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Doing Business With Fairfax County

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

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Doing Business With Fairfax County

  1. 1. Doing Business with Fairfax County: A Procurement Law Primer<br />Fairfax County Vendor Forum<br />March 15, 2010<br />General Counsel, P.C.<br />© 2010 General Counsel, P.C.<br />
  2. 2. Presenter<br />Brandon Okes<br />Attorney with General Counsel, P.C.<br />Practice corporate law<br />Work extensively with businesses selling to governments—federal, state, and local<br />Also teach for the Fairfax County Public Schools Adult & Community Education Program<br />© 2010 General Counsel, P.C.<br />
  3. 3. General Counsel, P.C.<br />Offices in McLean<br />Founded 2004<br />15 attorneys<br />Focused on representing businesses and business owners<br />Serve as outside general counsel to small- and medium-sized businesses<br />© 2010 General Counsel, P.C.<br />
  4. 4. General Counsel, P.C. Practice Areas<br />Corporate<br />Government Contracts<br />Labor and Employment<br />Litigation<br />Intellectual Property<br />Estate Planning<br />Probate Representation<br />Non-Profit<br />© 2010 General Counsel, P.C.<br />
  5. 5. Agenda<br />Governing Law<br />Methods of Procurement<br />Preparing to Respond to an Opportunity<br />Getting Paid<br />Restrictions on County Contractors<br />Remedies for Vendors<br />© 2010 General Counsel, P.C.<br />
  6. 6. Governing Law<br />The Legislative Underpinnings<br />© 2010 General Counsel, P.C.<br />
  7. 7. Governing Law<br />For solicited business—the standard rules:<br />Virginia Public Procurement Act (VPPA)<br />Fairfax County Purchasing Resolution<br />Alternative related to projects with public-private ownership:<br />Public-Private Education Facilities and Infrastructure Act of 2002 (PPEA)<br />© 2010 General Counsel, P.C.<br />
  8. 8. Procurement Categories<br />Goods<br />Services<br />Professional (e.g. doctor, architect, engineer)<br />Consultant (e.g. business coach)<br />Non-professional (everything else)<br />Construction<br />Insurance<br />© 2010 General Counsel, P.C.<br />
  9. 9. Methods of Procurement<br />The County’s Rules for Making Purchases<br />© 2010 General Counsel, P.C.<br />
  10. 10. Methods of Procurement<br />General Rule: Competitive Procurement<br />Competitive Sealed Bidding<br />Competitive Negotiation<br />Exceptions to Competitive Procurement*<br />Small Purchase<br />Open Market<br />Sole Source<br />Emergency<br />Insurance<br />Proposals under PPEA<br />(* for the full list of exceptions, see the County Purchasing Resolution)<br />© 2010 General Counsel, P.C.<br />
  11. 11. Competitive Procurement<br />Sealed Bidding<br />Negotiation<br />Used when County knows exactly what it wants to purchase<br />The default method for goods, construction, and non-professional services<br />Used when County does not know exactly what it wants to purchase<br />Must be used for professional services<br />May be used for goods or non-professional services IF the County determines that negotiation is preferable to sealed bids<br />May be used for certain construction projects (e.g., design-build projects)<br />© 2010 General Counsel, P.C.<br />
  12. 12. Competitive Procurement (cont.)<br />Sealed Bidding<br />Negotiation<br />Starts with an “Invitation to Bid”<br />Describes specifically what County wants to procure<br />Starts with a “Request for Proposals”<br />Describes generally what County wants to procure<br />Specifies the factors that County will use to evaluate the proposals<br />© 2010 General Counsel, P.C.<br />
  13. 13. Competitive Procurement (cont.)<br />Sealed Bidding<br />Negotiation<br />Invitation to Bid is posted for at least 10 days<br />Potential vendors can select on eVA to receive relevant Invitations to Bid<br />Bidders must get bids in by the deadline<br />Request for Proposals is posted for at least 10 days (if estimated amount over $50,000)<br />Potential offerors can select on eVA to receive relevant public Requests for Proposal<br />Offerors must get offers in by the deadline<br />© 2010 General Counsel, P.C.<br />
  14. 14. Competitive Procurement (cont.)<br />Sealed Bidding<br />Negotiation<br />Contract awarded to “responsive and responsible” bidder with the lowest price<br />County picks at least two offerors for to interview (the “short list”)<br />Contract awarded to offeror with the “best” proposal<br />Note: the “best” proposal doesn’t necessarily have the lowest price<br />© 2010 General Counsel, P.C.<br />
  15. 15. Competitive Procurement (cont.)<br />Sealed Bidding<br />Negotiation<br />County may not cancel the Invitation to Bid or reject all of the bids just to avoid awarding the contract to a particular bidder<br /><ul><li>County must justify in writing a finding that the apparent low bidder is not a responsible bidder</li></ul>County may reject all the bids if it believes a rebid will increase competition<br />County may not cancel the Request for Proposals or reject all of the bids just to avoid awarding the contract to a particular bidder<br />County may reject all the offers if it believes a re-proposal will increase competition<br />© 2010 General Counsel, P.C.<br />
  16. 16. Exception #1: Small Purchase<br />When:<br />Purchase amount is less than $5,000<br />Rules:<br />None, but preference given to vendors registered with eVA and/or with existing contracts<br />© 2010 General Counsel, P.C.<br />
  17. 17. Exception #2: Open Market<br />When: <br />Purchase of goods, insurance, construction, consultant services, or non-professional services<br />Estimated cost between $5,000 and $50,000<br />Rules:<br />$5,000-$10,000 estimate: three oral or written quotes<br />$10,001-$50,000 estimate: four written bids<br />© 2010 General Counsel, P.C.<br />
  18. 18. Exception #3: Sole Source<br />When:<br />“There is only one source practicably available”<br />Rules:<br />The sole source gets the contract<br />County must post notice that the contract was awarded on a sole-source basis<br />© 2010 General Counsel, P.C.<br />
  19. 19. Exception #4: Emergency<br />When:<br />“Circumstances arise causing curtailment or dimunition of essential service”<br />Rules:<br />Do not have to go through full competitive procurement process<br />County should get quotes from a few vendors if time allows<br />© 2010 General Counsel, P.C.<br />
  20. 20. Exception #5: Insurance<br />When: <br />County purchases insurance<br />Rules:<br />Purchase directly through an insurance broker; do not advertise or use competitive procurement methods<br />© 2010 General Counsel, P.C.<br />
  21. 21. Exception #6: PPEA<br />When: <br />A proposal is made by a vendor or the County under the Public-Private Education Facilities and Infrastructure Act of 2002<br />Rules:<br />The proposal is evaluated as required in the PPEA, and is exempt from competitive procurement<br />© 2010 General Counsel, P.C.<br />
  22. 22. Piggybacking on Another Agency’s Contract<br />County may skip all these procurement steps if there is an existing contract off of which it may make the purchase<br />Examples:<br />State contracts<br />Cooperative purchasing arrangements<br />When you make a bid, you may specify whether other government agencies may purchase at the same terms<br />© 2010 General Counsel, P.C.<br />
  23. 23. Preparing to Respond to an Opportunity<br />The Steps You Can Start Taking Now<br />© 2010 General Counsel, P.C.<br />
  24. 24. Important Registrations<br />Register your business in Fairfax if it is located in Fairfax or does business in Fairfax<br /><ul><li>Register for eVA</li></ul>Obtain SWaM Certification, if applicable<br />Register to receive updates from the County on vendor opportunities<br />© 2010 General Counsel, P.C.<br />
  25. 25. Responsive and Responsible<br />Prepare to be responsive to the County (“submit a bid which conforms in all material respects to the Invitation to Bid or Request for Proposal”)<br />i.e., follow the County’s instructions<br />note: brand names are not a material requirement, but bid must include equivalent goods<br />Ensure that your business is a “responsible bidder or offeror” with respect to the contract you are seeking<br />© 2010 General Counsel, P.C.<br />
  26. 26. Demonstrating Responsibility<br />Pick contracting opportunities that match your business’s abilities<br />For competitive sealed bidding: be a “responsible vendor”—capable of carrying out the contract requirements and able to assure the County you will perform in good faith<br />For competitive negotiation: be able to meet the criteria specified in the Request for Proposals<br />For noncompetitive procurements: create a personal assurance of responsibility by getting to know the purchasing agents who cover the government agencies you are targeting<br />County looks at a number of factors<br />© 2010 General Counsel, P.C.<br />
  27. 27. “Responsible Vendor” Factors<br />1. The ability, capacity and skill of the bidder to perform the contract or provide the service required; <br />2. Whether the bidder can perform the contract or provide the service promptly, or within the time specified, without delay or interference; <br />© 2010 General Counsel, P.C.<br />
  28. 28. “Responsible Vendor” Factors (cont.)<br />3. The character, integrity, reputation, judgment, experience and efficiency of the bidder; <br />4. The quality of performance of previous contracts or services; <br />5. The previous and existing compliance by the bidder with laws and ordinances relating to the contract or services;<br />© 2010 General Counsel, P.C.<br />
  29. 29. “Responsible Vendor” Factors (cont.)<br />6. The sufficiency of the financial resources and ability of the bidder to perform the contract or provide the service;<br />7. The quality, availability and adaptability of the goods or services to the particular use required; <br />8. The ability of the bidder to provide future maintenance and service for the use of the subject of the contract;<br />© 2010 General Counsel, P.C.<br />
  30. 30. “Responsible Vendor” Factors (cont.)<br />9. Whether the bidder is in arrears to the County on debt or contract or is a defaulter on surety to the County or whether the bidder's County taxes or assessments are delinquent; and<br />10. Such other information as may be secured by the County Purchasing Agent having a bearing on the decision to award the contract.<br />© 2010 General Counsel, P.C.<br />
  31. 31. Getting Paid<br />How to Access the County’s Money<br />© 2010 General Counsel, P.C.<br />
  32. 32. Payment Methods<br />Purchasing Card<br />Purchases under $2,500<br />ACH or Check<br />Must send invoice that includes purchase order number and the name of the agency that made the purchase<br />Generally, submit invoice as soon as you have delivered the goods/services<br />County will not pay on an invoice unless your business has on file an IRS Form W-9 (with the business’s EIN)<br />© 2010 General Counsel, P.C.<br />
  33. 33. Restrictions on County Contractors<br />The County’s Way of Ensuring that You Follow Its Rules<br />© 2010 General Counsel, P.C.<br />
  34. 34. Restrictions that Come with a Fairfax Government Contract<br />Increased Oversight<br />Tax compliance<br />Non-discrimination in employment<br />Drug-free workplace<br />Immigration status of employees<br />Anti-bribery certifications<br />Compliance with the terms of federal grants<br />Advertising cannot suggest Fairfax government endorsement<br />County has audit rights for three years after final payment on contract<br />© 2010 General Counsel, P.C.<br />
  35. 35. Withdrawing a Bid/Offer<br />Generally, may withdraw at will before deadline<br />After deadline, may only withdraw for limited circumstances and in very limited time<br />Error in judgment is not basis for withdrawal<br />© 2010 General Counsel, P.C.<br />
  36. 36. Consequences of Violating Restrictions<br />Contract damages<br />Suspension or debarment from future procurement opportunities<br />© 2010 General Counsel, P.C.<br />
  37. 37. Remedies for Vendors<br />Ensuring the County Follows Its Rules<br />© 2010 General Counsel, P.C.<br />
  38. 38. Appeals of County Contracting Decisions<br />Appeal of Determination of Nonresponsibility<br />Only applies if bidder was the low bidder<br />Appeal of Determination of Ineligibility<br />Ineligibility = Suspension or Debarment<br />Appeal of Denial of Withdrawal of Bid<br />Protest of Award or Decision to Award<br />May not protest on grounds that winning bidder is nonresponsible<br />May protest on basis that sole source or emergency exceptions did not apply<br />© 2010 General Counsel, P.C.<br />
  39. 39. Appeals of County Contracting Decisions (cont.)<br />Time: generally, must appeal within 10 days of the relevant decision<br />Rule: County decision stands unless it was “arbitrary and capricious”<br />© 2010 General Counsel, P.C.<br />
  40. 40. Contractual Disputes<br />Notify the County if you have a claim for money or other relief related to your performance on a County contract<br />First, try to settle any dispute amicably<br />If that does not succeed, send a detailed description of the claim to the County Purchasing Agent<br />County Purchasing Agent makes decision on the complaint within 30 days<br />Aggrieved vendor may appeal Agent’s decision to Fairfax Circuit Court within six months<br />© 2010 General Counsel, P.C.<br />
  41. 41. © 2010 General Counsel, P.C.<br />Links<br />eVA: http://www.eva.state.va.us/<br />SWaM: http://www.dmbe.virginia.gov/swamcert.html<br />Fairfax County Department of Purchasing and Supply Management: http://www.fairfaxcounty.gov/dpsm/<br />Current Fairfax Procurement Opportunities:<br />http://www.fairfaxcounty.gov/dpsm/solic.htm<br />Fairfax Business Taxes: http://www.fairfaxcounty.gov/dta/businesstax_home.htm<br />
  42. 42. © 2010 General Counsel, P.C.<br />Questions<br />Brandon Okes<br />General Counsel, P.C.<br />6862 Elm Street, Suite 800<br />McLean, Virginia 22101<br />p: (703) 556-0411<br />e: bokes@generalcounsellaw.com<br />w: http://www.generalcounsellaw.com<br />

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