Does Virginia's project-labor-agreement statute apply to highway and transportation contracts awarded under the Public-Private Transportation Act?

Plain-English summary

Delegate Jennifer Boysko asked whether § 2.2-4321.2 of the Code of Virginia, a 2012 addition to the Virginia Public Procurement Act, governs contracts authorized under the state's Public-Private Transportation Act of 1995 (PPTA). Section 2.2-4321.2 sets three rules for project labor agreements on public-works contracts: a state agency cannot require a PLA, cannot prohibit one, and cannot discriminate against bidders based on PLA status. Those rules ensure PLAs remain voluntary on public works.

Attorney General Mark R. Herring concluded the PLA statute does not reach PPTA contracts. § 33.2-1819 of the PPTA says the Public Procurement Act "shall not apply to" the PPTA, with limited exceptions, and § 2.2-4321.2 is not on the list of preserved provisions. So when a contract is actually awarded under the PPTA, the PLA limits in § 2.2-4321.2 do not bind the awarding entity.

The AG also addressed an apparent tension the requester had flagged: § 2.2-4321.2(F)(1) separately exempts certain public-private agreements from the PLA statute. If PPTA contracts are already exempt under § 33.2-1819, why is the (F)(1) exemption needed? The AG resolved the tension by reading the statutes in pari materia. § 33.2-1819 exempts all PPTA contracts. Section 2.2-4321.2(F)(1) is broader at the front end, capturing all qualifying public-private agreements even when they're not awarded under the PPTA. The two exemptions overlap on PPTA contracts but each does independent work.

The opinion explains that not all public-private agreements fall under the PPTA. Agreements that meet § 2.2-4321.2(F)(1)'s conditions are exempt from that section even when they are not awarded under the PPTA.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Check the current versions of § 33.2-1819 and § 2.2-4321.2 before applying the opinion to a present contract.

Background and statutory framework

The Virginia Public Procurement Act is the general statutory framework for state and local public procurement in Virginia. Section 2.2-4321.2 restricts how state agencies treat project labor agreements on public-works contracts. A "project labor agreement" is a pre-hire collective bargaining agreement with one or more labor organizations covering all employees on a specific construction project. The 2012 statute makes PLAs voluntary: a state agency cannot require one, cannot prohibit one, and cannot discriminate against bidders based on PLA status. These rules also apply when the agency is providing grants, financial assistance, or entering a cooperative agreement.

The Public-Private Transportation Act of 1995 creates a separate procurement track for transportation infrastructure delivered through public-private partnerships. § 33.2-1819 says that the Procurement Act "shall not apply to" the PPTA, with limited carve-outs preserving competitive-procurement principles via PPTA guidelines.

The AG's first move was textual. Because § 33.2-1819 broadly exempts the PPTA from the Procurement Act and does not list § 2.2-4321.2 among the preserved provisions, the PLA rules don't apply to PPTA-awarded contracts.

The second move addressed the two exemptions. Section 2.2-4321.2(F)(1) exempts a defined class of public-private agreements from the PLA statute. The AG explained that not every public-private agreement is awarded under the PPTA: qualifying agreements under (F)(1) are exempt even when awarded outside the PPTA, while § 33.2-1819 exempts contracts awarded under the PPTA.

The opinion concludes that contracts awarded under the PPTA are exempt from § 2.2-4321.2. It does not discuss a contract that could have used the PPTA but was procured under a different statute.

The opinion drew an analogy to 2012 Op. Va. Att'y Gen. 9, 11, which held that § 2.2-4321.2 did not apply to the Metropolitan Washington Airports Authority because MWAA was exempt from the Procurement Act under § 5.1-174.

Common questions

Q: Do PPTA contracts have to follow the rules in Virginia's PLA statute?
A: The AG concluded no. § 33.2-1819 exempts PPTA contracts from the Procurement Act, including § 2.2-4321.2.

Q: What does § 2.2-4321.2 actually require for ordinary public-works contracts?
A: It makes project labor agreements voluntary on public-works contracts. A state agency may not require a PLA, may not prohibit one, and may not discriminate against bidders based on PLA status.

Q: If the PPTA already exempts contracts from the Procurement Act, why does § 2.2-4321.2 have its own exemption in (F)(1)?
A: The two exemptions reach different sets. PPTA exemption covers all PPTA-awarded contracts. The (F)(1) exemption covers a broader class of qualifying public-private agreements regardless of awarding vehicle. They overlap on PPTA contracts but each does separate work.

Q: Is every transportation contract a PPTA contract?
A: The opinion does not classify transportation contracts generally. It concludes that contracts awarded under the PPTA are exempt from § 2.2-4321.2 and notes that not all public-private agreements fall under the PPTA.

Q: What's the practical takeaway for a contractor bidding on a PPTA project?
A: At the time of the opinion, a PPTA awarding entity was not bound by the PLA-neutrality rules in § 2.2-4321.2. Whether a particular PPTA solicitation imposes or forbids a PLA is a project-by-project question, not a Procurement Act question.

Citations and references

Virginia statutes:

• Va. Code Ann. § 2.2-4321.2 (project labor agreements)
• Va. Code Ann. § 33.2-1819 (PPTA exemption from Procurement Act)
• Va. Code Ann. § 5.1-174 (MWAA exemption from Procurement Act)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Prior AG opinions:

• 2012 Op. Va. Att'y Gen. 9 (MWAA)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/Boysko-issued-corrected-FNs.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

August 10, 2016

The Honorable Jennifer B. Boysko
Member, House of Delegates
730 Elden Street
Herndon, Virginia 20170

Dear Delegate Boysko:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

Section 2.2-4321.2 of the Code of Virginia governs the use of labor agreements for certain public projects. You ask whether it applies to projects authorized under Virginia's Public-Private Transportation Act of 1995 (the "PPTA").

Applicable Law and Discussion

Section 2.2-4321.2 is a provision of the Virginia Public Procurement Act (the "Procurement Act"). It governs the use of project-specific agreements with labor organizations for a defined class of public works contracts. These project-specific agreements with labor organizations are colloquially known as project labor agreements ("PLAs").

In general, the statute establishes three broad rules that apply to the use of PLAs on public works contracts. First, a state agency cannot require the use of a PLA on a public works contract. Second, a state agency cannot prohibit the use of a PLA on a public works contract. Finally, within a public works contract, discrimination is prohibited against certain individuals or entities on the basis of whether that individual or entity has signed or agreed to adhere to a PLA. These three broad rules apply both when the state agency is the actual purchasing entity and when it is simply issuing grants, providing financial assistance, or entering into a cooperative agreement. Thus, the statute ensures that the use of a PLA remains voluntary on public works contracts, and it prohibits discrimination against an individual or entity based on its PLA status.

Pursuant to § 33.2-1819 of the PPTA, the General Assembly expressly exempted the PPTA from most, but not all, provisions of the Procurement Act. For example, one exception is that the PPTA expressly requires public entities to adopt PPTA guidelines that are consistent with certain principles of competitive procurement established within the Procurement Act. However, there is nothing that excepts § 2.2-4321.2 (the PLA statute) from the general rule that the Procurement Act "shall not apply" to the PPTA. Accordingly, it is my opinion that § 2.2-4321.2 does not apply to contracts awarded under the PPTA.

You allude to an apparent tension in the law between two statutes on this subject. On the one hand, § 33.2-1819 provides that the Procurement Act "shall not apply" to the PPTA. On the other hand, § 2.2-4321.2(F)(1) exempts a defined class of public-private agreements from § 2.2-4321.2 (the PLA statute).

At first glance, when read together, these two provisions do invite the following question: why is the exemption of § 2.2-4321.2(F)(1) necessary when contracts awarded under the PPTA already are generally exempt from the provisions of the Procurement Act under § 33.2-1819? However, the statutes can be read in harmony without strain because not all public-private agreements fall under the PPTA. As stated above, all contracts awarded under the PPTA are exempt from § 2.2-4321.2 by virtue of § 33.2-1819. Also, all public-private agreements meeting the conditions of § 2.2-4321.2(F)(1) are exempt from § 2.2-4321.2, even when not awarded under the PPTA. It is well accepted that statutes relating to the same subject should not be read in isolation. Such statutes should be read in pari materia.

Conclusion

Accordingly, it is my opinion that § 2.2-4321.2 does not apply to contracts awarded under the PPTA.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[Footnote 15: See also 2012 Op. Va. Att'y Gen. 9, 11 (opining that § 2.2-4321.2 does not apply to the Metropolitan Washington Airports Authority because it is exempt from the Procurement Act under § 5.1-174 of the Code of Virginia).]