22.10 Withdrawal of bids and bid mistakes, alterations and amendments

22.10.3 Appeal of denial of withdrawal of bid

§2.2-4358 of the Code of Virginia provides: "A decision denying withdrawal of bid under the provisions of §2.2-4330 shall be final and conclusive unless the bidder appeals the decision within ten days after receipt of the decision by invoking administrative procedures meeting the standards of §2.2-4365, if available, or in the alternative by instituting legal action as provided in §2.2-4364." §2.2-4364 of the Code of Virginia addresses the use of legal action: "A bidder denied withdrawal of a bid under §2.2-4358 may bring an action in the appropriate circuit court challenging that decision, which shall be reversed only if the bidder establishes that the decision of the public body was not (i.) an honest exercise of discretion, but rather was arbitrary or capricious or (ii.) in accordance with the Constitution of Virginia, applicable state law or regulation, or the terms or conditions of the Invitation to Bid."
 
Any bidder who requests in writing that a bid be withdrawn in accordance with §2.2-4358 will receive a written notice from the public body if that request is denied. The denial of bid withdrawal will be final unless the bidder, within ten (10) days after receipt of the notice denying withdrawal, institutes an appeal by invoking VITA's alternative dispute resolution procedures (Alternative Dispute Resolution Procedure) or appeals to the appropriate circuit court in accordance with Code of Virginia§ 2.2-4364. If after VITA's Alternative Dispute Resolution procedures are implemented, it is determined that the decision refusing withdrawal of the bid was arbitrary or capricious, the sole relief shall be withdrawal of the bid.

If no bid bond was posted, prior to appealing, the bidder must deliver to the agency a certified check payable to the Treasurer of Virginia, or a cash bond naming the Commonwealth of Virginia as obligee, in the amount of the difference between the bid sought to be withdrawn and the next low bid. The bid bond shall be released only upon the final determination that the bidder was entitled to withdraw the bid or upon acceptance of the awarded contract by the appealing bidder. The security shall be forfeited to the Commonwealth if the final decision is adverse to the appealing bidder who then fails to accept and enter into the contract or to appeal to a circuit court. In the event the bidder appeals to a circuit court and that court issues a decision adverse to the bidder upholding the Board's decision, the security shall be forfeited.