Virginia: In The Circuit Court for the City of Portsmouth

Transcription

1 Virginia: In The Circuit Court for the City of Portsmouth ) COOPER, SPONG & DAVIS, P.C. ) ) Plaintiff ) ) v. ) Case No. CL ) PORTSMOUTH REDEVELOPMENT ) AND HOUSING AUTHORITY ) ) Defendants. ) PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' PLEA IN BAR Cyrus E. Phillips IV Albo & Obion, L.L.P. Courthouse Plaza 2200 Clarendon Boulevard, Suite 1201 Arlington, Virgmia Attorney for Plaintiff, Cooper, Spong &Davis, P.C. February 8th, 2016

2 TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES IV UNCONTESTED FACTS THE PARTIES THE CHOICE OF LAW PROVISION THE PRHA LEGAL SERVICES SOLICITATION VIRGINIA PUBLIC PROCUREMENT ACT SELECTION PROCEDURES FOR PROFESSIONAL SERVICES HUD PROCUREMENT HANDBOOK NUMBER REV 2 PROCEDURES FOR PHA PROCUREMENTS OF LEGAL SERVICES THE PROTEST PRHA's DENIAL OF THE PROTEST VIRGINIA PUBLIC PROCUREMENT ACT PROCEDURES FOR LEGAL ACTIONS THE LEGAL ACTION ARGUMENT i -

3 DEFENDANTS' PLEA IN BAR THE VIRGINIA PUBLIC PROCUREMENT ACT AFFORDS PRECLUSIVE EFFECT ONLY IF OPTIONAL ADMINISTRATIVE REMEDIES ARE INVOKED THE ADMINISTRATIVE REMEDIES HERE PROVIDED Do NOT MEET STANDARDS OF THE VIRGINIA PUBLIC PROCUREMENT ACT PROOF OF SERVICE CERTIFICATE OF COMPLIANCE ii -

4 TABLE OF AUTHORITIES U.S. CONSTITUTION. STATUTES. AND REGULATIONS U.S. CONST. art. VI, , 3, Virginia Public Procurement Act, Virginia Code through Virginia Code Virginia Code , 10 Virginia Code A , 11, 12 Virginia Code C Virginia Code F , 15 Virginia Code A... 14, 16 U.S. Department of Housing And Urban Development (HUD) Regulations, "Procurement," 24 C.F.R , removed, 79 Fed. Reg (December 19th, 2014)... 2 HUD Procurement Handbook Number REV HUD Procurement Handbook Number REV 2!" 7.4 "Procurement of Legal Services by PHAs" HUD Procurement Handbook Number REV 2!" 13.1 ~'General" iii -

5 HUD Procurement Handbook Number REV 2, "State Law"... 3 CASES CITED Hawthorne v. VanMarter, 279 Va. 566; 692 S.E.2d 226 (Va. 2010) Hilton v. Martin, 275 Va.-176; 654 S.E. 2d 572, 574 (Va. 2008) John T. Moore & Associates, P.C. v. Virginia Commonwealth University, 69 Va. Cir. 200 (City of Richmond 2005); 2005 Va. Cir. LEXIS JWK International Corp. v. United States, 49 Fed. Cl. 371 (2001); aff'd, 279 F.3d 985 (Fed. Cir. 2002), reh'g denied, 2002 U.S. App. LEXIS Norfolk Electric, Inc. v. Fall River Housing Authority, 417 Mass. 207; 629 N.E.2d 967 (Mass. 1994) Sabre Construction Corp. v. County of Fairfax, 256 Va. 68; 501 S.E.2d 144 (Va. 1998) iv-

6 UNCONTESTED FACTS THE PARTIES Plaintiff Cooper, Spong & Davis, P.C. (CS&D) has since establishment of the Portsmouth Redevelopment & Housing Authority (PRHA) in 1938 provided professional legal services, representing PRHA in matters involving tax, commercial real estate, environmental issues, bonds, and litigation. CS&D Response to PRHA's Petition for Injunction and Motion to Disqualify, Affidavit of Robert C. Barclay IV, '"'" 4, 5, page 18 of 66, January 4th, 2016 (Response). PRHA is a political subdivision created under the laws of the Commonwealth to provide within the.city of Portsmouth, Virginia federally-subsidized public and other affordable housing to eligible low-income families. PRHA is a separate entity from the City of Portsmouth. PRHA is headed by an Executive Director and is governed by a seven-person Board of Commissioners. CS&D Complaint, Attachment 2, PRHA RFP , "Legal Services," page 27 of 61, October 28th, 2015 (Complaint)

7 THE CHOICE OF LAW PROVISION As announced in the PRHA Legal Services Solicitation here in issue and then as it was later confirmed by PRHA's Contracting Officer, PRHA Procurements, as this one, are subject to the Virginia Public Procurement Act, Virginia Code through ; and to HUD Procurement Handbook Number REV 2." Complaint, Attachment 2, pages 27, 33 of 61; Complaint, Attachment 8, page 61 of 61. This HUD Procurement Handbook Number REV 2 sets out in Chapter 13. "State and Local Laws and Regulations Governing PHA Procurement" a choice oflaw provision and self-generated limitation on the conflict preemption otherwise imposed by the Supremacy Clause, Article VI, Section 2, U.S. CONSTITUTION: In addition to federal law and regulations, PHAs [Public Housing Authorities] are governed by a wide assortment of state and local requirements. In general, where these rules conflict, the more stringent rule applies.... HUD Procurement Handbook Number REV 2,!' 13.1 "General" (Emphasis added), page /2007. Complaint, Attachment 1, page 18 of 61; Accord, Norfolk * The PRHA Contracting Officer's assertion of October 20th, 2015 that PRHA is required to also follow HUD Regulations at 24 C.F.R , "Procurement," is incorrect-this HUD Regulation has been removed. 79 Fed. Reg (December 19th, 2014). -2-

8 Electric, Inc. v. Fall River Housing Authority, 417 Mass. 207, 217; 629 N.E.2d 967, 973 (Mass. 1994) (HUD Regulations resolve conflicts oflaw by imposing compliance with State procurement laws in States with standards as stringent as, or more stringent than, HUD standards). The Virginia Public Procurement Act has since 1983 provided detailed, stringent procedures following the American Bar Association's Model Procure-. ment Code ( aiaucmp/ groups/ aia/ documents/pdf/ aias pdf, last visited October 2'111, 2015), and under this choice oflaw provision and self-generated limitation on conflict preemption otherwise imposed by the Supremacy Clause, Article VI, Section 2, U.S. CONSTITUTION, these are recognized as controlling: Some States have passed very detailed "Procurement Codes" based on the American Bar Association's (ABA) Model Procurement Code for State and Local Governments, which apply to local governments, including PHAs. In these States, detailed procedures are provided for nearly all aspects of public contracting ranging from types of specifications to contract administration. HUD Procurement Handbook Number REV 2,! 13.3 "State Law" E. (Emphasis added), page /2007. Complaint, Attachment l, page 19 of 61. THE PRHA LEGAL SERVICES SOLICITATION On June 30th, 2015 PRHA issued a Solicitation, Request for Proposals Number , for a successor professional legal services Contract. Complaint, Attachment - 3 -

9 2, pages 22 through 46 of 61. This successor professional legal services Contract is for a base period of one year with four option years. Pricing was required for all five years, and was evaluated. Complaint, Attachment 2, page 38 of 61. Competitive Proposals were received on August 4th, Complaint, Attachment 2, page 27 of 61. Selection was to be made under scored (100 points available) <<Technical Evaluation" criteria: similar experiences/competence - 25 points; past performances - 30 points; capability to provide services demonstrating knowledge, of applicable laws and Federal standards - 15 points; lowest price - 20 points; efforts to use disadvantaged business enterprises - 5 points; and strategy to use lower in-. come residents of the project area - 5 points. Complaint, Attachment 2, page 35 of 61. This announced point scoring assigned a weight to low Price, and that weight was only 20 percent of the non-monetary value of the particular Competitive Proposal under consideration. The PRHA Legal Services "Solicitation set out the process for Competitive Proposal evaluation: All responsive qualification packages received by the Authority within the established deadline that meet the submission requirements will be evaluated by the RFP Evaluation Panel consisting of three (3) or more voting members. -4-

10 The Contracting Officer will forward responsive qualification packages to the RFP Evaluation Panel. Each such qualification package will be evaluated by the RFP Evaluation Panel using the selection criteria set forth in Section 4 of this RFP and.scored on the basis of the information contained in the qualification package. Factors not specified in the RFP may not be considered. The sum of the points assigned to each qualification package by an individual panel member shall be averaged with all the panel members' scores for each Offeror and these numbers shall be the "Final Score" for each Offeror... Complaint, Attachment 2, page 38 of 61. These were the announced A ward Criteria: Following the evaluation of Proposals, the Authority will compose a list of highest-rated, responsible Offerors to determine the competitive range. The Authority shall engage in individual discussions with two or more Offerors deemed fully qualified, responsible and suitable based on initial responses and with emphasis on professional competence, to provide the required ser-. vices. Repetitive informal interviews or oral presentations shall be permissible. Such Offerors shall be encouraged to elaborate on their qualifications and performance data or staff expertise pertinent to the proposed services, as well as alternative concepts. At the discussion stage the Authority may discuss non-binding estimates of costs, including, but not limited to, nonbinding estimates of price for specific services. Proprietary information from competing Offerors shall not be disclosed to the public or to competitors. At the conclusion of the informal interviews, on the basis of evaluation factors published in the Request for Proposals and all information developed in the selection process to this point, the Authority shall request the two or more fully qualified, responsible and suitable Offerors in the competitive range to submit and Best and Final Offer. The Authority shall award the contract to the most qualified Offeror whose Proposals will be most advantageous to the -5-

11 Authority and with whom the Authority is able to reach agreement in accordance with Section 6 hereof. Complaint, Attachment 2, page 41 of 61 (Emphasis added). The PRHA Legal Services Solicitation allowed multiple Awards: The Authority reserves the right to make multiple awards as a result of this solicitation. Should the Authority determine in writing and in its sole discretion that only one Offeror is fully qualified, or that one Offeror is clearly more highly qualified and suitable than the others under consideration, a contract may be negotiated and awarded to that Offeror. Complaint, Attachment 2, page 39 of 61. Competitive Proposals were submitted by only two law firms: CS&D and Eric 0. Moody & Associate, P.C., 355 Crawford Street, Suite 810, P.ortsmouth, Virginia (Moody). CS&D's Competitive Proposal was scored at points out of 100 available points and Moody's Competitive Proposal was scored at points out of 100 available points. Complaint, Attachment 3, page 48 of 61. Moody submitted the lower Price (an hourly rate) of $ vice CS&D,s hourly rate of $165.00, but the weighting of low Price publicly announced by PRHA resulted in less than a 1 percent difference in point score and in value. Complaint, Attachment 4, page 49 of

12 PRHA Staff recommended multiple Awards of the professional legal services Con-. ' tract, one to CS&D, and one to Moody. Complaint, Attachment 5, page 53 of 61. Instead, on September 21st, 2015 PRHA's Board of Commissioners gave public Notice that "we intend to award to the firm of Eric 0. Moody and Associates, P.C." Complaint, Attachment 6, page 55 of 61; Response, Affidavit of Robert C. Barclay IV,,- 10, page 19 of 66. These are the Protest Procedures which were annow1ced in the PRHA Legal Services Solicitation: Who May File: Any actual or prospective Bidder/Offeror to a PRHA solicitation whose direct economic interest would be directly affected by the award of the contract, may protest a solicitation or a contract award only for alleged material violations of the principles of this Policy; HUD procurement regulations; and applicable Federal, State and local laws. Solicitation documents shall set forth PRHA' s protest rights. Filing Deadline: A protest against a solicitation must be received from the prospective Bidder/Offeror before the due date for receipt of bids or proposals. A protest against the award of a contract or cancellation of a solicitation must be received within ten (10) calendar days after notice of contract award or notice of cancellation of a solicitation, or the protest will not be considered. Filing Procedure: All protests shall be in writing, submitted to the Contracting Officer. -7-

13 Contracting Officer's Decision: The Contracting Officer shall conduct an investigation as appropriate, and shall issue a written decision on the matter expeditiously after reviewing all relevant information. The Contracting Officer's decision shall inform the protester of any appeal rights within PRHA. The Contracting Officer may, at his or her discretion, suspend the procurement pending resolution of the protest, if warranted by the facts presented. The filing of a protest shall not prevent PRHA from entering into a contract with the successful Bidder/Offeror. Appeal Rights: The decision of the Contracting Officer in a protest or contract claim may only be appealed to the PRHA Board of Commissioners. Deadline for Appeal: All such appeals must be submitted by the contractor in writing within fourteen (14) calendar days from the date of the Contracting Officer's decision. Board of Commissioners Consideration of Appeal: The Board of Commissioners may consider a properly and timely filed appeal by public hearing, or by appointment of a hearing officer who shall hear the appeal, make findings of fact, and recommend a decision to the Board of Commissioners on the appeal. Final Determination of the Board: The Board shall have the sole authority to enter a final decision on the appeal, based on the recommendation of the hearing officer or based on a hearing of the Board. The decision of the Board of Commissioners shall be the final PRHA consideration of the appeal... Complaint, Attachment 2, pages 44 through 45 of

14 VIRGINIA PUBLIC PROCUREMENT ACT SELECTION PROCEDURES FOR PROFESSIONAL SERVICES This is the definition of"professional Services" in the Virginia Public Procurement Act: "Professional services" means work performed by an independent contractor within the scope of the practice of accounting, actuarial services, architecture, land surveying, landscape architecture, law, dentistry, medicine, optometry, pharmacy or professional engineering... Virginia Code These are the detailed, stringent procedures set out in the Virginia Public Procurement Act for the purchase of professional services: For professional services, the public body shall engage in individual discussions with two or more offerors deemed fully qualified, responsible and suitable on the basis of initial responses and with emphasis on professional competence, to provide the required services. Repetitive informal interviews shall be permissible. The offerors shall be encouraged to elaborate on their qualifications and performance data or staff expertise pertinent to the proposed project, as well as alternative concepts. In addition, offerors shall be informed of any ranking criteria that will be used by the public body in addition to the review of the professional competence of the offeror.... At the conclusion of discussion, outlined in this.subdivision, on the basis of evaluation factors published in the Request for Proposal and all information developed in the selection process to this point, the public body shall select in the order of preference two or more offerors whose professional qualifications and proposed services are deemed most meritorious

15 Negotiations shall then be conducted, beginning with the offeror ranked first. If a contract satisfactory and advantageous to the public body can be negotiated at a price considered fair and reasonable, the award shall be made to that'offeror. Otherwise, negotiations with the offeror ranked first shall be formally terminated and negotiations conducted with the offeror ranked second, and so on until such a contract can be negotiated at a fair and reasonable price. Virginia Code A. 4. (Emphasis added). The Virginia Public Procurement Act defines the term "best value" and related concepts such as Competitive Proposals determined to be "most advantageous": "Best value," as predetermined in the solicitation, means the overall combination of quality, price, and various elements of required services that in total are optimal-relative to a public body's needs. Virginia Code The terms "best value" and "most advantageous" are interchangeable. ]WK International Corp. v. United States, 49 Fed. CL 371, 388 (2001); aff d, 279 F.3d 985 (Fed. Cir. 2002); reh'g denied, 2002 U.S. App. LEXIS When Public Bodies acquire professional services such as legal services, the Virginia Public Procurement Act forbids an Award on "best value" or its related concepts: Public bodies may consider best value concepts when procuring goods and nonprofessional services, but not construction or professional se~ces. Virginia Code

16 HUD PROCUREMENT HANDBOOK NUMBER REV 2 PROCEDURES FOR PHA PROCUREMENT OF LEGAL SERVICES These are simplistic and less stringent procedures which are set out by HUD for PHA procurements of legal services: Competitive Proposals. This method is generally preferred when procur-. ing professional services because it allows for the consideration of technical quality or other factors (in addition to price) for securing services estimated to cost more than the Federal small purchase threshold or a lower threshold as established by the PHA (e.g., to conform to State law). Competitive offers are solicited, proposals are evaluated, and award is made to the offeror whose proposal is most advantageous to the PHA, with price and other factors (as specified in the solicitation) considered. Either a fixed-price or cost reimbursement type contract may be awarded... HUD Procurement Handbook Number REV 2,! 7.4 ((Procurement of Legal Services by PHAs (24 CFR 85.36(b )(1)" C.3., page /2007; Complaint, Attachment 8, page 61 of 61. THE PROTEST CS&D timely protested PRHA's Notice of intent to award solely to Moody the successor professional legal services Contract. CS&D complained that PRHA's intent to award a single-source professional legal services Contract to Moody was arbitrary or capricious and in violation of the Virginia Public Procurement Act, Virginia Code A. 4. Complaint, Attachment 7, pages 57 through 59 of

17 PRHA's DENIAL OF THE PROTEST On October 20th, 2015PRHA's Contracting Officer denied CS&D's timely P.rotest, wrongly concluding that the procedures set out in HUD Procurement Handbook Number 7460'.,~ REV 2,! 7.4 «Procurement of Legal Services by PHAs (24 CFR 85.36(b)(l)" C.3. controlled because they were more stringent than the procedures set out in the Virginia Public Procurement Act for the purchase of professional services, Virginia Code A. 4. PRHA's Contracting Officer misapplied HUD's conflict of law provision and self-generated limitation on the conflict preemption otherwise imposed, saying these Virginia Public Procurement Act procedures were «not. applicable to the provision of Legal Services in this case due to HUD requirements detailing the method of award for a Competitive Proposal process." PRHA's Contracting Officer went on: The proposal submitted by Cooper, Spong and Davis, including its pricing, met the requirements of the RFP and was fair and reasonable; however, the Board of Commissioners felt the proposal presented by Eric 0. Moody and Associates was more advantageous to the Authority. Therefore, the award decision was not arbitrary or capricious. Complaint, Attachment, page 61 of

18 \ The Protest Procedures announced in the PRHA Legal Services Solicitation provided that «[t]he Contracting Officer's decision shall inform the protester of any appeal rights within PRHA." The PRHA Contracting Officer in her Decision of Octoher 20th, 2015 says nothing about any Appeal rights or remedies within PRHA. VIRGINIA PUBLIC PROCUREMENT ACT PROCEDURES FOR LEGAL ACTIONS These are the Virginia Public Procurement Act procedures providing options for Legal Actions or for Administrative Procedures (Remedies), either of which (but not both), may be initiated by a Bidder or Offeror after a Protest is denied by a Public Body: A bidder, offeror or contractor, or a potential bidder or offeror on _a contract negotiated on a sole source or emergency basis in the manner provided in , whose protest of an award or decision to award under is denied, may bring an action in the appropriate circuit court challenging a proposed award or the award of a contract, which shall be reversed only if the petitioner establishes that the proposed award or the award is not (i) an honest exercise of discretion, but rather is arbitrary or capricious or (ii) in accordance with the Constitution of Virginia, applicable state law or rt:gulation, or the terms and conditions of the Invitation to Bid or Request for Proposal. Virginia Code C. A bidder, offeror or contractor need not utilize administrative procedures meeting the standards of , if available, but if those procedures are

19 invoked by the bidder, offeror or contractor, the procedures shall be exhausted prior to instituting legal action concerning the same procurement transaction unless the public body agrees otherwise. Virginia Code F. (Emphasis added). A public body may establish an administrative procedure for hearing (i) protests of a decision to award or an award, (ii) appeals from refusals to allow withdrawal of bids, (iii) appeals from disqualifications and determinations of nonresponsibility, and (iv) appeals from decisions on disputes arising during the performance of a contract, or (v) any of these. Such administrative procedure shall provide for a hearing before a disinterested person or panel, the opportunity to present pertinent information and the issuance of a written decision containing findings of fact. The disinterested person or panel shall not be an employee of the governmental entity against whom the claim has been filed. The findings of fact shall be final and conclusive and shall not be set aside unless the same are (a) fraudulent, arbitrary or capricious; (b) so grossly erroneous as to imply bad faith; or ( c) in the case of denial of prequalification, the findings were not based upon the criteria for denial of prequalification set forth in subsection B of No determination on an issue of law shall be final if appropriate legal action is instituted in a timely manner. Virginia Code A. THE LEGAL ACTION CS&D filed this Civil Action on October 28th, CS&D did not invoke Administrative Remedi.es before filing this Civil Action. The PRHA Contracting Officer did not in her Decision of October 20th, 2015 give notice of any Appeal rights or Administrative Remedies available within PRHA

20 ARGUMENT DEFENDANTS' PLEA IN BAR Defendants invoke Rule 3:8( a) of the Rules of the Supreme Court of Virginia and they interpose a Plea In Bar in lieu of an Answer, claiming that "Plaintiff failed to exhaust administrative remedies." PRHA Plea In Bar to Complaint for Declaratory Relief, page 1 of 2, November 6th, A Plea In Bar challenges a plaintiffs factual position. Hilton v. Martin, 275 Va. 176, ; 654 S.E. 2d 572, 574 (Va. 2008) ("[A] plea in bar presents a distinct issue of fact which, if proven, creates a bar to the plaintiffs right of ") recovery.. The point of a Plea In Bar is to narrow the litigation by resolving an issue which will determine whether a plaintiff is entitled to a hearing on the merits. The moving party bears the burden of proof, and the Plea In Bar may be submitted based on uncontested facts identified by the parties. Hawthorne v. VanMarter, 279 Va. 566, 577; 692 S.E.2d 226, 233 (Va. 2010)

21 THE VIRGINIA PUBLIC PROCUREMENT ACT AFFORDS PRECLUSIVE EFFECT ONLY IF OPTIONAL ADMINISTRATIVE REMEDIES ARE INVOKED Virginia Code F. does not compel the use of Administrative Remedies when a Protest is denied, and affords a preclusive effect only after a Bidder or Offeror voluntarily invokes Administrative Remedies when a Protest is denied and then files a Civil Action before conclusion of the Administrative Remedies earlier initiated. A Bidder or Offeror may not, prior to the Public Body's announcement of its Decision,. commence a legal action. John T. Moore & Associates, P.C. v. Virginia Commonwealth University, 69 Va. Cir. 200, 202 ( City of Richmond 2005); 2005 Va. Cir. LEXIS 356, *7. THE OPTIONAL ADMINISTRATIVE REMEDIES HERE PROVIDED Do NOT MEET STANDARDS OF THE VIRGINIA PUBLIC PROCUREMENT ACT Virginia Code A. mandatorily requires that optional Administrative Remedies provided by Public Bodies offer hearings before a disinterested person or panel and result in Findings of Fact which themselves are final and conclusive. The Administrative Remedies provided by the PRHA Legal Services Solicitation do not meet these mandatory standards: (1) the PRHA Board of Commissioners is not disinterested and there is no requirement that a disinterested hearing officer be offered

22 as an alternative to a public hearing before the PRHA Board of Commissioners; and (2) Findings of Fact are mandated only if the hearing officer offered as an alternative is appointed, and even then these Findings of Fact are not deemed final and conclusive. These mandatory requirements of the Virginia Public Procurement Act are detailed, stringent procedures which, under HUD's choice of law provision and self-. generated limitation on conflict preemption otherwise imposed by the Supremacy Clause, Article VI, Section 2, U.S. CONSTITUTION, are recognized as controlling. The Administrative Remedies provided by the PRHA Legal Services Solicitation are not authorized by the Virginia Public Procurement Act and could not have afforded a preclusive effect even if they had been initially invoked by CS&D, which they were not. The Virginia Public Procurement Act is a waiver of the sovereign immunity of the Public Bodies to which it applies, is in derogation of the Common Law, and, therefore, must be narrowly construed. Sabre Construction Corp. v. County of Fairfax, 256 Va. 68, 73; 501 S.E.2d 144, 147 (Va. 1998)

23 ~):::::> Cyrus E. Phillips IV Virginia State Bar Number Albo & Obion, L.L.P. Courthouse Plaza 2200 Clarendon Boulevard, Suite 1201 Arlington, Virginia Telephone: Facsimile: Mobile: (757) (703) (703) Electronic.Mail: Attorney of record for Plaintiff, Cooper, Spong & Davis, P.C

24 CERTIFICATE OF SERVICE Pursuant to Rule 1:12 of the Rules of the Supreme Court of Virginia I certify that true and accurate copies of the foregoing were served, via United States Postal Service Priority Mail, expenses prepaid, this 5th day of February 2016, on: Verbena M. Askew THE VERBENA ASKEW LAW FIRM, P.C. Pinewood Plaza 1919 Commerce Drive, Suite 320 Hampton, Virginia Telephone: Facsimile: Electronic Mail: (757) (757) vaskewlawfirm@verizon.net Attorney of record for Defendants, ~th Resment &Housing Authority Cyrus E. Phillips IV

25 CERTIFICATE OF COMPLIANCE Pursuant to Rules 1:16(a) and4:15(c) of the Rules of the Supreme Court of Virginia the undersigned certifies this Memorandum of Law is set in Adobe's Minion Pro Opticals, a proportionally-spaced Garalde Oldstyle face; this Memorandum of Law is set in face 14-point or larger; this Memorandum of Law is produced on pages 8 ~ by inches in size and is double-spaced except for quotations; and this Memorandum of Law does not, exclusive of the Table of Contents and the Table of Authorities, exceed 20 pages