32.5 Protest of award

Any supplier who desires to protest a contract award shall submit a written protest to the purchasing agency no later than ten days after public posting of the notice of award. The purchasing agency shall publicly post the contract award in https://eva.virginia.gov/ as well as in any other public venue as outlined in the solicitation. Any potential supplier who desires to protest a contract award negotiated on a sole source or emergency basis shall submit a written protest to the purchasing agency no later than ten days after posting of the contract award. The written protest must be received by the purchasing agency no later than 5:00 p.m. on the tenth day. If the tenth day falls on a weekend or an official holiday, the ten-day period expires at 5:00 p.m. on the next regular workday. No protest shall lie for a claim that the selected supplier is not a responsible bidder or offeror. A supplier shall not challenge the validity of the terms or conditions of the solicitation.

If the protest of any supplier depends in whole or in part upon information contained in public records (refer to Virginia Freedom of Information Act for guidance) pertaining to the procurement transaction which are subject to inspection under the § 2.2-4342 of the Code of Virginia then the time within which the protest must be submitted shall expire ten days after those records are available for inspection by such bidder or offeror under § 2.2-4342 of the Code of Virginia.

The written protest shall include the basis for the protest and the relief sought. The purchasing agency shall issue a decision in writing within ten days stating the reasons for the action taken. This decision shall be final unless the supplier appeals within ten days of receipt of the written decision by the purchasing agency by invoking VITA’s ADR procedure (Alternative Dispute Resolution Procedure) or by instituting legal action as provided in § 2.2-4364 of the Code of Virginia.

If, prior to contract award, the purchasing agency determines that the decision to award is arbitrary or capricious, then the sole relief shall be a finding to that effect. The agency shall cancel the proposed award or revise it to comply with the law. If the contract award has been posted, but contract performance has not begun and the purchasing agency determines that the award was arbitrary and capricious, then the performance of the contract may be enjoined. Where the award has been made and performance has begun, the agency may declare the contract void upon a finding that such declaration is in the best interest of the public. Where a contract is declared void, the performing supplier shall be compensated for the cost of performance up to the time of such declaration. In no event shall the performing supplier be entitled to lost profits. (§ 2.2-4360 of the Code of Virginia.) The table below provides a snapshot of the actions required by affected participants.

 

 

Protesting supplier

Purchasing agency

ADR

Legal action

1

Files written protest with agency within 10 days of posting of contract award

 

 

 

2

 

Receives protest. Submits written response to protester within 10 days of receipt of protest. Written response should approve or deny protest. If agency decides award was arbitrary or capricious, award may be cancelled or revised if performance has not begun. If performance has begun, performance may be enjoined. Agency may declare contract void if in public’s best interest and resolicit.

 

 

3

Supplier may appeal decision within 10 days of receipt by invoking ADR (administrative appeals procedure) or instituting legal action.

 

 

 

4

 

If supplier invokes ADR, agency should follow VITA’s ADR procedures (VITA: Alternative Dispute Resolution Procedure)

 

 

5

 

 

Agency and protesting supplier meet with facilitator to review solicitation and contract award. Result of ADR may be cancellation of award, award of contract to protesting supplier, contract cancellation.

 

6

 

 

 

If ADR is not successful, supplier has statutory right to file legal action against agency within six months of receipt of protest denial.