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06.21.2010 2010 Construction Industry Legislative Update
06.21.2010

The following are summaries of construction-related legislation that passed in the regular session of the 2010 General Assembly:

THE VIRGINIA PUBLIC PROCUREMENT ACT (VPPA)

The General Assembly amended several sections of the VPPA governing contract formation and administration as follows:

Methods of Procurement
The General Assembly amended Virginia Code § 2.2-4303 to increase from $1 million to $1.5 million the cost of a construction contract for which a state or local public body may use competitive negotiation, instead of competitive bidding, to procure the construction.

State-Aid Construction Projects
The General Assembly also amended Virginia Code § 2.2-4305, which governs competitive procurement by localities on state-aid projects, to raise the competitive bidding/competitive negotiation dollar threshold from $30,000 to $50,000 for state aid construction projects.

Foreign and Domestic Businesses Authorized to Transact Business in the Commonwealth
The General Assembly enacted a new section to the VPPA, Virginia Code § 2.2-4311.2. This section adds the requirement that all public bodies must include in every written contract a provision that a contractor entity shall be authorized to transact business in the Commonwealth as a domestic or foreign business entity if so required by law. This section further requires that all public bodies shall include in the solicitation for competitive sealed bidding or competitive negotiation a provision that requires a bidder or offerer to include its identification number issued by the State Corporation Commission or a statement describing why the bidder or offerer is not required to be so authorized. Any such entity that fails to comply shall not be awarded a contract unless a waiver is provided. Any business entity that enters into a contract with a public body pursuant to the VPPA shall not allow its existence to lapse or its certificate of authority or registration to transact business in the Commonwealth to be revoked or cancelled at any time during the term of the contract. A public body may void any contract with a business entity if that business entity fails to remain in compliance with the provisions of this section.


UNIFORM STATEWIDE BUILDING CODE; VIOLATIONS; NON-RESIDENTIAL PROPERTY

Chapter 6 of Title 36 of the Virginia Code provides the Uniform Statewide Building Code, and Virginia Code § 36-106 governs violations of the Building Code. The General Assembly amended this section as it relates to non-residential buildings or structures and provides that a Court may order the violator to abate or otherwise remedy the violation if the violation remains at the time that the Court assesses civil penalties.

MECHANICS’ AND MATERIALMEN’S LIENS

Title 43 of the Virginia Code governs Mechanics’ and Materialmen’s Liens. The General Assembly amended Virginia Code § 43-1 to remove the definitional requirement that one must give consent “in writing” in order to be a mechanics’ lien agent. Section 43-4.01 was further amended to allow any person entitled to claim a lien to notify the mechanics’ lien agent that he seeks payment for labor performed or materials furnished if the building permit contains the name, mailing address, and telephone number of the mechanics’ lien agent. Current law provides that any such person was entitled to notify the mechanics’ lien agent only if, at the time of issuance, the building permit contained the name, mailing address, and telephone number of the mechanics’ lien agent. The new law specifically provides that a permit may be amended after initial issuance to name a mechanic’s lien agent.

TITLE 54.1 OF THE VIRGINIA CODE

Title 54.1 of the Virginia Code governs Professions and Occupations. The General Assembly amended this Title as follows:

Prerequisites for Obtaining a Business License
Chapter 11 of Title 54.1 governs the regulation of contractors. Virginia Code § 54.1-1111 provides the prerequisites for obtaining a business license. The General Assembly amended this section to require that any contractor applying for or renewing a business license in any locality shall furnish, prior to the issuance or renewal of such license, either (i) satisfactory proof that he is duly licensed as a contractor or (ii) a written statement, supported by an affidavit, that he is not subject to licensure or certification as a contractor or subcontractor. The amendment also prohibits any locality from issuing or renewing a business license unless the contractor has furnished his contractor license or certificate number or evidence of being exempt from licensure as a contractor.

Certification of Accessibility Mechanics
The General Assembly amended the Definitions section of Chapter 11, Article 4, governing elevator mechanics, to include the definition of “Accessibility Mechanic,” an individual engaged in erecting, constructing, installing, altering, servicing, repairing, testing or maintaining wheelchair lifts, incline chair lifts, certain dumbwaiters, and private residence elevators in accordance with the Uniform Statewide Building Code. The amendment further includes a requirement that the mechanic receive a Certification of Accessibility Mechanics by the Board for Contractors after the mechanic completes the appropriate training and education requirements.

Board for Contractors; Membership
Virginia Code § 54.1-1102 governs the membership for the Board for Contractors. The General Assembly amended this section to add a certified water well systems provider as a member of the Board for Contractors.

Limitation of Liability Contract Clauses; Architects, Professional Engineers, Surveyors, Landscape Architects and Certified Interior Designers
Chapter 2 of Title 54.1 governs architects, professional engineers, surveyors, landscape architects and certified interior designers. The General Assembly amended Virginia Code § 54.1-411 to allow entities consisting of these design professionals to limit their liability through clauses in their contracts to perform services. However, this section further provides that no individual may be relieved of any responsibility that may exist for services performed by reason of employment or other relationship with an entity.

Issuance of License; Emeritus Designation
Virginia Code § 54.1-405 governs the examinations and issuance of licenses and certificates to professional engineers, architects, land surveyors and landscape architects. The General Assembly amended this section to establish an emeritus designation for licensees who have retired from the practice provided (i) their license has not been revoked or suspended by the Board and, (ii) the license holder does not practice or offer to practice architecture, engineering, land surveying, or landscape architecture.

For more information about this topic, please contact the author or any member of the Williams Mullen Construction Practice Team.



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This newsletter contains general, condensed summaries of actual legal matters, statutes and opinions for information purposes. It is not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel. © Williams Mullen. All rights reserved.