Chapter 22 - IT Competitive Sealed Bidding / Invitation for Bid

22.9.4 Determining a bidder is non-responsible and protests of non-responsibility determinations

After evaluation of criteria, an agency may determine that the apparent low bidder is not responsible (refer to § 2.2-4359, Code of Virginia). If a bidder who otherwise would have been awarded a contract is found to be non-responsible, a written determination of non- responsibility setting forth the reasons for the finding shall be prepared by the agency and included in the procurement file. Prior to the issuing a written determination of non- responsibility, the agency shall notify the low bidder of this finding, disclose the factual support for the finding and allow the low bidder an opportunity to inspect any documents that relate to the finding of non-responsibility.

The bidder will have five (5) business days after receipt of the notice to request an opportunity to inspect any documents that relate to the finding of non-responsibility. Within ten (10) business days after receipt of the notice, the bidder may submit rebuttal information to the agency challenging the non-responsibility determination.

Within five (5) business days of receiving the rebuttal information from the bidder, the agency shall issue its written determination of responsibility based on all information in its possession, including any rebuttal information provided by the bidder. The agency shall notify the bidder in writing of its determination. Such writing shall be delivered to the bidder by the agency through electronic means and through a certified mailing with return receipt requested. The agency’s written determination of a bidder’s non-responsibility shall state the basis for the determination. The agency’s determination of non-responsibility shall be final unless the bidder appeals the agency’s or determination within 10 days after receipt of the notice.  Bidder may appeal the agency’s non-responsibility determination by filing an appeal within 10 days’ written notice of the agency’s determination in the appropriate circuit court as provided in § 2.2-4364 of the Code of Virginia.

2.2-4365 does not apply to procurements involving prequalification of bidders and the rights of any potential bidders under such prequalification to appeal a decision that such bidders are not responsible. If, upon appeal pursuant to § 2.2-4364 or § 2.2-4365, it is determined that the agency’s determination of non-responsibility was not an honest exercise of discretion but was arbitrary and capricious or not in accordance with the Constitution of Virginia, applicable state law or regulation, or the terms or conditions of the IFB, and the award of the contract has not yet been made, the sole relief shall be a finding that the bidder is a responsible bidder for the contract in question or directed award as provided in § 2.2-4364(A) or both.

If the award has been made when it is determined that the agency’s determination of a bidder’s non- responsibility was not an honest exercise of discretion but arbitrary and capricious (refer to § 2.2-4360 of the Code of Virginia), the agency can choose between several available options under the VPPA:

• If the award has not been made, the bidder’s sole relief shall be that the bidder is a responsible bidder for the contract in question.
• If the award has been made but performance not yet begun, performance maybe enjoined.
• If the award has been made and performance has begun, the agency may declare the awarded contract void upon a finding that to do so is in the public body’s best interest. Where a contract is declared void, the performing bidder will be compensated for the cost of performance up to the time of contract termination but in no event shall the performing bidder be entitled to lost profits.

If an agency determines or it is determined through the appeals process that there is probable cause to believe that the agency’s decision to award was based on fraud or corruption or a violation of Ethics in Contracting, the agency may enjoin the award of the contract to a particular bidder.

If the bidder institutes legal action in the appropriate circuit court challenging the agency determination of non-responsibility and the court finds the bidder to be a responsible bidder, the court may direct the public body to award the contract to such bidder in accordance with the § 2.2-4364 of the Code of Virginia and the Invitation to Bid. §2.2-4364 of the Code of Virginia provides that a court can reverse an agency’s finding of non-responsibility only if the bidder is able to establish that the decision was not (i.) an honest exercise of discretion but rather was arbitrary and capricious; (ii) in accordance with the Constitution of Virginia, applicable state law or regulation or consistent with the terms and conditions of the IFB.