720P - Purchasing Policy

1. Authority

The provisions of the Virginia Public Procurement Act, § 2.2, Chapter 43, of the Code of Virginia, as amended from time to time, which are mandatory for school divisions are hereby incorporated and adopted into the policy of the Frederick County School Board.

It is the intent of the Frederick County School Board to obtain high quality goods and services at a reasonable cost and to conduct its purchasing procedures in a fair and impartial manner without impropriety or the appearance of impropriety. Maximum feasible competition will be sought, giving all qualified vendors access to School Board business with no bidder or offeror arbitrarily or capriciously excluded.

2. Purpose

The purpose of this policy is to increase public confidence in purchasing by the School Board, to encourage competition in public purchasing among vendors or contractors, to administer fairly and equitably purchasing policies among bidders, and to obtain high quality goods and services at the lowest possible price. Within established policies, regulations and other legal requirements, FCPS shall utilize the procurement method that allows the attainment of the best value for that which is being procured.

3. Application

A. This policy applies to all public contracts with non-governmental contractors for the purchase or lease of goods, or for the purchase of services, insurance, or construction.

B. Nothing in this policy shall prevent the board from complying with the terms and conditions of any grant, gift, or bequest which are not prohibi­ted by law. 

4. Definitions

A. The definitions set forth in the Code of Virginia, § 2.2-4301 are incorporated herein by reference.

B. As used herein, “Superintendent” shall include his/her designee.

5. Administration

A. The Superintendent shall serve as the purchasing official for the School Board and shall be responsible for the procurement of goods, services, insurance, and construction in accordance with the policy. The Superintendent shall promulgate such regulations as may be appropriate to carry out his/her duties hereunder.

B. The Superintendent may delegate to authorized administrative personnel the authority to make purchases for the school division. Such purchases must be consistent with this policy and shall be under the direction and supervision of the Superintendent. The Superintendent and his/her designee(s) shall be authorized to procure and enter into all types of contracts and agreements in accordance with School Board direction, policies, regulations, and the Virginia Public Procurement Act, regardless of the source of funds.

C. The Superintendent shall award all contracts up to and including $250,000 in total cost. Any contract exceeding $250,000 shall be awarded by motion or resolution of the School Board. Bid or Proposal summaries for contracts over $100,000 shall be submitted to the School Board on a monthly basis as informational items.

6. Methods of Procurement

A procurement from non-governmental sources is performed by one of the following methods:

A. Small Purchases are general purchases where the estimated total cost of the materials, equipment, supplies, shipping, insurance, and/or services is less than $100,000; or, in the case of professional services, is less than $60,000. These purchases do not require formal competitive sealed bids or competitive negotiation. Small purchases shall adhere to the established small purchase regulations.

Provided that the School Board establishes purchase procedures in writing, all single or term contracts for goods and services other than professional services not expected to exceed $100,000 shall not be subject to the competitive sealed bidding or competitive negotiation provisions herein. The Superintendent, or designee, shall, whenever the amount of such contract exceeds $5,000, but is not greater than $30,000, secure three or more proposals in the commodity area of the transaction. Written quotations from vendors shall be obtained where practical, although verbal quotations will be permitted provided the Superintendent or designee shall cause a written record to be filed with the records of the transaction. Four written quotes are required when the amount of such contract exceeds $30,000 but is not greater than $100,000. Written informal solicitations above $30,000 shall be posted to the FCPS website.

The Superintendent may allow additional flexibility to the small purchase procedures to facilitate efficient operation of the school division.

B. Competitive Sealed Bidding includes the issuance of a written Invitation for Bids (IFB), posting of notice in newspaper and/or on FCPS website, receipt of sealed bids and award to the lowest responsive and responsible bidder. This method of purchasing is used where the total cost of materials, equipment, supplies and/or services is expected to exceed $100,000. 

Bids shall be submitted sealed to the Superintendent or designee and shall be identified as bids on the envelope.

Bids shall be opened in public at the time and place stated in the public notices. The amount of each bid, and such other relevant information as the Superintendent deems appropriate, together with the name of each bidder shall be recorded; the record and each bid shall be open to public inspection.

C. Competitive Negotiation includes the issuance of a written Request for Proposals (RFP), posting of notice in newspaper and/or on FCPS website, receipt of proposals, negotiations, and award to the most highly qualified offeror according to criteria established in the solicitation. This method is used for professional services and in other cases upon written determination by Superintendent or designee, that competitive sealed bidding is either not practicable (e.g., unable to clearly define requirements), or not fiscally advantageous to the school division.

Professional services shall be procured by competitive negotiation, except that contracts for professional services not expected to exceed $60,000 may be awarded without competitive negotiation.

Upon a determination in writing made in advance by the Superintendent, or designee, that competitive sealed bidding is either not practicable or not advantageous to the public, goods, non-professional services, insurance, or construction may be procured by competitive negotiation. The writing shall document the basis for this determination.

D. Sole Source includes situations where only one source is practicably available for that which is being procured. Upon a determination in writing that there is only one source practicably available for that which is to be procured, a contract may be negotiated and awarded to that source without competitive sealed bidding or competitive negotiation.

The writing shall document the basis for this determination and shall be prepared by the account manager responsible for the purchase. The Superintendent, or designee, shall issue a written notice stating that only one source was determined to be practicably available, and identifying that which is being procured, the contractor selected, and the date on which the contract was or will be awarded. This notice shall be posted on the FCPS website on the day the contract is awarded or the decision to award the contract is announced, whichever occurs first.

E. Emergency Purchases: are those made in order to protect personal safety, life, or property, i.e. an event of a serious, urgent, and threatening nature that demands immediate action to avoid interruption of essential services or a dangerous condition. Competition is not required, but should be sought if practicable under the circumstances. The Superintendent, or designee, shall issue a written notice stating that the contract is being awarded on an emergency basis, and identifying that which is being procured, the contractor selected, and the date on which the contract was or will be awarded shall be issued and posted on the FCPS website on the day the contract is awarded or the decision to award the contract is announced, whichever occurs first.

F. Cooperative Procurement: The Frederick County School Board may participate in, sponsor, conduct, or administer a cooperative procurement agreement on behalf of or in conjunction with one or more other public bodies, or public agencies or institutions or localities of the several states, of the United States or its territories, the District of Columbia, or the U.S. General Services Administration. FCPS may purchase from any public authority, department, agency or institution even if it did not participate in the request for proposal or invitation to bid, if the request for proposal or invitation to bid specified that the procurement was being conducted on behalf of other public bodies.

FCPS may purchase goods and nonprofessional services from a U.S. General Services Administration contract or a contract awarded by any other agency of the U.S. government.

FCPS may utilize cooperative purchasing when it is determined by the Superintendent, or designee that such use is in the best interest of Frederick County Public Schools, and the contract is based on competitive principles.

The Superintendent shall designate a member of the administrative staff and authorize service as a liaison for the purposes of participating in cooperative procurement agreements with other public bodies.

The School Board may purchase goods and services from the state contracts maintained by the Virginia Division of Purchases and Supplies whenever the School Board deems it in its best interests to do so. Goods and services purchased through a state contract will be deemed to have met the competitive requirements set forth in this policy, and therefore will not require additional competition. The prices of items and services available through state contract shall be researched to ensure that a fair and reasonable price is obtained.

The school board authorizes the Superintendent to make available to private schools within the division, the opportunity to purchase textbooks and other materials or supplies from procurement contracts held by the school division. Such contracts must contain explicit consent by the vendor for private school purchases. Private schools shall be fully responsible for ordering, purchasing, and receiving textbooks, materials, or supplies directly from the contractor. The school board shall be immune from any civil liability as a result of a private school purchasing from school board contracts, as provided for under Virginia law.

7. Pre-qualification of Bidders

It is sometimes necessary to pre-qualify products or suppliers and only solicit those who have been pre-qualified. In such cases, a list shall be maintained of specific products or contractors which have been evaluated and determined to be acceptable in meeting predetermined minimum acceptable levels of quality or performance (Code of Virginia, § 2.2-4317). This qualification is performed in advance of any particular purchase program. By having a prequalification procedure, the time in the purchase cycle can be reduced. The qualification requirements must be established and potential contractors advised by letter and/or public posting sufficiently in advance of the anticipated procurement to allow for evaluation and qualification of potential contractors and/or products. A contractor whose product or service has been determined not qualified shall be advised in writing. Solicitations are only sent to those contractors determined to be qualified.

A. The Superintendent is authorized to pre-qualify bidders prior to any solicitation of bids, whether for goods, services, insurance, or construction, by requiring prospective bidders to submit such information as the Superintendent shall deem appropriate, including samples, financial reports, and references; provided, however, that opportunity to pre-qualify shall be given to any prospective bidder who has not been suspended or debarred under this policy.

B. The Superintendent may refuse to pre-qualify any prospective contractor, provided that written reasons for refusing to pre-qualify are made a part of the record in each case. The decision of the Superintendent shall be final.

C. In considering any request for pre-qualification, the Superintendent shall determine whether there is reason to believe that the bidder possesses the management, financial soundness, and history of performance which indicate apparent ability to complete successfully the plans and specifications of the invitations for bid. The Superintendent may employ standard forms designed to elicit necessary information, or may design other forms for that purpose.

D. Pre-qualification of a bidder shall not constitute a conclusive determination that the bidder is responsible, and such bidder may be rejected as non-responsible on the basis of subsequently discovered information.

E. Failure of a bidder to pre-qualify with respect to a given procurement shall not bar the bidder from seeking pre-qualification as to future procurements or from bidding on procurements which do not require pre-qualifications.

8. Pre-Bid Conferences

For complex equipment, supplies, or repair, pre-bid conferen­ces with prospective bidders are desirable after draft specifications have been prepared. Such conferences help to detect unclear provisions and tend to widen competition by removing unnecessarily restrictive language. Conferences on purchasing bids will be called by the Superintendent, or designee. 

9. Negotiation with the Lowest Bidder

A. Unless all bids are cancelled or rejected, FCPS reserves the right granted by § 2.2-4318 of the Code of Virginia to negotiate with the lowest responsive, responsible bidder to obtain a contract price within the funds available whenever such a low bid exceeds available funds budgeted for this requirement prior to the issuance of the IFB. Negotiation with the low bidder may include both modifications of the bid price and the scope of work. The Superintendent or designee shall initiate such negotiations with the lowest responsive and responsible bidder. The following steps shall be followed in cases where the lowest bid exceeds available funds:

i. The Superintendent or designee shall require a written determination that the bid from lowest responsive, responsible bidder exceeds available funds. This determination shall be in writing to the Superintendent or designee for

confirmation and approval. The using school or department shall provide the Superintendent or designee with suggested measures to bring the proposed purchase within budget through negotiations with the lowest responsive, responsible bidder, including reductions in scope, changes in quality, value engineering, changes in terms and conditions, or changes in schedule.

ii. The Superintendent or designee shall advise the lowest responsive, responsible bidder, in writing, that the proposed purchase exceeds available funds. He/she shall further invite proposed measures, such as a reduction in scope, change in quality, value engineering, changes in terms or conditions, or changes in schedule for the proposed purchase, and invite the lowest responsive, responsible bidder to amend its bid based upon the proposed measures to bring the purchase within available funds.

iii. Informal discussions between FCPS and the lowest responsive, responsible bidder, either in person, by e-mail, by telephone, or by other means, may be used to attempt to obtain a contract within available funds.

iv. Following any successful negotiations, the lowest responsive, responsible bidder shall submit a proposed addendum to its bid, which addendum shall include the specific changes in the proposed purchase, the reduction in price, and the new contract value. The addendum shall be reviewed by the Executive Director of Finance for acceptability.

v. If an addendum is acceptable to FCPS, then FCPS may award a contract within funds available to the lowest responsive, responsible bidder based upon the amended bid proposal.

vi. If FCPS and the lowest responsive, responsible bidder cannot negotiate a contract within available funds, all bids shall be rejected and the project shall be re-bid before a contract can be awarded.

vii. These procedures shall be deemed to be incorporated automatically in all invitations to bid and requests for proposal issued by FCPS. However, the Purchasing Supervisor should ensure this section is set out in all invitations to bid and requests for proposal.

10. Required Contract Provisions

The following contract provisions shall be incorporated into each applicable contract that is established by Frederick County Public Schools. Additionally, Contractors shall include the following provisions in all contracts with its subcontractors who will provide services to FCPS, if any, so that such provisions are binding on all such subcontractors of the Contractor.

A. Sex Offender Certification

As a condition of awarding a contract for the provision of services that require the contractor or his employees to have direct contact with students on school property during regular school hours or during school-sponsored activities, the school board shall require the contractor to provide certification that all persons who will provide such services have not been convicted of a felony or any offense involving the sexual molestation or physical or sexual abuse or rape of a child.

Any person making a materially false statement regarding any such offense shall be guilty of a Class 1 misdemeanor and, upon conviction, the fact of such conviction shall be grounds for the revocation of the contract to provide such services and, when relevant, the revocation of any license required to provide such services. The School Board shall not be liable for materially false statements regarding the certifications required by this subsection.

This certification shall not apply to a contractor or his employees providing services in an emergency or exceptional situation, such as when student health or safety is endangered or when repairs are needed on an urgent basis to ensure that school facilities are safe and habitable, when it is reasonably anticipated that the contractor or his employees will have no direct contact with students.

If any employee of a Contractor who provides services in the presence of students is arrested for, charged with, or convicted of any such offense, or becomes the subject of a child abuse investigation, the Contractor shall notify the Superintendent of the arrest, charge, conviction or investigation within forty-eight (48) hours after the Contractor is made aware of the arrest, charge, conviction or investigation. The School Board reserves the right to exclude such employee from positions that may involve contact between such employee and students or school employees, or to exclude such individual from school property entirely.

B. Illegal Alien Certification

Contractor shall certify that it does not and shall not, during the performance of a FCPS contract for goods and services, knowingly employ an unauthorized alien as a defined in the Federal Immigration Reform and Control Act of 1986.

The School Board shall include the following provisions in every contract of more than $10,000:

C. Discrimination by Contractor Prohibited

i. The contractor will not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, disability, or other basis prohibited by state law relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary to the normal operation of the contractor. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause.

ii. The contractor, in all solicitations or advertisements for employees placed by or on behalf of the contractor, will state that such contractor is an equal opportunity employer.

iii. Notices, advertisements and solicitations placed in accordance with federal law, rule or regulation shall be deemed sufficient for the purpose of meeting the requirements of this section.

D. Drug-free Workplace to be Maintained by Contractor

i. During the performance of this contract, the contractor agrees to (i) provide a drug-free workplace for the contractor’s employees; (ii) post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in the contractor’s workplace and specifying the actions that will be taken against employees for violations of such prohibition; (iii) state in all solicitations or advertisement for employees placed by or on behalf of the contractor that the contractor maintains a drug-free workplace; and (iv) include the provisions of the foregoing clauses in every subcontract or purchase order of over $10,000, so that the provisions will be binding upon each subcontractor or vendor.

For the purposes of this section, “drug-free workplace” means a site for the performance of work done in connection with a specific contract awarded to a contractor in accordance with this policy, the employees of whom are prohibited from engaging in the unlawful manufacture, sale, distribution, dispensation, possession or use of any controlled substance or marijuana during the performance of a contract.

The contractor shall include the provisions of the foregoing sections C and D in every subcontract or purchase order of over $10,000, so that the provisions will be binding upon each subcontractor or vendor.

11. Contract Modifications

A. FCPS contracts may include provisions for modification of the contract during performance, but no fixed-price contract may be increased by more than twenty-five percent of the amount of the contract or $50,000, whichever is greater, without the advance written approval of the School Board. In no event may the amount of any contract, without adequate consideration, be increased for any purpose, including, but not limited to, relief of an offeror from the consequences of an error in its bid or offer.

B. FCPS may extend the term of an existing contract for services to allow completion of any work undertaken but not completed during the original term of the contract.

C. Nothing in this section shall prevent FCPS from placing greater restrictions on contract modifications.

12. Multi-Term Contracts

A. Unless otherwise provided by law, a contract for goods, services, or insurance may be entered into for any period of time deemed to be in the best interests of the School Board provided the term of the contract and conditions of renewal or extension, if any, are included in the solicitation and funds are available or have been approved by the Board of Supervisors for the first fiscal period at the time of contracting. Payment and performance obligations for succeeding fiscal periods shall be subject to the availability and appropriation of funds therefore.

B. When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract shall be canceled.

13. Bid Bonds

A. Except in cases of emergency, all bids or proposals for construction contracts in excess of $500,000 shall be accompanied by a bid bond from a surety company selected by the bidder which is legally authorized to do business in Virginia, as a guarantee that if the contract is awarded to such bidder, that bidder will enter into the contract for the work mentioned in the bid. The amount of the bid bond shall not exceed five percent of the amount bid.

B. For construction contracts in excess of $100,000 but less than $500,000, where the bid bond requirements are waived, prospective contractors shall be prequalified for each individual project in accordance with section seven of this policy and Code of Virginia, § 2.2-4317.

C. At the discretion of the Superintendent, other bidders may be required to submit with their bid a bid bond, or a certified check, in an amount to be determined by the Superintendent and specified in the invitation to bid, which shall be forfeited to the School Board as liquidated damages upon the bidder's failure to execute a contract awarded to him/her or upon the bidder's failure to furnish any required performance or payment bonds in connection with a contract awarded to him/her.

D. No forfeiture under a bid bond shall exceed the lesser of (i) the difference between the bid for which the bond was written and the next low bid, or (ii) the face amount of the bid bond.

E. Nothing in this section shall preclude FCPS from requiring bid bonds to accompany bids or proposals for construction contracts anticipated to be less than $500,000.

14. Payment and Performance Bonds

A. Upon the award of any public construction contract exceeding $100,000 awarded to any prime contractor, such contractor shall furnish to the School Board the following bonds:

(1) A performance bond in the sum of the contract amount conditioned upon the faithful performance of the contract in strict conformity with the plans, specifications and conditions of the contract.

(2) A payment bond in the sum of the contract amount. Such bond shall be for the protection of claimants who have and fulfill contracts to supply labor or materials to the prime contractor to whom the contract was awarded or to any subcontractors, in the prosecution of the work provided for in such contract, and shall be conditioned upon the prompt payment for all such material furnished or labor supplied or performed in the prosecution of the work.

B. "Labor or materials" shall include public utility services and reasonable rentals of equipment, but only for periods when the equipment rented is actually used at the site.

C. Each such bond shall be executed by one or more surety companies selected by the contractor which are legally authorized to do business in Virginia.

D. Bonds shall be payable to the School Board.

E. Nothing in this section shall preclude the Superintendent from requiring payment or performance bonds for construction contracts below $100,000.

15. Tie Bids

A. In the case of a tie bid, preference shall be given to goods, services and construction produced in Virginia or provided by Virginia persons, firms or corporations, if such a choice is available; otherwise the tie shall be decided by lot.

B. Whenever any bidder is a resident of any other state and such state under its laws allows a resident contractor of that state a preference, a like preference may be allowed to the lowest responsible bidder who is a resident of Virginia. If all bids received are for the same total amount or unit price, quality and service being equal, the contract shall be awarded to a local bidder.

16. Compliance with Conditions on Federal Grants or Contracts

Where a procurement transaction involves the expenditure of federal assistance or contract funds, the receipt of which is conditioned upon compliance with mandatory requirements of federal laws or regulations not in conformance with the provisions of this policy and the applicable provisions of the Virginia Public Procurement Act (the "Act"), the School Board

may comply with such federal requirements upon a determination that acceptance of the grant or contract funds under the conditions is in the public interest. Such determination shall state the applicable provisions of the policy and Act in conflict with the conditions of the grant or contract.

17. Debarment

A. After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the board or its designee is authorized to debar a person for cause from consideration for award of contracts. The debarment shall not be for a period of more than three years. The board or its designee is authorized to suspend a person from consideration for award of contracts if there is probable cause to believe that the person has engaged in any activity which might lead to debarment. The suspension shall not be for a period exceeding six months. The causes of debarment include:

i. Conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;

ii. Conviction under state and federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects respon­sibility as a board contractor;

iii. Conviction under state or federal antitrust statutes arising out of the submission of bids or proposals;

iv. Violation of contract provisions, as set forth below, of a character which is regarded by the board or its designee to be so serious as to justify debarment action;

v. Deliberate failure without good cause to perform in accordance with the specifications or within the time limit provided for in the contract;

vi. A recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered to be a basis for debarment;

vii. Any other cause the School Board or its designee determines to be so serious and compelling as to affect responsibility as a School Board contractor including debarment by another governmental entity for any cause in this policy; and for violation of the ethical standards set forth in this policy.

B. The School Board or its designee shall issue written decisions to debar or suspend. The decision shall state the reasons for the action taken.

18. Miscellaneous Provisions

Pursuant to Code of Virginia, § 2.2-4300, the following provisions of the Virginia Public Procurement Act shall apply to purchases by and on behalf of the School Board: §§ 2.2‑4305, 2.2-4315, 2.2-4311, 2.2-4330, 2.2-4333 through 2.2‑4338, and 2.2-4367 through 2.2-4377.

19. Severability

Should any provision of this policy be declared invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity or constitutionality of this policy as a whole or any part thereof other than the part so declared invalid or unconstitutional.

20. Preference – Price Matching 

When the lowest bidder is a resident of any other state and such state allows a resident contractor a price-matching preference, then a like preference shall be allowed for bidders who are residents of Virginia.




Legal Reference:
Code of Virginia, Virginia Public Procurement Act, Title 2.2, Chapter 43.
Virginia code Ann. § 11-40 (1989 Repl. Vol.).
Code of Virginia, § 22.1-241, Contracts with Publishers





Adopted: February 6, 1990
Amended: September 3, 1991
Amended: November 21, 1994
Amended: June 19, 1995
Amended: November 14, 2005
Amended: November 8, 2006
Amended: June 19, 2007
Amended: June 2, 2009
Amended: October 18, 2011
Amended: August 18, 2015
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