School Board of the City of Virginia Beach
Policy 3-90
BUSINESS AND NONINSTRUCTIONAL OPERATIONS
Contract Execution Policy For Capital Improvement Program (CIP) Projects
A. Generally
This policy establishes a uniform procedure for the review, approval and execution of School Board contracts and contract change orders for Capital Improvement Program (CIP) Projects by officers and employees of the Board. As used herein, the phrase "School Board contract" means any contract or agreement to which the School Board or School Administration is a named party, or which any school officer or employee enters into on behalf of the School Board or School Administration. For execution of contracts which do not involve CIP projects refer to School Board Policy 3-89 "General Contract Execution Policy."
B. Applicability
This policy shall be applicable only to School Board construction or architectural/engineering (A/E) contracts for CIP projects entered into with any person. For purposes of this policy, "person" shall be deemed to include any individual, or any corporation, partnership, firm, organization or other group or association of persons acting as a unit. Notwithstanding the above, this policy shall not be applicable to (i) routine contracts of employment budgeted by the Board and authorized by the Assistant Superintendent of Human Resources; (ii) contracts entered into by the Superintendent, with the approval of the Board Chairman, in response to an emergency provided that the contract does not exceed $300,000, and further provided that the Superintendent documents, in writing, that an emergency exists and that delay in executing the contract will be detrimental to the interests of the school division; or (iii) contracts covered by Policy 3-89, General Contract Execution Policy.
C. Contract Review and Approval
1. Content
Every contract shall be reviewed by the Director of the Office of Facilities Planning & Construction (Director, FPC) or his/her duly authorized designee. Every contract shall also be signed (or initialed) "approved as to content" by such individual or his/her designee. When an individual signs (or initials) a contract "approved as to content," the individual is representing that he or she (i) has read the contract, (ii) agrees with the terms and conditions contained therein, and (iii) is satisfied that the terms and conditions of the contract accurately reflect the agreement that was reached between the parties thereto.
2. Fiscal Note
Every contract shall have a fiscal note attached thereto in a form prescribed by the Office of Business Services. The fiscal note, which must be prepared by the Office of Facilities Planning & Construction, shall provide an estimate of the "total cost to complete" the project, including the contract base cost, and shall compare the "total cost to complete" to the project budget. A copy of the fiscal note shall be provided to the Office of Business Services at the time the contract is prepared. If the contract does not involve the expenditure of funds, the Director, FPC or his/her authorized designee shall indicate "N/A" (not applicable) on the fiscal note and shall place his/her signature or initials adjacent thereto.
3. Availability of Funds
Every contract exceeding $30,000 shall be signed or initialed "approved as to availability of funds" by the Director of the Office of Business Services or his/her duly authorized designee. Every contract of $30,000 or less shall be initialed "approved as to availability of funds" by the individual in charge of the department, office or other agency from which the contract originated.
If it is determined by the Office of Business Services that there are insufficient funds available to approve the contract, the contract shall be referred back to the Office of Facilities Planning & Construction for a determination as to whether Facilities Planning & Construction desires to request a transfer of the necessary funds for the contract to be approved and executed. If the agency decides to request such a transfer, the request shall be forwarded to the Office of Budget Development for appropriate action.
4. Legal Sufficiency
A/E contracts exceeding $30,000 and construction contracts exceeding $50,000 shall be forwarded to legal counsel for review as to legal sufficiency once they have (i) been "approved as to content," (ii) had the required fiscal note placed thereon and (iii) been "approved as to availability of funds."
When legal counsel signs (or initials) a contract as being "legally sufficient," he or she is only certifying that the contract complies with all applicable laws, policies and regulations, contains all necessary contractual provisions, and is legally enforceable. Legal counsel is not indicating his/her approval of the contents of the contract or the purposes for which the contract is being entered into.
5. School Board Approval
Prior to contract execution, all A/E proposals exceeding $30,000 and construction bids exceeding $50,000 shall be submitted to the School Board for approval. The following information shall be included with the School Board Agenda item:
a. A/E Proposals
The name of the A/E firm selected, the name of the project, the proposed contract amount and the design budget.
b. Construction Bids
The name of the lowest responsive and responsible bidder, the name of the project along with a description, the proposed contract amount, the construction budget and a summary of the bid results.
D. Contract Execution
Once a contract has gone through the above-stated review and approval process, it shall be forwarded to the Superintendent for final execution:
1. The Superintendent or his/her duly authorized designee shall execute all contracts on behalf of the School Board. In that regard, the Superintendent may delegate in writing the authority to execute contracts on a "contract-by-contract" basis or may establish a written list of the types of contracts that specific designees shall have the authority to execute on an ongoing basis until such time as the delegation is amended or revoked.
2. Notwithstanding any provision herein to the contrary, the Superintendent or his/her designee is not authorized to execute any contract which contains a clause, paragraph or provision ("Provision") designed to "indemnify" or "hold harmless" the provider of goods or services for liability due to negligence or an intentional act of the provider in the performance of the contract. If a contract contains such a Provision, and the service provider will not agree to remove the Provision from the contract, the Superintendent, his/her designee or the purchasing agent shall forward the contract to legal counsel for final resolution.
3. Notwithstanding any provision herein to the contrary, the Superintendent or his/her designee is not authorized to execute any contract which contains a clause, paragraph, or provision ("Provision") agreeing or authorizing either party to submit any dispute arising from the contract or the performance thereof to any alternative dispute resolution procedure, including, but not limited to, arbitration and mediation. If a contract contains such a Provision, and the service provider will not agree to remove the Provision from the contract, the Superintendent, his/her designee or the purchasing agent shall forward the contract to legal counsel for final resolution.
Upon advice and approval of the School Board's legal counsel, the Director, FPC may agree to submit any contractual dispute to nonbinding alternative dispute resolution procedures, including, but not limited to arbitration and mediation.
E. Contract Change Order Review and Approval
1. Content
Every contract change order shall be reviewed by the Director, FPC or his/her duly authorized designee. Every change order shall also be signed (or initialed) "approved as to content" by such individual or his/her designee. When an individual signs (or initials) a change order "approved as to content," the individual is representing that he or she (i) has read the change order ii) agrees with the terms and conditions contained therein, and (iii) is satisfied that the terms and conditions of the change order accurately reflect the agreement that was reached between the parties thereto.
However, any proposed contract change order on a fixed-price contract for an amount more than twenty-five percent of the contract amount or $50,000, whichever is greater, requires advance written approval by the School Board.
2. Fiscal Note
Every contract change order shall have a fiscal note attached thereto in a form prescribed by the Office of Business Services. The fiscal note, which must be prepared by the Office of Facilities Planning & Construction, shall provide the cost of the change order and the revised contract amount and shall compare the revised contract amount to the project budget. A copy of the fiscal note shall be provided to the Office of Business Services at the time the contract change order is prepared.
3. Availability of Funds
Every contract change order shall be signed or initialed "approved as to availability of funds" by the Director of the Office of Business Services or his/her duly authorized designee.
If it is determined by the Office of Business Services that there are insufficient funds available to approve the change order, the change order shall be referred back to the Office of Facilities Planning & Construction for a determination as to whether or not Facilities Planning & Construction desires to request a transfer of the necessary funds for the change order to be approved and executed. If the Office of Facilities Planning & Construction decides to request such a transfer, the request shall be forwarded to the Office of Budget Development for appropriate action.
4. Contract Change Order Execution
Every contract change order shall be executed by either the Assistant Superintendent of Administrative Support Services or the Director, FPC.
F. Compliance with School Board Policies and Regulations
The provisions of this policy supplement, but do not supersede, other applicable School Board policies and regulations. Therefore, any contract or contract change order that is negotiated, awarded and executed pursuant to this policy shall comply with any other applicable policies and regulations.
G. Failure to Follow Contract Execution Policy
Any individual purporting to execute contracts who executes a contract or change order on behalf of the School Board without the requisite School Board authority in accordance with this policy may be held personally liable for any or all of the obligations imposed on the Board by such contract or change order.
Legal Reference:
Virginia Constitution Article VIII, § 7 School Board.
Code of VA. § 2.2-4303 G. Virginia Public Procurement Act.
Code of VA. § 22-1-28 Supervision of Schools in Each Division Vested in School Board.
Code of VA. § 22 1-70 Powers and Duties of Superintendent.
Code of VA. § 22 1-71 School Board Constitutes Body Corporate; Corporate Powers.
Code of VA. § 22 1-79 Powers and Duties.
Code of VA. § 22 1-89 Management of Funds.
Code of VA. § 22 1-91 Limitation on Expenditures; Penalty.
Cross Reference:
School Board Policy 3-39 Competitive Negotiations/Awards: Procurement of Professional Architectural and Engineering Services.
School Board Policy 3-89 General Contract Execution Policy.
Adopted by School Board: April 21, 1998
Amended by School Board: February 19, 2002
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Last Modified on Tuesday, October 18, 2005 Disclaimer • Site Map |
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