In our previous two posts, addressing bid protests in D.C. and Maryland, we provided the reader with a survey of the authorities and relevant protest procedures for procuring agencies in those jurisdictions. Those articles can be found here and here.
To recap, Maryland can be characterized as having a predominantly centralized procurement system, with most purchasing authority being delegated by its Governor-led Board of Public Works, and many protest roads leading to the Maryland State Board of Contract Appeals.
D.C. is somewhat less centralized. Although the D.C. Office of Contracting and Procurement runs many acquisitions, there are also agencies that have been given statutory procurement autonomy. The D.C. Contract Appeals Board is the primary node of protesting activity, but not all agencies are under its jurisdiction.
Now, we take you to the Commonwealth, where decentralization is the rule. In Virginia, state law generally vests procurement authority in the individual agency or locality. Further, there is no centralized administrative bid protest forum, and the protest process that occurs in front of the agency or locality can be described as quickly driving the parties into a court of law. With these principles in mind, here is a synopsis of bid protests in Virginia.
GENERALLY RELEVANT LAW
The relevant statutes can be found in the Virginia Public Procurement Act.
AUTHORITY TO ISSUE SOLICITATIONS AND MAKE AWARDS
The Virginia Public Procurement Act (“VPPA”) vests procurement authority in public bodies, and their authorized officials. A public body is broadly defined as “any legislative, executive or judicial body, agency, office, department, authority, post, commission, committee, institution, board or political subdivision created by law to exercise some sovereign power or to perform some governmental duty[.]” Va. Code § 2.2-4301. Further, the VPPA provides that a public body may create its own rules and ordinances in order to effectuate its procurement authority, as long as the rules are not inconsistent with the VPPA. However, some public bodies (e.g., small towns) may be exempt from some or all of the VPPA provisions.
The official responsible for awarding the contract is often referred to as a Purchasing Agent. The Purchasing Agent may or may not exercise procurement authority in conjunction with a political entity, such as a County Board that approves contract awards over a certain dollar threshold. Many solicitations are posted on Virginia’s eProcurement Portal.
INITIAL PROTEST FORUM
Virginia does not have an independent tribunal dedicated to administrative bid protests. Rather, all protests occur in front of the agency/public body that made the award. Thereafter, some agencies/public bodies may provide for an administrative appeal process in front of a “disinterested person or panel,” which the protester can pursue instead of going directly to a court of law. Va. Code § 2.2-4365.
TIME TO PROTEST
For the protest of an award decision, the contractor must file its protest with the public body “no later than ten days after the award or the announcement of the decision to award, whichever occurs first.” Va. Code § 2.2-4360(A). However, a bidder or offeror may request to inspect the procurement records, after the bid opening or technical evaluation, but before award, and if so, “then the time within which the protest shall be submitted shall expire ten days after those records are available for inspection by such bidder or offeror under § 2.2-4342[.]” Va. Code §§ 2.2-4342 and 2.2-4360(A). Of note, although the VPPA states several legal requirements for solicitations, it does not expressly provide for a solicitation term protest, and, in fact, the protest provision states that “[n]othing in this subsection shall be construed to permit a bidder to challenge the validity of the terms or conditions of the Invitation to Bid or Request for Proposal[.]” Va. Code § 2.2-4360(A). Also, there is a separate process for challenging an ineligibility determination that prevents a contractor from competing. For challenging an ineligibility determination, the contractor may request to view the documents relevant to that determination within five business days following receipt of the public body’s written notice, and must submit a challenge to the public body within ten business days following receipt of the written notice.
ACCESS TO INFORMATION
The VPPA provides a bidder or offeror with the opportunity to inspect procurement records after the bid opening or technical evaluation, but before award. Additionally, after award, any citizen or interested person may inspect the procurement records. Disclosure is subject to the exclusions in the Virginia Freedom of Information Act, but there is a general presumption of public release. To help prevent public release of its bid or proposal information, a bidder or offeror should mark bid or proposal materials as proprietary or protected. However, a February 2018 change to the VPPA (H.B. No. 905) prevents a bidder or offeror from designating an entire bid or proposal as proprietary information.
STAY OF PERFORMANCE
If, upon receiving a timely protest, the contract has not been awarded, “no further action to award the contract shall be taken unless there is a written determination that proceeding without delay is necessary to protect the public interest or unless the bid or offer would expire.” Va. Code § 2.2-4362. However, if the contract was awarded before the protest was filed, the public body may, but is not required, to stay contract performance.
PROTEST PROCEDURE
Following the timely filing of the written protest of an award, the VPPA contemplates an extraordinarily speedy process. Particularly, “[t]he public body or designated official shall issue a decision in writing within ten days stating the reasons for the action taken.” Va. Code § 2.2-4360(A). Thereafter, if the public body provides an administrative appeal process in front of a “disinterested person or panel,” the protester has ten days to file an appeal there, or at a court of law. Va. Code §§ 2.2-4360 and 2.2-4365. If the protester takes advantage of an administrative appeal process, the protester cannot go to a court of law until the administrative appeal process is complete. Once an administrative appeal is complete, the protester will have thirty days to bring a challenge of the appeal determination to the appropriate County or City Circuit Court. If the protest is in front of a public body which is exempt from the VPPA, the protest process should be stated in the relevant solicitation, regulations, or ordinances.
AVAILABLE REMEDIES
If the protest is instituted before contract award, and the protest decision-maker finds the procurement decision to be arbitrary and capricious, “[t]he public body shall cancel the proposed award or revise it to comply with the law.” VA Code § 2.2-4360(B). Otherwise, “[w]here the award has been made but performance has not begun, the performance of the contract may be enjoined. Where the award has been made and performance has begun, the public body may declare the contract void upon a finding that this action is in the best interest of the public.” Va. Code § 2.2-4360(B).
GOING TO COURT
The VPPA states that an agency bid protest decision is reviewable in a County or City Circuit Court.
We thank you for following our three-part series on state procurement protests in the DMV.
Alfred Wurglitz supervised the creation of this blog series.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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