Virginians for Fairness Notifies Arlington County of Legal Violations in Gateway Park Procurement
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August 13, 2025
VIA EMAIL: sgezachew@arlingtonva.us
Sy Gezachew, VCCO, VCO
Procurement Officer
Office of the Purchasing Agent
Arlington County, Virginia
Ellen M. Bozman Government Center
2100 Clarendon Boulevard
Arlington, VA 22201
RE: Request for Qualifications No. N1210 – Gateway Park Renovation CMAR Solicitation in Violation of Virginia Law
Mr. Gezachew,
We are a coalition of Virginia’s major construction industry associations. Collectively, our organizations represent the overwhelming majority of firms working on public infrastructure in the Commonwealth. We are writing to express our serious concerns with the County’s recent Request for Qualifications (“RFQ”) No. N1210 for the Gateway Park Renovation project.[1] First, the RFQ includes a requirement for a Project Labor Agreement (“PLA”), which puts the procurement in direct violation of Virginia Public Procurement Act as discussed below. Second, the RFQ appears to also violate the laws governing public procurement and the use of Construction Management at Risk (“CMAR”) as a procurement method by a locality, as well as Arlington’s own Purchasing Resolution. We ask that the County cancel and reissue this RFQ in a manner that complies with Virginia law to avoid lengthy challenges and delays in this procurement.
The Virginia Public Procurement Act requires, “[T]hat all qualified vendors have access to public business and that no offeror be arbitrarily or capriciously excluded…”[2] This legal guarantee of fairness and open competition on public procurements is irreconcilable with Section I.6. of the RFQ, which states that, “By submitting a response to the [RFQ], the Applicant certifies that it will negotiate a PLA, review the documents associated with the PLA and implement the PLA as well as comply with this provision and will ensure that its subcontractors, if any, also comply with the provision of a negotiated PLA.” As you may know, PLAs by their very nature, discriminate against non-union contractors and Virginia workers that do not wish to join a union. As such, PLA mandates, such as the one in RFQ No. N1210, effectively bar 94.3% of construction workers from public projects.[3]
That PLAs restrict bid competition by arbitrarily excluding non-union contractors is beyond dispute.[4] Few Virginia contractors will bid on projects that require them to sign a PLA as a condition of entering into a contract. This fact was recently illustrated by the Loudoun County Government’s survey of construction contractors that had previously worked on county projects. The survey found that over half of these contractors reported that they would not submit bids for county projects with a PLA mandate.[5] Incidentally, two recent studies by the RAND Center on Housing & Homelessness found that this lack of full and open competition increases construction costs by 21%.[6] To be sure, PLAs are cynically designed to limit competition on public projects by acting as a de facto exclusion of most Virgina construction firms. This cannot be reconciled with the Virginia Public Procurement Act.
In addition, it appears that the County has selected the CMAR procurement method for this project without demonstrating and including in the RFQ the information necessary to justify this decision. Virginia Code §§ 2.2-4378, 2.2-4379 and 2.2-4382 govern the use of CMAR and Design-Build procurement methods by localities. Arlington County incorporates these statutory requirements in its Arlington Purchasing Resolution – July 2025, 4-102(3). Importantly these requirements flatly state that “[p]rior construction management or design-build experience shall not be considered as a prerequisite or factor considered for prequalification of a contract.”[7]
The RFQ plainly violates this statutory requirement when it makes prior construction management experience a requirement for submission of a statement of qualifications:
6. PREQUALIFICATION APPLICATION SUBMITTAL ELEMANTS:
…
III. PROJECT SPECIFIC QUALIFICATIONS:
…
A. PROJECT EXPERIENCE OF THE COMPANY:
Applicants shall submit descriptions for four (4) distinct projects that they have completed as the general contractor within the past ten (10) years from the date of issuance of this RFQ. Each project must meet the following baseline criteria:
…
iv. CMAR Delivery Method: At least one (1) of the projects must have been delivered through the construction management at risk delivery method and had a construction value of $10 million or greater.[8]
In closing, both the PLA mandate and the requirement of prior construction management experience as a prerequisite for the prequalification of bidders or offerors on this project will, without question, arbitrarily and capriciously exclude otherwise qualified offerors from access to public business in violation of Virginia’s procurement law.[9] These violations require immediate action and correction to maintain requirements for open competition in procurements, and we ask that the County take prompt action to cure them.
Thank you for your attention to this matter. We remain available for discussion of these concerns at your earliest convenience.
Sincerely,
THE VIRGINIA COALITION FOR FAIR CONTRACTING & EMPLOYEE PROTECTION
Gordon Dixon
Virginia Transportation Construction Alliance
Patrick Dean
Associated Builders and Contractors - Virginia Chapter
Brandon Robinson
Associated General Contractors of Virginia
[1] Coalition members include Associated Builders & Contractors, Virginia Chapter, Associated General Contractors of Virginia, Virginia Transportation Construction Alliance, Heavy Construction Contractors Association, Virginia Asphalt Association, and the Virginia DBE Transportation Association.
[2] Virginia Public Procurement Act, § 2.2-4300. [Emphasis Added] Note: While we appreciate that the County is relying on § 2.2-4321.2 of the Act authorizing PLAs, this section is fundamentally at odds with the § 2.2-4300. Recently, courts have attempted to resolve this conflict and have found that PLAs violate the open competition clauses.
[3] U.S. Bureau of Labor Statistics, Current Population Survey, 2024. Data compiled at http://www.UnionStats.com.
[4] The County has offered no analysis, review, or justification for the PLA requirement making it the very definition of an arbitrary and capricious exclusion of highly qualified contractors.
[5] See https://virginians4fairness.org/blog/not-interested
[6] Ward, Jason M., “The Effects of Project Labor Agreements on Affordable Housing: Evidence from Proposition HHH,” RAND Corporation, 2021 and “Project Labor Agreements and Affordable Housing Production Costs in Los Angeles,” RAND Corporation, 2024.
[7] Va. Code § 2.2-4382.E.4.
[8] RFQ, pp. 10-11. The RFQ then includes as Exhibit E – Qualifying Experience Chart the same requirement for prior CMAR experience as a condition for submittal by an applicant. RFQ, p. 24.
[9] Va. Code § 2.2-4300