The School Board requires compliance with both the word and the intent of Article 6 of the Virginia Public Procurement Act, entitled "Ethics in Public Contracting." This regulation details the provisions of this law.
The words defined in this regulation shall have the meanings set forth below:
- "Immediate family" means a spouse, children, parents, brothers and sisters, and any other person living in the same household as the employee.
- "Official responsibility" means administrative or operating authority, whether immediate or final, to initiate, approve, disapprove or otherwise affect a procurement transaction, or any claim resulting therefrom.
- "Pecuniary interest arising from the procurement" means a personal interest in a contract as defined in the State and Local Government Conflict of Interests Act.
- "Procurement transaction" means all functions that pertain to the obtaining of any goods, services or construction, including description of requirements, selection and solicitation of sources, preparation and award of contract, and all phases of contract administration.
C. Proscribed Participation by Public Employees in Procurement Transactions
No public employee having official responsibility for a procurement transaction shall participate in that transaction on behalf of the School Board when the employee knows that:
- The employee is contemporaneously employed by a bidder, offeror or contractor involved in the procurement transaction;
- The employee, the employee's partner, or any member of the employee's immediate family holds a position with a bidder, offeror or contractor such as an officer, director, trustee, partner or the like, or is employed in a capacity involving personal and substantial participation in the procurement transaction, or owns or controls an interest of more than five percent;
- The employee, the employee's partner, or any member of the employee's immediate family has a pecuniary interest arising from the procurement transaction;
- The employee, the employee's partner, or any member of the employee's immediate family is negotiating, or has an arrangement concerning, prospective employment with a bidder, offeror or contractor.
D. Disclosure of Subsequent Employment
No public employee or former public employee having official responsibility for procurement transactions shall accept employment with any bidder, offeror or contractor with whom the employee or former employee dealt in an official capacity concerning procurement transactions for a period of one year from the cessation of employment by the School Board unless the employee, or former employee, provides written notification to the Superintendent prior to commencement of employment by that bidder, offeror or contractor.
E. Solicitation or Acceptance of Gifts
No public employee having official responsibility for a procurement transaction shall solicit, demand, accept, or agree to accept from a bidder, offeror, contractor or subcontractor any payment, loan, subscription, advance, deposit of money, services or anything of more than nominal or minimal value, present or promised, unless consideration of substantially equal or greater value is exchanged. The School Board may recover the value of anything conveyed in violation of this section.
No bidder, offeror, contractor or subcontractor shall confer upon any employee having official responsibility for a procurement transaction any payment, loan, subscription, advance, deposit of money, services or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is exchanged.
- No contractor or subcontractor shall demand or receive from any of his suppliers or his subcontractors, as an inducement for the award of a subcontract or order, any payment, loan, subscription, advance, deposit of money, services or anything, present or promised, unless consideration of substantially equal or greater value is exchanged.
- No subcontractor or supplier shall make, or offer to make, kickbacks as described in this regulation.
- No person shall demand or receive any payment, loan, subscription, advance, deposit of money, services or anything of value in return for an agreement not to compete on a public contract.
- If a subcontractor or supplier makes a kickback or other prohibited payment as described in this regulation, the amount thereof shall be conclusively presumed to have been included in the price of the subcontract or order and ultimately borne by the School Board and will be recoverable from both the maker and recipient. Recovery from one offending party shall not preclude recovery from other offending parties.
G. Participation in Bid Preparation
No person who, for compensation, prepares an invitation to bid or request for proposal for or on behalf of a public body shall (i) submit a bid or proposal for that procurement or any portion thereof or (ii) disclose to any bidder or offeror information concerning the procurement that is not available to the public. However, a public body may permit such person to submit a bid or proposal for that procurement or any portion thereof if the public body determines that the exclusion of the person would limit the number of potential qualified bidders or offerors in a manner contrary to the best interests of the public body.
H. Purchase of Building Materials, etc. from Architect or Engineer Prohibited
Except in cases of emergency, no building materials, supplies or equipment for any building or structure constructed by or for the School Board shall be sold by or purchased from any person employed as an independent contractor by the School Board to furnish architectural or engineering services, but not construction, for such building or structure, or from any partnership, association, or corporation in which such architect or engineer has a personal interest.
No building materials, supplies or equipment for any building or structure constructed by or for the School Board shall be sold by or purchased from any person who has provided or is currently providing design services specifying a sole source for such materials, supplies or equipment to be used in the building or structure to the independent contractor employed by the public body to furnish architectural or engineering services in which such person has a personal interest as defined in.
I. Certification of Compliance Required
The School Board may require employees having official responsibility for procurement transactions in which they participated to annually submit for such transactions a written certification that they complied with the provisions of this article.
Any employee required to submit a certification as provided in subsection A who knowingly makes a false statement in the certification shall be punished as provided in § 2.2-4377.
J. Misrepresentations Prohibited
No employee having official responsibility for a procurement transaction shall knowingly falsify, conceal, or misrepresent a material fact; knowingly make any false, fictitious or fraudulent statements or representations; or make or use any false writing or document knowing it to contain any false, fictitious or fraudulent statement or entry.
K. Penalty for Violation
Willful violation of any provision of this regulation shall constitute a Class 1 misdemeanor. Upon conviction, any employee, in addition to any other fine or penalty provided by law; shall forfeit his/her employment.
Regulatory Authority: 1982 (Effective January 1, 1983)
"Virginia Public Procurement Act." (See reference in Policy DJAZ)
Approved by Superintendent: August 2, 1983
Revised by School Board: November 6, 2019