or offeror for
a particular contract, may bring an action in the appropriate circuit court
challenging that decision, which shall be reversed only if the petitioner
establishes that the decision was not (i) an honest exercise of discretion, but
rather was arbitrary or capricious; (ii) in accordance with the Constitution of
Virginia, applicable state law or regulation, or the terms or conditions of the
Invitation to Bid; or (iii) in the case of denial of prequalification, based
upon the criteria for denial of prequalification set forth in subsection B of §
14 of these Rules. In the event the apparent low bidder, having been
previously determined by the Institution to be not responsible in accordance
with § 4, is found by the court to be a responsible bidder, the court may
direct the Institution to award the contract to such bidder in accordance with
the requirements of this section and the Invitation to Bid.
B. A bidder denied withdrawal of a bid under § 23 of
these Rules may bring an action in the appropriate circuit court challenging
that decision, which shall be reversed only if the bidder establishes that the
decision of the Institution was not (i) an honest exercise of discretion, but
rather was arbitrary or capricious or (ii) in accordance with the Constitution
of Virginia, applicable state law or regulation, or the terms or conditions of
the Invitation to Bid.
C. A bidder, offeror or contractor, or a potential
bidder or offeror on a contract negotiated on a sole source or emergency basis
in the manner provided in § 5 of these Rules, whose protest of an award or
decision to award under § 50 of these Rules is denied, may bring an action in
the appropriate circuit court challenging a proposed award or the award of a
contract, which shall be reversed only if the petitioner establishes that the
proposed award or the award is not (i) an honest exercise of discretion, but
rather is arbitrary or capricious or (ii) in accordance with the Constitution
of Virginia, applicable state law or regulation, or the terms and conditions of
the Invitation to Bid or Request for Proposal.
D. If injunctive relief is granted, the court, upon
request of the Institution, shall require the posting of reasonable security to
protect the Institution.
E. A contractor may bring an action involving a
contract dispute with the Institution in the appropriate circuit court.
Notwithstanding any other provision of law, the Comptroller shall not be named
as a defendant in any action brought pursuant to these Rules or § 33.1-387 of the
Code of Virginia, except for disputes involving contracts of the Office of the
Comptroller or the Department of Accounts.
F. A bidder, offeror or contractor need not utilize
administrative procedures meeting the standards of § 55 of these Rules, if
available, but if those procedures are invoked by the bidder, offeror or
contractor, the procedures shall be exhausted prior to instituting legal action
concerning the same procurement transaction unless the Institution agrees
otherwise.
G. Nothing herein shall be construed to prevent the
Institution from instituting legal action against a contractor.
§ 55. Administrative appeals procedure. –
A. The Institution may establish an administrative
procedure for hearing (i) protests of a decision to award or an award, (ii)
appeals from refusals to allow withdrawal of bids, (iii) appeals from
disqualifications and determinations of nonresponsibility, and (iv) appeals
from decisions on disputes arising during the performance of a contract, or (v)
any of these. Such administrative procedure may include the use of
Alternative Dispute Resolution (ADR) or shall provide for a hearing before a
disinterested person or panel, the opportunity to present pertinent information
and the issuance of a written decision containing findings of fact. The
disinterested person or panel shall not be an employee of the governmental
entity against whom the claim has been filed. The findings of fact shall
be final and conclusive and shall not be set aside unless the same are (a) fraudulent,
arbitrary or capricious; (b) so grossly erroneous as to imply bad faith; or (c)
in the case of denial of prequalification, the findings were not based upon the
criteria for denial of prequalification set forth in subsection B of § 14 of
these Rules. No determination on an issue of law shall be final if
appropriate legal action is instituted in a timely manner. The
Institution may seek advice and input from the Alternative Dispute Resolution
Council in establishing an Alternative Dispute Resolution (ADR) procedure.
B. Any party to the administrative procedure,
including the Institution, shall be entitled to institute judicial review if
such action is brought within 30 days of receipt of the written decision.
§ 56. Alternative dispute resolution. –
The Institution may enter into agreements to submit
disputes arising from contracts entered into pursuant to these Rules to
arbitration and utilize mediation and other alternative dispute resolution
procedures. However, such procedures shall be nonbinding and subject to §
2.2-514 of the Code of Virginia, as applicable.
§ 57. Ethics in public contracting. –
The Institution and its governing body, officers and
employees shall be governed by the Ethics in Public Contracting provisions of
the Virginia Public Procurement Act, Article 6 (§ 2.2-4367 et seq.) of Chapter
43 of Title 2.2 of the Code of Virginia.
ATTACHMENT 2
Memorandum of Agreement
The Commonwealth of Virginia and the University of Virginia
ERP/SciQuest Implementation with eVA
The Commonwealth of Virginia (CoVA) and the University of Virginia (University) agree to the following:
I. The University will use ERP/SciQuest integration as best
fits its needs with its ERP system (Oracle).
II. Initially, all nonexempt orders produced by the
ERP/SciQuest integration will be transmitted to eVA through an ERP-to-eVA
interface that conforms to the existing eVA interface standard format.
Longer term a more real-time option may be mutually agreed by the Department of
General Services/Division of Purchasing and Supply (DGS/DPS) and the University
and implemented between the ERP and eVA systems.
III. The University may request that eVA contract vendors
provide a version of their contract catalog for loading into
ERP/SciQuest. Should the vendor indicate a preference to only provide its
catalog through eVA, then the University will access these catalogs as
described in item B8 of the Metrics section of this document. In
any event, the University shall be responsible for payment of all eVA
transaction fees for nonexempt orders to unregistered vendors and exempt orders
the University chooses to issue to unregistered and registered vendors through
eVA.
IV. eVA will load all nonexempt University orders into the
eVA Data Warehouse. For clarity, it is understood that exempt orders are
purchase transactions specifically exempted, in writing by DPS, from mandatory
processing through eVA.
V. In lieu of processing individual orders for requirements
through eVA, a more efficient administrative approach is to establish a blanket
or standing order. The University is authorized to use such an approach
where it makes good business sense. The University will ensure vendors
understand that eVA transaction fees will be invoiced at the time blanket or
standing orders are issued, that the transaction fee will be based on the total
order amount, and the vendor is required to pay the total transaction fee
within 30 days of the invoice date regardless of the performance/delivery
schedule specified in the order.
VI. eVA will deliver University nonexempt orders to vendors
that are identified as accepting electronic orders (Fax, Email, EDI,
cXML). The University or SciQuest will print/mail/deliver all other
orders to vendors. Whereas the University maintains a University specific
electronic vendor record that identifies vendors that do not agree to the eVA
terms and conditions, including payment of the eVA order transaction fee, the
University may deviate from the policy/procedure set forth in Section 3 of the
eVA Business Plan as follows:
A. For vendors that refuse to accept the eVA terms and
conditions, the University will transmit the appropriate R02, S02, E02, or P02
Purchase Order Category and a Purchase Order Comment that includes the
statement "Vendor refuses eVA terms and conditions." The University
agrees that it will pay the eVA transaction fees for these orders.
For vendors that agree to accept the eVA terms and
conditions, the University will transmit the appropriate R01, S01, E01, or P01
Purchase Order Category and a Purchase Order Comment that includes the
statement "Vendor accepts eVA terms and conditions – University eVA Vendor
Manager, e-mail address and phone number.” The University agrees that,
for these orders, it will resolve any vendor dispute related to payment of eVA
transaction fees by working directly with the vendor whether such vendor
contacts the university directly or the dispute is referred to the university
by DGS/DPS or CGI-AMS.
The University further agrees that:
1. It will provide the DGS/DPS eVA Business Manager (or
designee) email notification of the resolution agreed to by the University and
the vendor within 10 business days, unless otherwise agreed on a case-by-case
basis by the DGS/DPS eVA Business Manager (or designee);
2. It will pay the eVA transaction fee unless it notifies
the eVA Business Manager (or designee) within the specified time that the
dispute has been resolved and the vendor agreed to pay the fee; and
3. In the event the University does not provide resolution
notification to the eVA Business Manager (or designee) within the specified
timeframe, DGS/DPS will automatically execute a manual adjustment reversing
disputed transaction fees from the vendor to the University and the University
will pay the fee.
VII. The University will not require separate vendor
registrations as a prerequisite for responding to University
solicitations. The University will participate in an enterprise workgroup
to determine the best means to capture W-9 information on behalf of the whole
enterprise. The process for collecting W-9 information will be supported
in eVA in such a way as to provide CoVA verified vendor information to
entities. The University will have the option to receive a subset of
vendor related data. Until an enterprise W-9 process is established, the
University will be responsible for collection of W-9 information.
VIII. For major system changes, DGS/DPS will collaborate in
advance (advance notice defined as at least six (6) months prior to change or
as soon as any new plan is proposed) with the University regarding any proposed
replacement to the CoVA’s electronic procurement system and on changes that may
affect the technical changes described herein.
IX. Integration of the University’s electronic procurement
solution with the University’s ERP is the responsibility of the
University. The solution must provide for orders, change orders and
cancellations.
Guidelines
1. The establishment of this agreement is intended to
formulate the basis for a long-term solution for electronic procurement between
the University and the CoVA.
2. Orders may be batched and transmitted to eVA as often as
needed except between the hours of 8 p.m. and 4 a.m. eVA will transmit
registered vendor orders it receives within 15 minutes or less.
3. Nonexempt orders to unregistered vendors are to be
transmitted to eVA for loading to the Data Warehouse. The University
shall be responsible for payment of all eVA transaction fees for nonexempt
orders to unregistered vendors and exempt orders the University chooses to
issue to unregistered and registered vendors through eVA. See eVA
Business Plan Section 3 for specific processing requirements for unregistered
vendor orders.
4. Change Orders are to be transmitted to eVA as
replacement orders complying with the eVA standard format.
5. Cancellations are to be transmitted to eVA complying
with the eVA standard format.
6. eVA Interface standard does not currently support PCard
orders; however these orders may be processed via the interface as (a)
confirming orders or (b) orders for PCards on file with the vendor.
Schedule
The University shall implement this agreement no later than
December 2006.
Metrics
A. The University shall comply with the following
Governor’s eVA Management:
Objective
Ninety-five percent of all nonexempt orders to be processed
by eVA. Includes nonexempt orders issued by end users (PCard & LPO)
and the central purchasing office. Nonexempt orders to unregistered
vendors received into the eVA Data Warehouse are considered compliant
orders. For clarity, it is understood that exempt orders are purchase
transactions specifically exempted, in writing by DPS, from mandatory
processing through eVA. All nonexempt orders not processed by eVA shall be
reported on the eVA Dashboard and the corresponding non-use fee paid by the University.
B. The University shall meet the following management
objectives for electronic procurement:
1. Provide end users, including purchase-card users, access
to an electronic system for buying;
2. Conduct business with eVA registered vendors whenever
possible;
3. Place nonexempt orders, including change orders and
cancellations, to eVA suppliers electronically using eVA;
4. To the greatest extent possible, transmit real-time
electronic purchase orders, regardless of dollar value, that include commodity
codes, complete item descriptions, quantities, and unit prices;
5. To the greatest extent feasible, the University will
transmit confirming orders to eVA within five (5) business days after placing
the order. Commodity codes, complete item descriptions, quantities, and
unit prices will be provided for all confirming orders. DGS/DPS will
provide periodic reports on the number and timeliness of confirming orders
enabling the University and DGS/DPS to work together to monitor the usage of
confirming orders with the objective of reducing their numbers to the extent
possible.
The University agrees that, for confirming orders, it will
resolve any vendor dispute, including disputes related to payment of eVA
transaction fees, by working directly with the vendor whether such vendor
contacts the University directly or the dispute is referred to the University
by DGS/DPS or CGI-AMS.
The University further agrees that:
a. It will provide the DGS/DPS eVA Business Manager (or
designee) email notification of the resolution agreed to by the university and
the vendor within 10 business days, unless otherwise agreed on a case-by-case
basis by the DGS/DPS eVA Business Manager (or designee);
b. It will pay the eVA transaction fee unless it notifies
the eVA Business Manager (or designee) within the specified time that the
dispute has been resolved and the vendor agreed to pay the fee; and
c. In the event the University does not provide resolution
notification to the eVA Business Manager (or designee) within the specified
timeframe, DGS/DPS will automatically execute a manual adjustment reversing
disputed transaction fees from the vendor to the University and the University
will pay the fee.
6. Timely process electronic change orders and
cancellations;
7. Post all solicitations and business opportunities
greater than $50,000 on the eVA website except as specifically exempted by DPS;
8. To the extent technically feasible, make eVA catalogs,
especially contract catalogs, available to end users using the ERP/SciQuest
Integration system. The University will be responsible for the accuracy of
contract catalog pricing loaded into the ERP/SciQuest;
9. Use eVA electronic vendor notification for procurement
opportunities (per plans to post solicitations specified in item 7 above and
the use of Quick Quote/Reverse Auctions specified in item 10 below);
10. Use eVA on-line bidding functions of Quick Quote and
Reverse Auction for appropriate commodities, when such are identified;
11. Complete and certify the monthly eVA Dashboard Report;
and
12. Timely remit any eVA transaction and non-use fees
incurred by the institution.
C. The University shall be subject to eVA fees assessed per
the eVA Business Plan.
The University shall assure that payments to CGI-AMS are
current.
EXHIBIT Q
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE UNIVERSITY OF VIRGINIA
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION FINANCIAL AND
ADMINISTRATIVE OPERATIONS ACT OF 2005
POLICY GOVERNING
HUMAN RESOURCES FOR
PARTICIPATING COVERED EMPLOYEES
AND OTHER UNIVERSITY EMPLOYEE
THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA
POLICY GOVERNING HUMAN RESOURCES FOR
PARTICIPATING COVERED EMPLOYEES
AND OTHER UNIVERSITY EMPLOYEES
I. PREAMBLE.
Chapters 995 and 933 of the 1996 Acts of Assembly (House
Bill No. 884 and Senate Bill No. 389, respectively) grant the University of Virginia authority regarding the adoption of an alternative human resources
system and alternative retirement, health care and other insurance plans for University of Virginia Medical Center employees. Further, the Restructured Higher
Education Financial and Administrative Operations Act (the Act), Chapter 4.10
of Title 23 of the Code of Virginia, establishes a process for the
restructuring of institutions of higher education of the Commonwealth of
Virginia and provides that upon becoming a Covered Institution, the University
shall have responsibility and accountability for human resources management for
all University employees, defined in the Act as “Covered Employees,” who
pursuant to subsection A of § 23-38.114 of the Act “are state employees of” the
University. Specifically, the Act provides that, as of the Effective Date
of its initial Management Agreement with the Commonwealth, all Classified
Employees shall continue to be covered by the Virginia Personnel Act, Chapter
29 (§ 2.2-2900 et seq.) of Title 2.2 of the Code of Virginia, and shall be
subject to the policies and procedures prescribed by the Virginia Department of
Human Resource Management, provided that they may subsequently elect to become
Participating Covered Employees. All Participating Covered Employees
shall: (i) be exempt from the Virginia Personnel Act, Chapter 29 (§
2.2-2900 et seq.) of Title 2.2; (ii) remain subject to the state grievance
procedure for employees subject to the Virginia Personnel Act, Chapter 30 (§
2.2-3000 et seq.) of Title 2.2, provided they were subject to the state
grievance procedure prior to that Effective Date; (iii) participate in a
compensation plan that is subject to the review and approval of the Board of
Visitors; (iv) be hired pursuant to procedures that are based on merit and
fitness; and (v) may, subject to certain specified conditions, continue to
participate in either state- or University-sponsored benefit plans as described
by the Management Agreement.
The provisions of this Policy are adopted by the Board of
Visitors to implement the Governing Law and constitute the human resources
policies to be included in any human resources system adopted by the University
for its employees.
This Policy is intended to cover the authority that may be
granted to the University pursuant to Subchapter 3 of the Act. Any other
powers and authorities granted to the University pursuant to the Appropriation
Act, or any other sections of the Code of Virginia, including other provisions
of the Act and the University's Enabling Legislation, are not affected by this
Policy. In particular, other powers and authorities granted to the University of Virginia Medical Center by law, to the extent they exceed those granted to
the University pursuant to Subchapter 3 of the Act, are not affected by this
Policy Statement.
II. DEFINITIONS.
As used in this policy, the following terms shall have the
following meanings, unless the context requires otherwise:
“Academic Division” means that part of the University known
as (State Agency 207).
“Academic Division Human Resources System” means the human
resources system for Academic Division employees as provided for herein.
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 of Title 23 of the Code of Virginia.
“Board of Visitors” or “Board” means the Rector and Board
of Visitors of the University of Virginia.
“Classified Employees” means employees who are covered by
the Virginia Personnel Act, Chapter 29 (§ 2.2-2900 et seq.) of Title 2.2 of the
Code of Virginia, and the policies and procedures established by the Virginia
Department of Human Resource Management and who are not Participating Covered
Employees.
“College” means that part of the University operated as the
University of Virginia’s College at Wise (State Agency 246).
“College Human Resources System” means the human resources
system for College employees as provided for herein.
“Covered Employee” means any person who is employed by the
University on either a salaried or nonsalaried (wage) basis.
“Covered Institution” means, on and after the Effective
Date of its initial Management Agreement with the Commonwealth of Virginia, a
public institution of higher education of the Commonwealth that has entered
into a Management Agreement with the Commonwealth to be governed by the
provisions of Subchapter 3 of the Act.
“Employee” means Covered Employee unless the context
clearly indicates otherwise.
“Enabling Legislation” means those chapters, other than
Chapter 4.10, of Title 23 of the Code of Virginia, as amended, creating,
continuing, or otherwise setting forth the powers, purposes, and missions of
the University, and as provided in §§ 2.2-2817.2, 2.2-2905, 51.1-126.3, and
51.1-1100 in the case of the University of Virginia Medical Center.
“Effective Date” means the effective date of the initial
Management Agreement between the University and the Commonwealth.
“Existing Medical Center Policy Statement” means the Policy
Statement Governing the Exercise of Medical Center Personnel Autonomy adopted
by the Board of Visitors in 1996.
“Governing Law” means the Act and the University’s Enabling
Legislation.
“Management Agreement” means the agreement required by
subsection D of § 23-38.88 of the Act between the University and the
Commonwealth.
“Medical Center” means that part of the University
consisting of the University of Virginia Medical Center (State Agency 209), and
related health care and health maintenance facilities.
“Medical Center Human Resources System” means the human
resources system for Medical Center employees as provided for herein.
“Participating Covered Employee” means (i) all salaried
nonfaculty University employees who were employed as of the day prior to the
Effective Date of the University’s initial Management Agreement with the
Commonwealth, and who elect pursuant to § 23-38.115 of the Act to participate
in and be governed by such human resources program or programs, plans,
policies, and procedures established by [the Participating Institution], (ii)
all salaried nonfaculty University employees who are employed by the University
on or after the Effective Date of the initial Management Agreement between the
University and the Commonwealth, (iii) all nonsalaried nonfaculty University
employees without regard to when they were hired, (iv) all faculty University
employees without regard to when they were hired, and (v) all employees of the
University of Virginia Medical Center without regard to when they were hired.
“Systems” mean collectively the Academic Division Human
Resources System, the College Human Resources System, and the Medical Center Human Resources System that are in effect from time to time.
“University” means the University of Virginia, consisting
of the Academic Division, the College, and the Medical Center.
“University employee” means a Covered Employee.
III. SCOPE AND PURPOSE OF UNIVERSITY HUMAN RESOURCES
POLICIES.
The University has had human resources system autonomy
through decentralization and codified autonomy for its employees for some
time. For example, general faculty at the University are expressly exempt
from the Virginia Personnel Act. The Academic Division and the College
have had decentralization in most human resources functions and activities since
the late 1980s and early 1990s, including, but not limited to, the running of
payrolls; the administration of hiring, classification, and promotion
practices; the administration of separate health insurance and retirement
plans. Effective July 1, 1996, all Medical Center employees were exempted
from the Virginia Personnel Act and the policies and procedures of the Virginia
Department of Human Resource Management (formerly the Department of Personnel
and Training). The Board of Visitors approved the Existing Medical Center Policy Statement in 1996. A separate human resources system is in place
for all Medical Center employees, which the Board of Visitors hereby continues,
recognizing that the human resources needs of the Medical Center differ in
certain respects from those of the Academic Division and the College.
The Act extends and reinforces the human resources autonomy
previously granted to the University. This Policy therefore is adopted by
the Board of Visitors to enable the University to develop, adopt, and have in
place by or after the Effective Date of its initial Management Agreement with
the Commonwealth, a human resources system or systems for all University
employees in the Academic Division and the College, and to continue the
existing human resources system for Medical Center employees. On that
Effective Date, and until changed by the University or unless otherwise
specified in this Policy, the systems for University employees shall be the
same systems applicable to those employees in effect immediately prior to that
Effective Date.
IV. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties
and responsibilities set forth in, and for the appropriate implementation of,
this Policy. Consistent with this full and ultimate accountability,
however, the Board may, pursuant to its legally permissible procedures,
specifically delegate either herein or by separate Board resolution the duties
and responsibilities set forth in this Policy to a person or persons within the
University, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the University’s usual delegation policies and
procedures.
V. UNIVERSITY OF VIRGINIA HUMAN RESOURCES SYSTEMS.
A. Adoption and Implementation of Academic Division and
College Human Resources Systems for the Academic Division and the College;
Continuation of Medical Center Human Resources System for the Medical Center.
The President, acting through the Executive Vice President
and Chief Operating Officer, in consultation with the Vice President and
Provost, is hereby authorized to adopt and implement human resources systems
for employees of the Academic Division and for employees of the College that
implement and are consistent with the Governing Law, other applicable
provisions of law, these University human resources policies for Academic
Division and College employees, and any other human resources policies adopted
by the Department of Human Resource Management or the Board of Visitors for
University personnel, unless Academic Division employees or College employees
are exempted from those other human resources policies by law or policy.
The University Academic Division and College Human Resources Systems shall
include a delegation of personnel authority to appropriate University officials
responsible for overseeing and implementing the Academic Division and College
Human Resources Systems, including a grant of authority to such officials to
engage in further delegation of authority as the President or his designee
deems appropriate.
The University and the College commit to regularly engage
employees in appropriate discussions and to receive employee input as the new
Academic Division and College Human Resources Systems are developed. The
University and the College will regularly communicate the details of new proposals
to all employees who are eligible to participate in the new Academic Division
Human Resources System or the College Human Resources System through written
communication, open meetings, and website postings as appropriate, so that
employees will have full information that will help them evaluate the merits of
the new human resource system compared to the then-current State human resource
system.
Effective on the Effective Date of its initial Management
Agreement with the Commonwealth, and until amended as described below, the
University’s human resources systems shall consist of the following:
1. The current human resources system for “Academic
Division General Faculty” as posted on the Vice President and Provost’s web,
http://www.virginia.edu/provost/index.html, and periodically amended;
2. The current human resources system for “College General
Faculty” as included in the University of Virginia's College at Wise Faculty
Handbook 2004-05, as periodically amended;
3. The current human resources system for Classified
Employees in the Academic Division and the College as posted on the Virginia
Department of Human Resource Management website at
http://www.dhrm.state.va.us/hrpolicy/policy.html, and the University’s website
at http://www.hrs.virginia.edu/policies.html, as periodically amended;
4. The human resources system for Participating Covered
Employees, which shall include nonsalaried (wage) employees, as posted on the
University Human Resources website, www.hrs.virginia.edu, and periodically
amended; and
5. The current human resources system for Medical Center
employees, which shall continue, including the policies and procedures set
forth in the University of Virginia Medical Center Human Resources Policies and
Procedures Manual, as such Manual may be amended from time to time. The Medical Center Human Resources System is and shall continue to be consistent with Governing
Law, other provisions of applicable law, and any other human resources policies
adopted by the Board of Visitors for Medical Center employees. All
current delegations of authority to University and Medical Center officials who oversee the Medical Center Human Resources System are hereby ratified and
continue.
All the systems described above, except the system
described in paragraph 3, may be amended by the President, acting through the
Executive Vice President and Chief Operating Officer, consistent with these
human resources policies. The system described in paragraph 3 may be
amended only by the State.
B. Training in and Compliance with Applicable Provisions of
Law and Board of Visitors’ Human Resources Policies.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall take all necessary and reasonable steps to
assure (i) that the University officials who develop, implement and administer
the Academic Division and College Human Resources Systems and the Medical
Center Human Resources System authorized by Governing Law and these human
resources policies are knowledgeable regarding the requirements of the
Governing Law, other applicable provisions of law, these University human
resources policies, and other applicable Board of Visitors' human resources
policies affecting University employees, and (ii) that compliance with such
laws and human resources policies is achieved.
VI. HUMAN RESOURCES POLICIES.
The Academic Division and College Human Resources Systems
adopted by the University pursuant to Governing Law and this Policy, as set
forth in Section V above, as well as the Medical Center Human Resources System,
shall embody the following human resources policies and principles:
A. Election by Academic Division and College Salaried
Nonfaculty Employees.
Upon the adoption by the University of an Academic Division
Human Resources System, or a College Human Resources System, or both, all
salaried nonfaculty University employees who were in the employment of the
Academic Division or the College, as appropriate, as of the day prior to the
Effective Date of its initial Management Agreement with the Commonwealth,
except employees of the Medical Center, shall be given written notice of their
right to elect to participate in and be governed by either (i) the State human
resources program set forth in Chapters 28 (§ 2.2-2800 et seq.) and 29
(§ 2.2-2900 et seq.) of Title 2.2 of the Code of Virginia, and
administered by the Department of Human Resource Management, or (ii) the
Academic Division Human Resources System or the College Human Resources System,
as appropriate. A salaried nonfaculty University employee who elects to
continue to be governed by the State human resources program described above
shall continue to be governed by all State human resources and benefit plans,
programs, policies and procedures that apply to and govern State
employees. A salaried nonfaculty University employee who elects in
writing to participate in and be governed by the Academic Division Human
Resources System or the College Human Resources System, as appropriate, also,
by that election, shall be deemed to have elected to be eligible to participate
in and to be governed by the human resources, authorized alternative insurance,
and severance plans, programs, policies and procedures that are or may be
adopted by the University as part of that Academic Division Human Resources
System or College Human Resources System, as appropriate.
Each such salaried nonfaculty University employee shall be
given at least 90 days to make the election required by the prior
paragraph. Such 90-day period shall begin to run on the date on which the
Academic Division Human Resources System or the College Human Resources System,
as appropriate, becomes effective for that University employee’s classification
of employees. If such a salaried nonfaculty University employee does not
make an election by the end of that specified election period, that University
employee shall be deemed not to have elected to participate in the Academic
Division Human Resources System or the College Human Resources System, as
appropriate. If such a salaried nonfaculty University employee elects to
participate in the Academic Division Human Resources System or the College
Human Resources System, as appropriate, that election shall be
irrevocable. At least every two years, the University shall offer to
salaried nonfaculty University employees who have elected to continue to
participate in the state human resources program set forth in Chapters 28 (§
22.-2800 et seq.) and 29 (§ 2.2-2900 et seq.) of Title 2.2 of the Code of
Virginia, an opportunity to elect to participate in the Academic Division Human
Resources System or the College Human Resources System, as appropriate;
provided that, each time prior to offering such opportunity to such salaried
nonfaculty University employees, and at least once every two years after the
effective date of the Academic Division Human Resources System or the College
Human Resources System, or both, as appropriate, the University shall make
available to each of its salaried nonfaculty University employees a comparison
of its human resources program for that classification of salaried nonfaculty
University employee with the State human resources program for comparable State
employees, including but not limited to a comparability assessment of
compensation and benefits. A copy of the human resources program
comparison shall be provided to the Department of Human Resource Management.
B. Classification and Compensation.
General. The Systems shall include classification and
compensation plans that are fair and reasonable, and are based on the
availability of University financial resources. The plans adopted by the
University for its faculty, Medical Center employees, and other Participating
Covered Employees shall be independent of, and need not be based on, the
classification and compensation plans of the Commonwealth, do not require the
approval of any State agency or officer, and shall be subject to the review and
approval by the Board of Visitors as set forth in paragraph 3 below. The
University shall provide information on its classification and compensation
plans to all University employees. The plans applicable to Participating
Covered Employees and Medical Center employees may or may not include changes
in classification or compensation announced by the Commonwealth depending on
such factors as the availability of necessary financial resources to fund any
such changes, and subject to the review and approval by the Board of Visitors
of any major changes in the University’s compensation plans.
Classification Plan. The Systems shall include one or
more classification plans for University employees that classify positions
according to job responsibilities and qualifications. On the Effective
Date of the University’s initial Management Agreement with the Commonwealth,
and until changed by the University, the classification plans shall be the same
plans that are in effect for each group of employees immediately prior to that
Effective Date.
Compensation Plan. The Systems shall include one or
more compensation plans for each University employee classification or
group. On the Effective Date of the University’s initial Management
Agreement with the Commonwealth, and until changed by the Department of Human
Resource Management, the compensation plan for Classified Employees in the
Academic Division and College shall be the compensation plan in effect
immediately prior to that Effective Date, known as the Commonwealth’s
Classified Compensation Plan. On that Effective Date, and until changed
by the University, the compensation plan or plans for all Participating Covered
Employees shall be the compensation plan or plans in effect immediately prior
to that Effective Date. The University may adopt one or more compensation
plans for Participating Covered Employees that are non-graded plan(s) based on
internal and external market data and other relevant factors to be determined
annually. On that Effective Date, and until changed by the University,
the compensation plan for Medical Center employees in effect immediately prior
to that Effective Date shall continue as the compensation plan for Medical
Center employees. Any major change in compensation plans for
Participating Covered Employees or Medical Center employees shall be reviewed
and approved by the Board of Visitors before that change becomes
effective. Any change recommended in the compensation plans may take into
account the prevailing rates in the labor market for the jobs in question, or
for similar positions, the relative value of jobs, the competency and skills of
the individual employee, internal equity, and the availability of necessary
financial resources to fund the proposed change. The compensation payable
to University employees shall be authorized and approved only by designated
University officers delegated such authority by the University, and shall be
consistent with the approved compensation plan for the relevant position or
classification. Further approval by any other State Agency, governmental
body or officer is not required for setting, adjusting or approving the
compensation payable to individual Participating Covered Employees.
Wages. The Systems shall include policies and
procedures for the authorization, computation and payment of wages, where
appropriate, for such premium pays as overtime, shift differential, on call,
and call back, and for the payment of hourly employees.
Payment of Compensation. The Systems shall include
policies and procedures for paying compensation to employees, including the
establishment of one or more payday schedules.
Work Schedule and Workweek. The Systems shall include
policies and procedures for the establishment of, and modifications to, work
schedules and workweeks for all University employees, including alternative
work schedules and sites, and telecommuting policies and procedures.
Other Classification and Compensation Policies and
Procedures. The Systems may include any other reasonable classification
and compensation policies and procedures the President, acting through the
Executive Vice President and Chief Operating Officer, deems appropriate.
C. Benefits.
The Systems shall provide fringe benefits to all benefits
eligible employees, including retirement benefits, health care insurance, and
life, disability, and accidental death and dismemberment insurance. The
benefits provided shall include a basic plan of benefits for each benefits
eligible employee, and may include an optional benefits plan for benefits
eligible employees, including additional insurance coverage, long-term care,
tax deferred annuities, flexible reimbursement accounts, employee assistance
programs, employee intramural and recreational passes, and other wellness
programs. As provided in subsections B and C of § 23-38.119 of the Act,
the University may require Participating Covered Employees to pay all or a
portion of the cost of group life, disability and accidental death and
dismemberment insurance, which may be collected through a payroll deduction
program. Participating Covered Employees shall not be required to present
evidence of insurability for basic group life insurance coverage. The
Board of Visitors may elect to provide benefits through Virginia Retirement
System group insurance programs under the terms of and to the extent allowed by
subsections B and D of § 23-38.119 of the Act or any other provision of law.
Notwithstanding the above, pursuant to subsection A of §
23-38.114 of the Act, and unless and until that section is amended, the state
retirement system, state health insurance program, and state workers’
compensation coverage program as they may be amended from time to time, shall
continue to apply to and govern all eligible University employees. If,
however, the University has been or is permitted by law other than the Act to
establish an alternative health insurance plan or an alternative faculty or
Medical Center retirement plan or plans, such alternative health insurance or
faculty or Medical Center retirement plan or plans shall apply to and govern
the University employees included in such plan or plans. The University
shall be responsible for managing its non-Medicare eligible retiree health
insurance. Subject to the Act, the University may offer an alternative
health insurance plan for Medicare-eligible retirees.
The Systems may provide different benefits plans for
reasonably different groups or classifications of employees, and may provide
benefits to part-time employees. On the Effective Date of the
University’s initial Management Agreement with the Commonwealth, and until
changed by the appropriate governing authority, the benefits plans provided by
the University to Classified Employees and Participating Covered Employees
shall be the benefits plans provided to that group or classification as of the
date immediately prior to that Effective Date. On or after that Effective
Date, alternative University group life, accidental death and dismemberment,
and short- and long-term disability plans may be provided to eligible
Participating Covered Employees, or at the election of the Board of Visitors
and subject to the execution of participation agreements as provided in
subsections B and C of § 23-38.119 of the Act, they may be provided by the
appropriate State programs, but no contributions to the State programs by the
University shall be required for Participating Covered Employees who do not
participate in the programs. Subject to the provisions of the Act, any
new plans, programs and material changes permitted under current law in
University employee benefits plans, other than Classified Employee benefits
plans, shall be approved by the Board of Visitors, including the authority to
increase the Cash Match Contribution rate up to the limit permitted by the Code
of Virginia based on available resources, and the authority to implement
cafeteria-style benefits for University employees other than Classified Employees.
Insurance and all proceeds therefrom provided pursuant to §
23-38.119 of the Act shall be exempt from legal process and may be subject to
assignment as provided in subsection A of § 23-38.119.
D. Employee Relations.
1. General. The Systems shall contain provisions that
protect the rights and privileges of University employees consistent with sound
management principles and fair employment practice law.
2. Employee Safety and Health. The Systems shall
contain provisions that promote workplace safety compliance with applicable law
and regulations.
3. Employee Work Environment. The Systems shall
promote a work environment that is conducive to the performance of job duties,
and free from intimidation or coercion in violation of State or federal law,
including sexual harassment or other discrimination.
4. Employee Recognition. The Systems may provide for
the use of leave awards and bonuses specific to policies and procedures for
awarding, honoring, or otherwise recognizing University employees, including but
not limited to those who have performed particularly meritorious service for
the University, have been employed by the University for specified periods of
time, or have retired from the University after lengthy service.
5. Counseling Services. The Systems shall provide
counseling services through the State’s Employee Assistance Program or a
University Employee Assistance Program to any eligible University employee
experiencing job-related difficulties and seeking counseling for those
difficulties, and shall establish the circumstances under which the time
necessary to participate in such counseling may be granted.
6. Unemployment Compensation. The Systems shall
ensure that University employees receive the full unemployment compensation
benefits to which they are legally entitled, and that the University's
liability is limited to legitimate claims for such benefits.
7. Workers’ Compensation. The Systems shall ensure
that University employees have workers’ compensation benefits to which they are
legally entitled pursuant to the State Employees’ Workers Compensation Program
administered by the Department of Human Resource Management.
8. Performance Planning and Evaluation. The Systems
shall include one or more performance planning and evaluation processes for
University employees that (i) establish and communicate the University's
performance expectations, (ii) help develop productive working relationships,
(iii) allow employees to present their views concerning their performance, (iv)
identify areas for training or professional development, (v) establish the
process by which evaluations shall be conducted, (vi) clarify how superlative
or inadequate performance shall be addressed, and (vii) ensure that all
University employees are provided relevant information on the evaluation
process. The Systems may include separate performance and evaluation
processes for reasonably distinguishable groups of University employees.
On the Effective Date of the University’s initial Management Agreement with the
Commonwealth, the existing merit-based performance management system for
faculty and Medical Center employees shall continue, until amended by the
University. On or after that Effective Date, Academic Division and
College nonfaculty salaried Participating Covered Employees may be subject to a
variable merit-based performance management system.
9. Standards of Conduct and Performance. In order to
protect the well-being and rights of all employees and to ensure safe,
efficient University operations and compliance with the law, the Systems shall
establish rules of personal conduct and standards of acceptable work
performance for University salaried nonfaculty employees and policies for
corrective discipline. In general, the policies for corrective discipline shall
serve to (i) establish a uniform and objective process for correcting or
disciplining unacceptable conduct or work performance, (ii) distinguish between
less serious and more serious actions of misconduct and provide corrective
action accordingly, and (iii) limit corrective action to employee conduct
occurring only when employees are at work or are otherwise representing the
University in an official or work-related capacity, unless otherwise
specifically provided by the policies of the Systems or other applicable
law. The Systems may provide for a probationary period for new and
re-employed University salaried nonfaculty employees, during which period the
policies for corrective discipline shall not be applicable and the employee may
not use the grievance procedure set forth in the next paragraph. The
Systems may include separate rules of personal conduct and standards of
acceptable work performance and policies for corrective discipline for
reasonably distinguishable groups of University employees.
10. Grievance Procedure. As provided in the Governing
Law, employees shall be encouraged to resolve employment-related problems and
complaints informally, and shall be permitted to discuss their concerns freely
and without fear of retaliation with immediate supervisors and
management. In the event that such problems cannot be resolved
informally, all salaried nonfaculty University employees, regardless of their
date of hire, shall have access, as provided in subsection A of § 23-38.114 and
in § 23-38.117 of the Act, to the State Grievance Procedure, Chapter 30 (§
2.2-3000 et seq.) of Title 2.2 of the Code of Virginia, to the extent it was
applicable to their classification of employees prior to the Effective Date of
the University’s initial Management Agreement with the Commonwealth. On
that Effective Date, and until changed by the University, the faculty grievance
procedures in effect immediately prior to the Effective Date shall continue.
11. Discrimination Complaints. If a Classified
Employee believes discrimination has occurred, the Classified Employee may file
a complaint with the Department of Human Resource Management Office of Equal
Employment Services, with the appropriate University office, or with the
appropriate federal agencies. All Participating Covered Employees and
applicants for employment after the Effective Date of the University’s initial
Management Agreement with the Commonwealth shall file a complaint with the
appropriate University office or with the appropriate federal agencies.
12. Layoff Policy. The Systems shall include one or
more layoff policies for salaried University employees who lose their jobs for
reasons other than their job performance or conduct, such as a reduction in
force or reorganization at the University. These University layoff
policies shall govern such issues as (i) whether there is a need to effect a
layoff, (ii) actions to be taken prior to a layoff, (iii) notice to employees
affected by a layoff, (iv) placement options within the University or its
respective major divisions and within other parts of the University, (v) the
preferential employment rights, if any, of various University employees, (vi)
the effect of layoff on leave and service, and (vii) the policy for recalling
employees. In accordance with the terms of the Act, University employees
who: (i) were employed prior to the Effective Date of the University’s initial
Management Agreement with the Commonwealth, (ii) would otherwise be eligible
for severance benefits under the Workforce Transition Act, (iii) were covered
by the Virginia Personnel Act prior to that Effective Date, and (iv) are
separated because of a reduction in force shall have the same preferential
hiring rights with State agencies and other executive branch institutions as
Classified Employees have under § 2.2-3201 of the Code of Virginia.
Conversely, the University shall recognize the hiring preference conferred by §
2.2-3201 on State employees who were hired by a State agency or executive
branch institution before the Effective Date of the University’s initial
Management Agreement with the Commonwealth and who were separated after that
date by that State agency or executive branch institution because of a
reduction in workforce. If the University has adopted a classification
system pursuant to § 23-38.116 of the Act that differs from the classification
system administered by the Department of Human Resource Management, the
University shall classify the separated employee according to its
classification system and shall place the separated employee
appropriately. The University may include separate policies for
reasonably distinguishable groups of University employees. On or after
the Effective Date of the University’s initial Management Agreement with the
Commonwealth, all employees from other State agencies and executive branch
institutions who are placed by the University under the provisions of the State
Layoff Policy shall be Participating Covered Employees.
13. Severance Benefits. In accordance with the terms
of the Act, the University shall adopt severance policies for salaried
Participating Covered Employees who are involuntarily separated for reasons
unrelated to performance or conduct. The terms and conditions of such
policies shall be determined by the Board of Visitors. Classified Employees
who otherwise would be eligible and were employed prior to the Effective Date
of the University’s initial Management Agreement with the Commonwealth shall be
covered by the Workforce Transition Act, Chapter 32 (§ 2.2-3200 et seq.) of
Title 2.2 of the Code of Virginia. The University and the Board of the Virginia Retirement System may negotiate a formula according to which cash severance
benefits may be converted to years of age or creditable service for
Participating Covered Employees who participate in the Virginia Retirement
System. An employee becoming, on such Effective Date, a Covered Employee
shall not constitute a severance or reduction in force to which severance or
Workforce Transition Act policies apply.
14. Use of Alcohol and Other Drugs. The Systems shall
include policies and procedures that (i) establish and maintain a work
environment at the University that is free from the adverse effect of alcohol
and other drugs, (ii) are consistent with the federal Drug-Free Workplace Act
of 1988 and with the University of Virginia Alcohol and Other Drugs Policy,
(iii) describe the range of authorized disciplinary action, including
termination where appropriate, for violations of such policies and procedures,
and the process to be followed in taking such disciplinary action, (iv) provide
University employees access to assistance and treatment for problems involving
alcohol and other drugs, (v) provide for the circumstances under which
employees are required to report certain violations of the policies and
procedures to their supervisor, and the University is required to report those
violations to a federal contracting or granting agency, (vi) describe the
circumstances under which personnel records of actions taken under the
University’s alcohol and other drugs policy shall not be kept confidential, and
(vii) provide notice to University employees of the scope and content of the
University alcohol and other drugs policy. As part of this alcohol and
other drugs policy, and in compliance with the federal Omnibus Transportation
Employee Testing Act of 1991, the Systems may provide for pre-employment,
reasonable suspicion, random, post-accident, return-to-duty and follow-up
alcohol and other drug testing for University positions that are particularly safety
sensitive, such as those requiring a Commercial Driver’s License or the
provision of patient care.
15. Background Checks. The Systems shall include a
process for conducting background checks, which may include but is not limited
to reference checks, educational/ professional credentialing checks, and
conviction and driver’s records checks on applicants for full-time or part-time
positions at the University, and for addressing situations where employees do
not disclose a conviction on their application or otherwise falsify their
application with regard to information concerning their education/professional
credential and/or prior convictions.
16. Other Employee Relations Policies and Procedures.
The Systems shall include any other reasonable employee relations policies or
procedures that the President, acting through the Executive Vice President and
Chief Operating Officer, deems appropriate, which may include, but are not
limited to, policies or procedures relating to orientation programs for new or
re-employed University employees, an employee suggestion program, the
responsibility of University employees for property placed in their charge,
work breaks, inclement weather and emergencies, and employment outside the
University.
E. Leave and Release Time.
The Systems shall include policies and procedures regarding
leave for eligible employees. The Systems shall provide reasonable paid
leave for purposes such as holidays, vacation, or other personal uses.
The Systems may provide for release time for such matters as the donation of
blood, participation in an employee assistance program and other appropriate
employment-related matters. On or after the Effective Date of its initial
Management Agreement with the Commonwealth, and until a new program is adopted
by the appropriate authority, the University shall continue to provide leave
and release time to Participating Covered Employees in accordance with the
leave and release time policies and procedures applicable to each
classification of employees prior to that Effective Date. On or after
that Effective Date, the University may provide an alternative leave and
release time system for salaried nonfaculty Participating Covered Employees.
F. Equal Employment Opportunity, Nondiscrimination,
Employment, and Separation.
1. Equal Employment Opportunity and
Nondiscrimination. The Systems shall contain policies and procedures to
ensure that all aspects of human resources management, including the employment
of University employees, meet all requirements of federal and state law, and of
the relevant policies of the Board of Visitors, with regard to equal employment
opportunity and nondiscrimination.
2. Employment. The Systems shall include policies and
procedures for the recruitment, selection and hiring of University employees
that are based on merit and fitness, including where appropriate a requirement
for job posting, interviews, pre-employment testing, pre-employment drug
testing, reference checks and conviction record checks. On and after the
Effective Date of its initial Management Agreement with the Commonwealth, the
University shall post all salaried nonfaculty position vacancies through the
University’s job posting system, the Commonwealth’s job posting system, and
other external media as appropriate. The Systems shall establish
designated veterans' re-employment rights in accordance with applicable law.
In order to encourage employees to attain the highest level
positions for which they are qualified, and to compensate employees for
accepting positions of increased value and responsibility, the Systems shall
include policies and procedures governing the promotion of employees, including
the effect of promotion on an employee's compensation.
On or after the Effective Date of the University’s initial
Management Agreement with the Commonwealth, all employees hired from other
state agencies shall be Participating Covered Employees. University
Academic Division and College Classified Employees who change jobs within the
Academic Division or the College through a competitive employment process –
i.e., promotion or transfer – shall have the choice of remaining a Classified
Employee or becoming a Participating Covered Employee. If a Classified
Employee elects to become a Participating Covered Employee, that decision shall
be irrevocable.
3. Notice of Separation. The Systems shall include policies
and procedures requiring reasonable notice, where appropriate, of a decision
either by the employee or by the University to separate the employee from the
University in accordance with policies governing performance, conduct, or
layoff.
G. Information Systems.
The University shall provide an electronic file transfer of
information on all salaried University employees and shall continue to provide
the Employee Position Reports to meet the human resources reporting
requirements specified by law or by request of the Governor or the General
Assembly, unless the University is specifically exempted from those
requirements. The University shall conduct assessments to demonstrate its
accountability for human resources practices that comply with laws and
regulations. The Department of Human Resource Management and the
University have entered into a Memorandum of Understanding, attached hereto as
Attachment 3, which may be amended from time to time by agreement of the
parties, regarding the specific data and reporting requirements. The
University shall be accountable for ensuring the timeliness and integrity of
the data transmitted to the Department of Human Resources Management.
VII. CONTINUED APPLICABILITY OF OTHER PROVISIONS OF THE
CODE OF VIRGINIA AND OTHER BOARD OF VISITORS’ POLICIES AFFECTING UNIVERSITY
PERSONNEL.
On and after the Effective Date of its initial Management
Agreement with the Commonwealth, University employees shall be subject to the
terms and conditions of the Act and the Management Agreement between the
Commonwealth and the University. Classified Employees shall continue to
be subject to the human resources policies and exceptions to those policies
adopted or approved by the Department of Human Resource Management.
In addition, all University employees also shall remain
subject to any other human resources policies adopted by the Board of Visitors
applicable to University personnel unless University employees or a subset
thereof are specifically exempted from those other human resources policies
either by those other policies or by this Policy.
ATTACHMENT 3
Memorandum of Understanding
Between the University of Virginia and the
Department of Human Resources Management Regarding
The Reporting of Human Resources Management Data
This Memorandum of Understanding, which may be amended from
time to time by the agreement of all parties, is an attachment to the Policy
Governing Human Resources for Participating Covered Employees and Other
University Employees pursuant to the Restructured Higher Education Financial
and Administrative Operations Act of 2005, and is hereby entered into between
the University of Virginia and the Department of Human Resource Management (DHRM).
This document outlines the provisions for information
management pertaining to human resources data, consistent with the objectives
to enable DHRM to meet the Commonwealth’s reporting requirements, to ensure
compliance with relevant federal and state laws and regulations, and to do so
through efficient and cost-effective methods.
In lieu of data entry into the state’s Personnel Management
Information System (PMIS), data will be transmitted through an electronic file
transfer to update DHRM’s warehouse.
The University will provide a flat file of designated
personnel data. For “Classified Employees,” the data provided will match
DHRM’s data values for the designated fields. For salaried “Participating
Covered Employees,” the data provided will include the University’s data values
for the designated fields. The University will provide a data dictionary
to DHRM. The file of designated data will be specifically described by an
addendum to this Memorandum upon the agreement of the University and DHRM.
The University will provide a second flat file of salaried
personnel actions for “Classified Employees” and salaried “Participating
Covered Employees,” such as promotions, separations, and salary
adjustments. The file of relevant personnel actions and designated data
to be provided for each action will be specifically described by an addendum to
this Memorandum upon the agreement of the University and DHRM.
DHRM will accept the federal Affirmative Action Plan (AAP),
including the adverse impact analyses of employment and compensation actions
that are part of the AAP, as demonstration of the University’s compliance with
relevant federal and state employment laws and regulations.
The University may key data into the Benefits Enrollment
System or provide a batch file, or employees may use Employee Direct (employee
self-service). For the self-administered health plans provided by the University of Virginia Academic Division (State Agency 207) and Medical Center (State Agency
209), this section is not relevant.
Other reports to be provided by the University include the
following:
Monthly Employee Position Report.
Annual report on salaried, wage, and contract employees.
The undersigned hereby agree to the provisions contained in
the MOU.
APPROVALS:
The University of Virginia:
By:
..............................................................................Date.......................................
Executive Vice President and Chief Operating Officer
Department of Human Resources Management:
By: ..............................................................................Date.......................................
Director, Department of Human Resources Management
EXHIBIT R
MANAGEMENT AGREEMENT
BETWEEN
THE COMMONWEALTH OF VIRGINIA
AND
THE UNIVERSITY OF VIRGINIA
PURSUANT TO
THE RESTRUCTURED HIGHER EDUCATION
FINANCIAL AND ADMINISTRATIVE OPERATIONS
ACT OF 2005
POLICY GOVERNING
FINANCIAL OPERATIONS AND MANAGEMENT
THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA
POLICY GOVERNING FINANCIAL OPERATIONS AND MANAGEMENT
I. PREAMBLE.
The Restructured Higher Education Financial and
Administrative Operations Act (the Act), Chapter 4.10 (§ 23-38.88 et seq.) of
Title 23 of the Code of Virginia, establishes by law a process for granting
additional authority to institutions of higher education for financial
operations and management, subject to the adoption of policies by their
governing boards and the approval of management agreements to be negotiated
with the Commonwealth.
The following provisions of this Policy constitute the
adopted Board of Visitors policies regarding the University of Virginia’s financial operations and management.
This Policy is intended to cover the authority that may be
granted to the University pursuant to Subchapter 3 of the Act. Any other powers
and authorities granted to the University pursuant to the Appropriation Act, or
any other sections of the Code of Virginia, including other provisions of the
Act and the University’s Enabling Legislation, are not affected by this
Policy. In particular, other powers and authorities granted to the Medical Center by law, to the extent they exceed those granted to the University pursuant
to Subchapter 3 of the Act, are not affected by this Policy Statement.
II. DEFINITIONS.
As used in this policy, the following terms shall have the
following meanings, unless the context requires otherwise:
“Academic Division” means that part of the University known
as (State Agency 207).
“Act” means the Restructured Higher Education Financial and
Administrative Operations Act, Chapter 4.10 (§ 23-38.88 et seq.) of Title 23 of
the Code of Virginia.
“Board of Visitors” or “Board” means the Rector and Board
of Visitors of the University of Virginia.
“College” means that part of the University operated as the
University of Virginia’s College at Wise, also known as (State Agency 246).
“Covered Institution” means, on or after the Effective Date
of its initial Management Agreement with the Commonwealth of Virginia, a public
institution of higher education of the Commonwealth that has entered into a
Management Agreement with the Commonwealth to be governed by the provisions of
Subchapter 3 of the Act.
“Enabling Legislation” means those chapters, other than
Chapter 4.10, of title 23 of the Code of Virginia, as amended, creating, continuing,
or otherwise setting forth the powers, purposes, and missions of the
University, and as provided in §§ 2.2-2817.2, 2.2-2905, 51.1-126.3, and
51.1-1100 in the case of the University of Virginia Medical Center.
“Effective Date” means the effective date of the initial
Management Agreement between the University and the Commonwealth.
“Management Agreement” means the agreement required by
subsection D of § 23-38.88 of the Act between the University and the Commonwealth of Virginia.
“Medical Center” means that part of the University
consisting of the University of Virginia Medical Center, known as (State Agency
209), and related health care and health maintenance facilities.
“State Tax Supported Debt” means bonds, notes or other
obligations issued under Article X, Section 9(a), 9(b), or 9(c), or 9(d), if
the debt service payments are made or ultimately are to be made from general
government funds, as defined in the December 20, 2004 Report to the Governor
and General Assembly of the Debt Capacity Advisory Committee or as that
definition is amended from time to time.
“University” means the University of Virginia, consisting
of the Academic Division, the College, and the Medical Center.
III. SCOPE OF POLICY.
This Policy applies to the University’s responsibility for
management, investment and stewardship of all its financial resources,
including but not limited to, general, non-general and private funds.
This responsibility includes maintaining an independent uniform system of
accounting, financial reporting, and internal controls adequate to protect and
account for the University’s financial resources.
The University of Virginia’s College at Wise shall receive
the benefits of this Policy as it is implemented by the University on behalf of
the College at Wise, but the College at Wise shall not receive any additional
independent financial operations and management authority as a result of this
Management Agreement beyond the independent financial operations and management
authority that it had prior to the Effective Date of the University’s initial
Management Agreement with the Commonwealth or that it may be granted by law in
the future.
IV. BOARD OF VISITORS ACCOUNTABILITY AND DELEGATION OF
AUTHORITY.
The Board of Visitors of the University shall at all times
be fully and ultimately accountable for the proper fulfillment of the duties
and responsibilities set forth in, and for the appropriate implementation of,
this Policy. Consistent with this full and ultimate accountability,
however, the Board may, pursuant to its legally permissible procedures,
specifically delegate either herein or by separate Board resolution the duties
and responsibilities set forth in this Policy to a person or persons within the
University, who, while continuing to be fully accountable for such duties and
responsibilities, may further delegate the implementation of those duties and
responsibilities pursuant to the University’s usual delegation policies and
procedures.
V. FINANCIAL MANAGEMENT AND REPORTING SYSTEM.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall continue to be authorized by the Board to
maintain existing and implement new policies governing the management of
University financial resources. These policies shall continue to (i) ensure
compliance with Generally Accepted Accounting Principles, (ii) ensure
consistency with the current accounting principles employed by the
Commonwealth, including the use of fund accounting principles, with regard to
the establishment of the underlying accounting records of the University and
the allocation and utilization of resources within the accounting system,
including the relevant guidance provided by the State Council of Higher
Education for Virginia chart of accounts with regard to the allocation and
proper use of funds from specific types of fund sources, (iii) provide adequate
risk management and internal controls to protect and safeguard all financial
resources, including moneys transferred to the University pursuant to a general
fund appropriation, and ensure compliance with the requirements of the
Appropriation Act.
The financial management system shall continue to include a
financial reporting system to satisfy both the requirements for inclusion into
the Commonwealth’s Comprehensive Annual Financial Report, as specified in the
related State Comptroller’s Directives, and the University’s separately audited
financial statements. To ensure observance of limitations and
restrictions placed on the use of the resources available to the University, the
accounting and bookkeeping system of the University shall continue to be
maintained in accordance with the principles prescribed for governmental
organizations by the Governmental Accounting Standards Board.
In addition, the financial management system shall continue
to provide financial reporting for the President, acting through the Executive
Vice President and Chief Operating Officer, and the Board of Visitors to enable
them to provide adequate oversight of the financial operations of the University.
Upon the Effective Date of the initial Management Agreement between the
University and the Commonwealth, except for the recordation of daily revenue
deposits of State funds as specified in Section VII below, the University shall
not be required to record its financial transactions in the Commonwealth’s
Accounting and Reporting System (CARS), including the current monthly
interfacing with CARS, or to record its financial transactions in any
subsequent Commonwealth financial systems that replace CARS or are in addition
to CARS, but shall have its own financial reporting system. The
University’s financial reporting system shall provide (i) summary monthly
reports for State agencies including, but not limited to, the Department of
Accounts, the Department of Planning and Budget, the Joint Legislative Audit
and Review Commission, the Department of Medical Assistance Services, the
Auditor of Public Accounts, and the State Council of Higher Education for
Virginia, and for the Chairmen of the Senate Committee on Finance and the House
Committee on Appropriations at a sufficient level of detail, on such schedule,
and using such format that is compatible with the Commonwealth’s accounting
system, as may be requested by the requesting State agency, and (ii) such other
special reports as may be requested from time to time.
VI. FINANCIAL MANAGEMENT POLICIES.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall create and implement any and all financial
management policies necessary to establish a financial management system with
adequate risk management and internal control processes and procedures for the
effective protection and management of all University financial resources. Such
policies will not address the underlying accounting principles and policies
employed by the Commonwealth and the University, but rather will focus on the
internal operations of the University's financial management. These policies
shall include, but need not be limited to, the development of a tailored set of
finance and accounting practices that seek to support the University's specific
business and administrative operating environment in order to improve the
efficiency and effectiveness of its business and administrative functions. In
general, the system of independent financial management policies shall be
guided by the general principles contained in the Commonwealth’s Accounting
Policies and Procedures such as establishing strong risk management and
internal accounting controls to ensure University financial resources are
properly safeguarded and that appropriate stewardship of public funds is
obtained through management’s oversight of the effective and efficient use of
such funds in the performance of University programs.
Upon the Effective Date of its initial Management Agreement
with the Commonwealth, the University shall continue to follow the
Commonwealth’s accounting policies until such time as specific alternate
policies can be developed, approved and implemented. Such alternate
policies shall include applicable accountability measures and shall be
submitted to the State Comptroller for review and comment before they are
implemented by the University.
VII. FINANCIAL RESOURCE RETENTION AND MANAGEMENT.
Under § 23-38.104(A)(i) of the Act, subject to applicable
accountability measures and audits, the University shall have the power and
authority to manage all monies received by it. All State general funds to
be allocated to the University shall remain subject to the appropriations
process.
Pursuant to subsection C of § 23-9.6:1.01 of the Code of
Virginia, the State Council of Higher Education for Virginia (SCHEV) annually
shall assess and certify to the Governor and General Assembly the degree to
which each public institution of higher education of the Commonwealth has met
the financial and administrative management and educational-related performance
benchmarks called for by that subsection and approved as part of the
Appropriation Act then in effect for the State goals and objectives set forth in
subdivisions B 1 through B 11 of § 23-38.88 of the Act. Pursuant to §
2.2-5005 of the Code of Virginia, beginning with the fiscal year that
immediately follows the first full fiscal year for which the financial and
administrative management and educational-related performance benchmarks
described in § 23-9.6:1.01 are effective, as provided in a general
Appropriation Act, and for all fiscal years thereafter, each public institution
of higher education of the Commonwealth that (i) has been certified during the
fiscal year by SCHEV as having met such institutional performance benchmarks
and (ii) meets the conditions prescribed in subsection B of § 23-38.88 shall
receive certain financial incentives, including interest on the tuition and
fees and other non-general fund Educational and General Revenues deposited into
the State Treasury by the public institution of higher education.
Consistent with the prior paragraph, beginning with the
fiscal year following the first fiscal year for which it has received such certification
from SCHEV, the University is authorized to hold and invest tuition,
Educational and General (E&G) fees, research and sponsored program funds,
auxiliary enterprise funds, and all other non-general fund revenues subject to
the following requirements:
i) The University shall deposit such funds in the
State Treasury pursuant to the State process in place at the time of such
deposit.
ii) Such non-general funds deposited in the State
Treasury shall be disbursed as provided in Section IX below.
iii) The University shall remit to the State
Comptroller quarterly and the State Comptroller shall hold in escrow all
interest earned on the University's tuition and fees and other non-general fund
Educational and General Revenues. Upon receipt of the required State Council of
Higher Education for Virginia certification that the University has met such
institutional performance benchmarks and the conditions prescribed in
subsection B of § 23-38.88, the Governor shall include in the next budget bill
a non-general fund appropriation, payable no later than July 1 of the
immediately following fiscal year, equivalent to the amount deposited in the
escrow account as the financial incentive provided in subdivision 1 of §
2.2-5005, after which time the University may expend the funds for purposes
related to its mission. If public institutions of higher education of the
Commonwealth are permitted, or the University in particular is permitted, by
the Appropriation Act or other law to retain or be paid the interest the Commonwealth
would have earned on sponsored programs and research funds, then this paragraph
shall not apply to such interest on such funds, and such interest shall not be
held in escrow.
iv) If in any given year the University does not receive
the certification from the State Council of Higher Education for Virginia that
it has met for that year the institutional benchmarks called for by subsection
C of § 23-9.6:1.01 and approved in the then-current Appropriation Act, the
Comptroller shall transfer to the general fund the balance in the escrow
account as of June 30 of that year.
v) Beginning on the effective date of its initial
Management Agreement with the University until the beginning of the first
fiscal year following the fiscal year for which it has received the required
certification from SCHEV, the University shall continue to deposit tuition and
all other non-general funds with the State Treasurer by the same process that
it would have been required to use if it had not entered into a Management Agreement
with the Commonwealth.
vi) On the first business day of the first fiscal
year following the fiscal year for which it has received the required
certification from SCHEV, the University may draw down all cash balances held
by the State Treasurer on behalf of the University related to tuition, E&G
fees, research and sponsored programs, auxiliary enterprises, and all other
non-general fund revenues.
vii) The Commonwealth shall retain all funds related
to general fund appropriations, but shall pay these funds to the University as
specified in Section IX below.
The University also shall have sum sufficient appropriation
authority for all non-general funds as approved by the Governor and the General
Assembly in the Commonwealth’s biennial appropriations process, and shall
report to the Department of Planning and Budget (i) its estimate of the
non-general fund revenues for the sum sufficient appropriation to be included
in the biennial Budget Bill for each of the two years in the next biennium by
November 1 of each odd numbered year and the estimate to be included in the
Budget Bill for the first and second year of the then-current biennium by
November 1 of each even numbered year, and (ii) report its actual non-general
fund revenues for each fiscal year to the Department of Planning and Budget by
July 31 of the subsequent fiscal year.
The Board of Visitors shall retain the authority to
establish tuition, fee, room, board, and other charges, with appropriate
commitment provided to need-based grant aid for middle- and lower-income
undergraduate Virginians. Except as provided otherwise in the
Appropriation Act then in effect, it is the intent of the Commonwealth and the
University that the University shall be exempt from the revenue restrictions in
the general provisions of the Appropriation Act related to non-general
funds. In addition, unless prohibited by the Appropriation Act then in
effect, it is the intent of the Commonwealth and the University that the
University shall be entitled to retain non-general fund savings generated from
changes in Commonwealth rates and charges, including but not limited to health,
life, and disability insurance rates, retirement contribution rates,
telecommunications charges, and utility rates, rather than reverting such savings
back to the Commonwealth. This financial resource policy assists the
University by providing the framework for retaining and managing non-general
funds, for the receipt of general funds, and for the use and stewardship of all
these funds.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall continue to provide oversight of the
University’s cash management system which is the framework for the retention of
non-general funds. The Internal Audit Department of the University shall
periodically audit the University’s cash management system in accordance with
appropriate risk assessment models and make reports to the Audit and Compliance
Committee of the Board of Visitors. Additional oversight shall continue
to be provided through the annual audit and assessment of internal controls
performed by the Auditor of Public Accounts.
For the receipt of general and non-general funds, the
University shall conform to the Security for Public Deposits Act, Chapter 44 (§
2.2-4400 et seq.) of Title 2.2 of the Code of Virginia as it currently exists
and from time to time may be amended.
VIII. ACCOUNTS RECEIVABLE MANAGEMENT AND COLLECTION.
The President, through the Executive Vice President and
Chief Operating Officer, shall continue to be authorized to create and
implement any and all Accounts Receivable Management and Collection policies as
part of a system for the management of University financial resources.
The policies shall be guided by the requirements of the Virginia Debt Collection
Act, Chapter 48 (§ 2.2-4800 et seq.) of the Code of Virginia, such that the
University shall take all appropriate and cost effective actions to
aggressively collect accounts receivable in a timely manner.
These shall include, but not be limited to, establishing
the criteria for granting credit to University customers; establishing the
nature and timing of collection procedures within the above general principles;
and the independent authority to select and contract with collection agencies
and, after consultation with the Office of the Attorney General, private
attorneys as needed to perform any and all collection activities for all
University accounts receivable such as reporting delinquent accounts to credit
bureaus, obtaining judgments, garnishments, and liens against such debtors, and
other actions. In accordance with sound collection activities, the
University shall continue to utilize the Commonwealth’s Debt Set-Off Collection
Programs, shall develop procedures acceptable to the Tax Commissioner and the
State Comptroller to implement such Programs, and shall provide a quarterly
summary report of receivables to the Department of Accounts in accordance with
the reporting procedures established pursuant to the Virginia Debt Collection
Act.
IX. DISBURSEMENT MANAGEMENT.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall continue to be authorized to create and
implement any and all disbursement policies as part of a system for the
management of University financial resources. The disbursement management
policies shall continue to define the appropriate and reasonable uses of all
funds, from whatever source derived, in the execution of the University’s
operations. These policies also shall continue to address the timing of
appropriate and reasonable disbursements consistent with the Prompt Payment
Act, and the appropriateness of certain goods or services relative to the
University’s mission, including travel-related disbursements. Further,
the University’s disbursement policy shall continue to provide for the
mechanisms by which payments are made including the use of charge cards,
warrants, and electronic payments. Since the University no longer will
interface to the CARS system or any replacement for the CARS system for
disbursements, the University shall establish its own mechanisms for electronic
payments to vendors through Electronic Data Interchange (EDI) or similar
process and payments to the Commonwealth’s Debt Set-Off Collection Programs.
Beginning with the fiscal year after the first fiscal year
for which it first receives the required certification from SCHEV, the
University may draw down its general fund appropriations (subject to available
cash) and tuition and E&G fees and other non-general fund revenues from the
State Treasury. Such funds shall be available to the University for
disbursement as provided in the then-current rules of the Automated Clearing
House (ACH) Network. The draw down of funds may be initiated in
accordance with the following schedule:
i) The University may draw down one-twenty-fourth (1/24) of
its annual general fund appropriation for Educational and General programs on
the first and fifteenth days of each month, and up to 50% of its annual general
fund appropriation for Student Financial Assistance on or after September 1 of
each year with the remaining 50% to be drawn on or after February 1 of each
year in order to meet student obligations;
ii) The University may draw down the sum of all
tuition and E&G fees and all other non-general revenues deposited to the
State Treasury each day on the same business day they were deposited; and
iii) The University anticipates that expenditures
could exceed available revenues from time to time during the year if the above
disbursement schedule is used. When the University projects a cash
deficit is likely in activities supported by general fund appropriations, the
University may make a request to the State Comptroller for an early draw on its
appropriated general funds deposited in the State Treasury, in a form and
within a timeframe agreeable to the parties, in order to cover expenditures.
These disbursement policies shall authorize the President,
acting through the Executive Vice President and Chief Operating Officer, to
independently select, engage, and contract for such consultants, accountants,
and financial experts, and other such providers of expert advice and
consultation, and, after consultation with the Office of the Attorney General,
private attorneys, as may be necessary or desirable in his or her
discretion. The policies also shall continue to include the ability to
locally manage and administer the Commonwealth’s credit card and cost recovery
programs related to disbursements, subject to any restrictions contained in the
Commonwealth’s contracts governing those programs, provided that the University
shall submit the credit card and cost recovery aspects of its financial and
operations policies to the State Comptroller for review and comment prior to
implementing those aspects of those policies. The disbursement policies
shall ensure that adequate risk management and internal control procedures
shall be maintained over previously decentralized processes for public records,
payroll, and non-payroll disbursements. The University shall continue to
provide summary quarterly prompt payment reports to the Department of Accounts
in accordance with the reporting procedures established pursuant to the Prompt
Payment Act.
The University’s disbursement policies shall be guided by
the principles of the Commonwealth’s policies as included in the Commonwealth’s
Accounting Policy and Procedures Manual. Upon the Effective Date of its
initial Management Agreement with the Commonwealth, the University shall
continue to follow the Commonwealth’s disbursement policies until such time as
specific alternative policies can be developed, approved and implemented.
Such alternate policies shall be submitted to the State Comptroller for review
and comment prior to their implementation by the University.
X. DEBT MANAGEMENT.
The President, acting through the Executive Vice President
and Chief Operating Officer, shall continue to be authorized to create and
implement any and all debt management policies as part of a system for the
management of University financial resources.
Pursuant to § 23-38.108(B) of the Act, the University shall
have the authority to issue bonds, notes, or other obligations that do not
constitute State Tax Supported Debt, as determined by the Treasury Board, and
that are consistent with debt capacity and management policies and guidelines
established by its Board of Visitors, without obtaining the consent of any
legislative body, elected official, commission, board, bureau, or agency of the
Commonwealth or of any political subdivision, and without any proceedings or
conditions other than those specifically required by Subchapter 3 of the Act;
provided that, the University shall notify the Treasurer of Virginia of its
intention to issue bonds pursuant to this Policy at the time it adopts
the bond issuance planning schedule for those bonds. Any new or revised
debt capacity and management policy shall be submitted to the Treasurer of Virginia for review and comment prior to its adoption by the University.
The University recognizes that there are numerous types of
financing structures and funding sources available each with specific benefits,
risks, and costs. All potential funding sources shall be reviewed by the
President, acting through the Executive Vice President and Chief Operating
Officer, within the context of the overall portfolio to ensure that any
financial product or structure is consistent with the University’s
objectives. Regardless of the financing structure(s) utilized, the
President, acting through the Executive Vice President and Chief Operating
Officer, shall obtain sufficient documentation to gain a full understanding of
the transaction, including (i) the identification of potential risks and
benefits, and (ii) an analysis of the impact on University creditworthiness and
debt capacity. All such debt or financial products issued pursuant to the
provisions of §§ 23.38-107 and 23.38-108 of the Act shall be authorized by
resolution of the Board, providing that they do not constitute State Tax
Supported Debt.
The University currently has established guidelines
relating to the total permissible amount of outstanding debt by monitoring
University-wide ratios that measure debt compared to University balance-sheet
resources and annual debt service burden. These measures are monitored
and reviewed regularly in light of the University’s current strategic
initiatives and expected debt requirements. The Board of Visitors shall
periodically review and approve the University’s debt capacity and debt
management guidelines. Any change in the current guidelines shall be
submitted to the Treasurer of Virginia for review and comment prior to their
adoption by the University.
XI. INVESTMENT POLICY.
It is the policy of the University to invest its operating
and reserve funds solely in the interest of the University and in a manner that
will provide the highest investment return with the maximum security while
meeting daily cash flow demands and conforming to the Investment of Public
Funds Act (§ 2.2-4500 et seq. of the Code of Virginia). Investments shall
be made with the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent person acting in a like capacity and familiar
with such matters would use in the conduct of an enterprise of a like character
and with like aims.
Endowment investments shall be invested and managed in
accordance with the Uniform Management of Institutional Funds Act, §§ 55-268.1
through 55-268.10, and § 23-76.1 of the Code of Virginia.
The Board of Visitors shall periodically review and approve
the investment guidelines governing the University’s operating and reserve
funds.
XII. INSURANCE AND RISK MANAGEMENT.
By July 1 of each odd-numbered year, the University shall
inform the Secretary of Finance of any intent during the next biennium to
withdraw from any insurance or risk management program made available to the
University through the Commonwealth’s Division of Risk Management and in which
the University is then participating, to enable the Commonwealth to complete an
adverse selection analysis of any such decision and to determine the additional
costs to the Commonwealth that would result from any such withdrawal. If
upon notice of such additional costs to the Commonwealth, the University
proceeds to withdraw from the insurance or risk management program, the
University shall reimburse the Commonwealth for all such additional costs
attributable to such withdrawal, as determined by the Commonwealth's
actuaries. Such payment shall be made in a manner agreeable to both the
University and the Commonwealth.
4. That the provisions of the first, second, and third
enactments of this Act shall supersede the terms of any management agreement
between the Commonwealth and Virginia Polytechnic Institute and State
University, The College of William and Mary in Virginia, and The University of
Virginia, respectively, that was entered into prior to January 1, 2006.
Any such management agreement entered into prior to January 1, 2006, shall be
deemed incorporated into this Act.
5. That the provisions of the first, second, and third
enactments of this Act shall expire at midnight on June 30, 2010. The
expiration of such enactments shall automatically result in the expiration of
the provisions of any management agreement between the Commonwealth and Virginia
Polytechnic Institute and State University, The College of William and Mary in
Virginia, and The University of Virginia, respectively, which was entered into
prior to January 1, 2006, and incorporated into this Act.