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. Section 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. Section 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 noted that not every contract loosely "authorized under" the PPTA is actually awarded under it. Many transportation contracts are arguably PPTA-authorized but proceed under the Procurement Act for their actual procurement. In those cases, the Procurement Act, including § 2.2-4321.2, controls.

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.

Virginia procurement and public-private partnership law has been amended periodically since 2016. The cross-reference structure that drove this opinion (PPTA exemption in § 33.2-1819, PLA rules in § 2.2-4321.2) should be re-checked against current statutory text. PLA policy is also sensitive to federal preemption developments and to executive orders that have changed at the federal level over time.

Background and statutory framework

The Virginia Public Procurement Act (§§ 2.2-4300 to 2.2-4377) is the general statutory framework for state and local public procurement in Virginia. Section 2.2-4321.2, enacted in 2012 (2012 Va. Acts chs. 685, 732), 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 (§§ 33.2-1800 to 33.2-1824) creates a separate procurement track for transportation infrastructure delivered through public-private partnerships. Section 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 handled an inferred conflict. Section 2.2-4321.2(F)(1) carves out a defined class of public-private agreements from the PLA statute. The requester asked why that exemption is necessary if § 33.2-1819 already exempts PPTA contracts. The AG applied Boynton v. Kilgore, 271 Va. 220, 229 (2006): when two statutes appear to conflict, courts read them in harmony to give force to each. Reading them in pari materia, the AG concluded that not every public-private agreement is awarded under the PPTA; § 2.2-4321.2(F)(1) reaches the broader universe of qualifying public-private agreements regardless of the awarding vehicle, while § 33.2-1819 exempts the narrower set of all PPTA-awarded contracts. The two exemptions overlap on PPTA contracts but each performs distinct work.

The opinion specifically flagged that "authorized under the PPTA" is sometimes used loosely. Many transportation contracts are arguably PPTA-authorized but actually awarded under the Procurement Act. In those cases, the Procurement Act governs, including § 2.2-4321.2. The opinion treats "authorized under" as functionally equivalent to "awarded under" the PPTA, which is the operative trigger for the § 33.2-1819 exemption.

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. Section 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: No. Many transportation contracts are arguably PPTA-authorized but are actually awarded under the Procurement Act. The PPTA exemption only applies when the contract is actually awarded under the PPTA.

Q: Does the federal National Labor Relations Act preempt state PLA rules?
A: The opinion does not address federal preemption. PLA litigation has historically raised NLRA-preemption questions in other states; that is a separate analysis from this Virginia-law opinion.

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. §§ 2.2-4300 to 2.2-4377 (Virginia Public Procurement Act)
• Va. Code Ann. § 2.2-4321.2 (project labor agreements)
• Va. Code Ann. §§ 33.2-1800 to 33.2-1824 (Public-Private Transportation Act of 1995)
• 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)
• 2012 Va. Acts chs. 685, 732 (enacting § 2.2-4321.2)

Cases:

• Boynton v. Kilgore, 271 Va. 220 (2006)

Prior AG opinions:

• 2003 Op. Va. Att'y Gen. 18
• 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).]