§ 4-5.08 DELEGATION OF AUTHORITY

a. The designation in this act of an officer or agency head to perform a specified duty shall not be deemed to supersede the authority of the Governor to delegate powers under the provisions of § 2.2-1304, Code of Virginia.

b.1.a) The provisions of § 4-5.08 b of Chapter 912 of the Acts of Assembly of 1996, pertaining to pilot programs for capital outlay projects in selected institutions of higher education, including Old Dominion University, are hereby continued. .

b) Pursuant to those provisions, Christopher Newport University, the College of William and Mary, Old Dominion University, Radford University, the University of Virginia, and Virginia Polytechnic Institute and State University are authorized to oversee the capital process for nongeneral fund capital outlay projects included in the pilot program.

c) The Department of General Services, in conjunction with the Secretary of Administration, will conduct evaluations of all institutions participating in the nongeneral fund pilot program by July 1, 2003.

d) If the Department of General Services finds an institution not to be in compliance with the policies and procedures currently in effect for the nongeneral fund capital outlay pilot programs, the Secretary of Administration, the institution, and the Auditor of Public Accounts shall follow the process outlined in subparagraphs h.2.c. through h.2.e.

e) Pursuant to § 4-5.08 b.1.a) of this act, institutions of higher education participating in the nongeneral fund capital outlay pilot program are hereby delegated the authority of the Department of General Services to approve the use and administration of design-build or construction management as appropriate contract methods for nongeneral fund capital outlay projects.

f) Christopher Newport University, the College of William and Mary, Old Dominion University, Radford University, the University of Virginia, and Virginia Polytechnic Institute and State University are hereby delegated the authority of the Department of General Services to approve the use of design-build or construction management as appropriate contract methods for general fund capital outlay projects.

2. Notwithstanding the provisions of § 2.2-4309, Code of Virginia, no approval of the Governor shall be required for contract modifications as specified therein for the pilot programs of the selected institutions of higher education referenced in paragraph 1, provided that contract modifications of such projects, including construction and architectural and engineering change orders, shall be approved by the Boards of Visitors, which may further delegate this authority to the President, a Vice President, or the individual responsible for facilities design and construction matters at the selected institution of higher education to act on its behalf.

3. The selected institutions are hereby granted a waiver from the provisions of § 2.2-4301, Competitive Negotiation, subdivision 3a, Code of Virginia, regarding the not to exceed amount of $100,000 for a single project, the not to exceed sum of $500,000 for all projects performed, and the option to renew for two additional one-year terms.

c.1. The provisions of § 4-5.08 c of Chapter 912 of the Acts of Assembly of 1996 pertaining to pilot programs for real property leases in selected institutions of higher education, including Old Dominion University, are hereby continued and expanded to include approval of income leases.

2. The University of Virginia and Virginia Polytechnic Institute and State University shall be delegated administrative authority to enter into capital leases on a pilot basis, provided that such capital leases have been specifically authorized by the Governor or the General Assembly pursuant to the Appropriation Act and have been reviewed and approved by the Treasury Board.

d. Notwithstanding any contrary provision of law or this act, delegations of authority in this act to the Governor shall apply only to agencies and personnel within the Executive Department, unless specifically stated otherwise.

e. Virginia Commonwealth University is hereby delegated the authority of the Department of General Services and the Governor provided in §§ 2.2-1149 and 23-4.1, Code of Virginia, to enter into leases with the Virginia Commonwealth University Health System Authority for space within the facilities which are the subject of the Master Lease between the University and the Authority dated June 10, 1997. This delegation of authority is limited to operating leases and excludes capital leases as defined by Generally Accepted Accounting Principles (GAAP).

f. The College of William and Mary, Radford University, the University of Virginia, and Virginia Polytechnic Institute and State University are authorized to enter into a pilot program for selected capital outlay projects through which each named institution shall be delegated all post-appropriation review, approval, administrative, policy and procedural functions previously performed by the Departments of Planning and Budget and General Services for which are supported in part or in whole from the state general fund or state-supported debt. Delegation of authority under this pilot project is subject to the following stipulations and conditions:

1. The following capital projects shall be eligible for the pilot program:

2. The Board of Visitors of each institution shall develop policies, procedures and guidelines for carrying out these capital projects, subject to the review and approval of the Secretaries of Finance and Administration. The institutions shall submit any proposed policies, procedures and guidelines to the Secretaries of Finance and Administration no later than August 1, 2003. The Secretaries of Finance and Administration shall review and provide comments to the institutions on the proposed guidelines and provide their final approval no later than October 1, 2003.

3. The cost of each eligible capital project shall not exceed the appropriation or debt authorization provided in the Appropriation Act. The institution shall be responsible for covering any cost overruns in the project through available nongeneral funds, excluding revenue from tuition and mandatory educational and general fees. Any supplemental appropriation shall be approved by the Governor and the General Assembly and is subject to § 4-4.01.q. of this act.

4. Projects included in the pilot program shall be insured separately by the institution rather than through the state's risk management liability program.

5. For projects funded through state-supported debt or other obligations, the institutions of higher education shall comply with (i) all financial and administrative requirements, as identified by the Secretary of Finance or his designee, to facilitate compliance with all legal requirements set out by the General Assembly (including those contained in Chapters 814, 827, 839, 854, 855, 859, 884, 887, 888 and 899 of the 2002 Acts of Assembly) and (ii) all undertakings and covenants made by the institution associated with such debt or other obligations.

6. The institution shall report to the Department of General Services the status of any capital project at the initiation of the project and prior to the commencement of construction.

7. Notwithstanding the provisions of § 2.2-4309, Code of Virginia, no approval of the Governor shall be required for contract modifications as specified therein for the pilot programs of the selected institutions of higher education referenced in subparagraph 3, provided that contract modifications of such projects, including construction and architectural and engineering change orders, do not require a supplemental appropriation from the general fund or change the scope of the project.

8. Pursuant to § 4-4.01.k. of this act, the Department of General Services must approve any increase or decrease in scope greater than five percent of the gross square footage of the building and any corresponding cost or savings associated with the requested scope change.

9. The Department of General Services, acting through the Division of Engineering and Buildings, shall continue to function as the State Building Official pursuant to § 36-98.1, Code of Virginia, for all capital outlay projects, excluding those at the University of Virginia Medical Center pursuant to § 23-77.4 B1, Code of Virginia.

g. The University of Virginia, with approval of its Board of Visitors, is hereby delegated authority on a pilot basis to acquire easements on property not owned by the university without prior approval by the Department of General Services.

h.1a). Institutions of higher education participating in any decentralization pilot program identified in this act shall develop, to the satisfaction of the responsible Cabinet Secretary, a memorandum of understanding that shall include, but not be limited to, a description of the duty or authority being delegated, policies and procedures with which the institution must comply, and criteria upon which the institution will be evaluated periodically by the responsible Cabinet Secretary. The participating institution of higher education shall submit the memorandum of understanding to the responsible Cabinet Secretary by September 1, 2003. The Cabinet Secretary and participating institutions shall have the necessary memoranda of understanding signed and in effect no later than October 15, 2003.

b) If a memorandum of understanding is already in effect for an existing pilot program, the participating institutions of higher education shall review the memorandum and recommend to the responsible Cabinet Secretary any changes needed to ensure that it contains all of the stipulations specified herein.

2.a) The responsible Cabinet Secretary shall communicate all existing decentralization memoranda of understanding to the Auditor of Public Accounts by November 1, 2003. Any subsequent memoranda of understanding or addenda to existing memoranda shall be communicated to the Auditor of Public Accounts within 10 business days after the memoranda have been signed.

b) Based on the memorandum of understanding, the responsible Cabinet Secretary, or his designee, shall conduct an evaluation of each institution participating in a pilot program at least once every two years. Evaluations of the nongeneral fund capital outlay pilot programs shall be conducted pursuant to paragraph b 1 of this section.

c) The Secretary shall report all evaluation findings and recommendations to the Governor and Chairmen of Senate Finance and House Appropriations Committees.

d) To the extent an institution participating in a pilot program is not performing to the satisfaction of the responsible Cabinet Secretary, the institution shall have 90 calendar days from receipt of the Secretary’s written evaluation in which to develop a remediation plan. The institution shall submit the plan to the appropriate Cabinet Secretary and the Auditor of Public Accounts.

e) The Auditor of Public Accounts shall conduct a functional audit of the delegated program authority within 180 calendar days of receiving the institution’s plan. Based on his findings, the Auditor of Public Accounts shall recommend to the Chairmen of the Senate Finance and House Appropriations Committees whether the institution shall continue in the pilot program.

3. To the extent institutions are performing satisfactorily under the pilot programs, it is the intent of the General Assembly that they be removed from the pilot program and be delegated authority in the Code of Virginia to administer the specified duty or function on an on-going basis.

4. If during any independent audit conducted by the Auditor of Public Accounts, the audit discloses that an institution is not performing within the terms of the memoranda of understanding or their addenda, the Auditor shall report this information to the Governor, the responsible Cabinet Secretary, and the Chairmen of the Senate Finance and House Appropriations Committees. The responsible Cabinet Secretary shall consider this an evaluation in accordance with paragraph h.2.b. and act accordingly.

5. The responsible Cabinet Secretary shall establish eligibility criteria for institutions currently not participating in each of the pilot programs and report those criteria to the Chairmen of the Senate Finance and House Appropriations Committees by October 1, 2003. Institutions wishing to participate in a pilot program for the first time shall submit a letter of interest to the appropriate Cabinet Secretary. Within 90 calendar days of the receipt of the institution’s request to participate, the responsible Cabinet Secretary shall determine whether the institution meets the eligibility criteria and, if appropriate, establish a pilot program at the institution. The Cabinet Secretary shall report to the Governor and Chairmen of the Senate Finance and House Appropriation Committees by December 1 of each year all institutions that have applied for inclusion in a pilot program and whether the institution has been granted authority to participate in the pilot program.