                                 CODE OF VIRGINIA

PROCESS FOR COMPETITIVE NEGOTIATION (§ 2.2-4302.2)

A. The process for competitive negotiation shall include the following:

   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, indicating whether a numerical scoring system will be
   used in evaluation of the proposal, and containing or incorporating by
   reference the other applicable contractual terms and conditions, including any
   unique capabilities, specifications or qualifications that will be required.
   Except with regard to contracts for architectural, professional engineering,
   transportation construction, or transportation-related construction services,
   a public body may include as a factor that will be used in evaluating a
   proposal the proposer&#8217;s employment of persons with disabilities to
   perform the specifications of the contract. In the event that a numerical
   scoring system will be used in the evaluation of proposals, the point values
   assigned to each of the evaluation criteria shall be included in the Request
   for Proposal or posted at the location designated for public posting of
   procurement notices prior to the due date and time for receiving proposals. No
   Request for Proposal for construction authorized by this chapter shall
   condition a successful offeror&#8217;s eligibility on having a specified
   experience modification factor;

   2. Public notice of the Request for Proposal at least 10 days prior to the
   date set for receipt of proposals by posting on the Department of General
   Services&#8217; central electronic procurement website or other appropriate
   websites. Public bodies may also publish in a newspaper 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. Posting
   on the Department of General Services&#8217; central electronic procurement
   website shall be required of (i) any state public body and (ii) any local
   public body if such local public body elects not to publish notice of the
   Request for Proposal in a newspaper of general circulation in the area in
   which the contract is to be performed. Local public bodies are encouraged to
   utilize the Department of General Services&#8217; central electronic
   procurement website to provide the public with centralized visibility and
   access to the Commonwealth&#8217;s procurement opportunities. In addition,
   proposals may be solicited directly from potential contractors. Any additional
   solicitations shall include certified businesses selected from a list made
   available by the Department of Small Business and Supplier Diversity; and

   3. For goods, nonprofessional services, and insurance, 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. The offeror shall state any exception to any contractual terms or
   conditions, including any liability provisions contained in the Request for
   Proposal in writing at the time of responding to such Request for Proposal if
   so requested by the public body. Such exceptions shall be considered during
   negotiation but shall not be used as a basis for scoring or evaluating which
   offerors are selected for negotiations. Price shall be considered, but need
   not be the sole or primary determining factor. After negotiations have been
   conducted with each offeror so selected, the public body shall select the
   offeror which, in its opinion, has made the best proposal and provides the
   best value, and shall award the contract to that offeror. When the terms and
   conditions of multiple awards are so provided in the Request for Proposal,
   awards may be made to more than one offeror. Should the public body determine
   in writing and in its sole discretion that only one offeror is fully
   qualified, or that one offeror is clearly more highly qualified than the
   others under consideration, a contract may be negotiated and awarded to that
   offeror; or

   4. For professional services, the public body shall engage in individual
   discussions with two or more offerors deemed fully qualified, responsible and
   suitable on the basis of initial responses and with emphasis on professional
   competence, to provide the required services. Repetitive informal interviews
   shall be permissible. The offerors shall be encouraged to elaborate on their
   qualifications and performance data or staff expertise pertinent to the
   proposed project, as well as alternative concepts. In addition, offerors shall
   be informed of any ranking criteria that will be used by the public body in
   addition to the review of the professional competence of the offeror. The
   Request for Proposal shall not, however, request that offerors furnish
   estimates of man-hours or cost for services. At the discussion stage, the
   public body 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. In accordance with &#xA7;
   2.2-4342, proprietary information from competing offerors shall not be
   disclosed to the public or to competitors. For architectural or engineering
   services, the public body shall not request or require offerors to list any
   exceptions to proposed contractual terms and conditions, unless such terms and
   conditions are required by statute, regulation, ordinance, or standards
   developed pursuant to &#xA7; 2.2-1132, until after the qualified offerors are
   ranked for negotiations. 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 public body 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 public body can be
   negotiated at a price considered fair and reasonable and pursuant to
   contractual terms and conditions acceptable to the public body, 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.
   				Notwithstanding the foregoing, if the terms and conditions for multiple
   awards are included in the Request for Proposal, a public body may award
   contracts to more than one offeror.
   				Should the public body 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.

B. Multiphase professional services contracts satisfactory and advantageous to
the completion of large, phased, or long-term projects may be negotiated and
awarded based on a fair and reasonable price for the first phase only, where the
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
entering into any such contract, the public body shall (i) state the anticipated
intended total scope of the project and (ii) determine in writing that the
nature of the work is such that the best interests of the public body require
awarding the contract.
			For the purposes of subdivision A 1, &#8220;experience modification
factor&#8221; means a value assigned to an employer as determined by a rate
service organization in accordance with its uniform experience rating plan
required to be filed pursuant to subsection D of &#xA7; 38.2-1913.

HISTORY: 2013, cc. 518, 540, 543, 583; 2014, cc. 217, 630; 2015, cc. 350, 570,
760, 776; 2016, cc. 174, 175, 295, 362, 754; 2019, c. 274; 2020, c. 1158; 2024,
cc. 688, 705.