This is part of a series discussing state-level bid protests in the DMV. Click here to read about the process in D.C., and be on the lookout for our examination of the process in Maryland.
In the Commonwealth of Virginia, decentralization is the rule. Virginia state law generally vests procurement authority in the individual agency or locality, where a protest can move very quickly from submission to the awarding procurement authority onto appeal at the circuit court. With these principles in mind, here is a synopsis of bid protests in Virginia.
Generally Relevant Law
Relevant statutes in Virginia include the Virginia Public Procurement Act (VPPA).
Authority to Issue Solicitations and Make Awards
The 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. A public body subject to the VPPA may create its own rules and ordinances to effectuate its procurement authority, provided the adopted rules are consistent with the VPPA. Some public bodies (e.g., small towns), however, may be exempt from some or all the VPPA provisions and, thus, may have differing procurement procedures.
The official responsible for awarding the contract is often referred to as a Procurement Officer, or in some instances Contracting Officer or Purchasing Agent. The Procurement Officer 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.
Like other states, Virginia has an eProcurement Portal where it posts many of its solicitations.
Initial Protest Forum
Virginia does not have an independent tribunal dedicated to administrative bid protests. Rather, all protests are handled and decided by the public body that made the award. For example, if the award was made by a public school district, a protester would, unless otherwise instructed, file the protest with the particular school district’s Procurement Officer.
Time to Protest
There are several ways a contractor can challenge a procurement, each triggering different timeliness requirements.
The first timeline, and probably the most straightforward, is when a contractor wants to protest a public body’s award decision. In this instance, 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). Importantly, throughout this article and unless otherwise modified, a day is a calendar day.
The second timeline is triggered when a contractor makes a request to inspect the procurement records, after the bid opening or technical evaluation but before award, and that inspection prompts a basis for protest. Here, the protester must file its protest within “ten days after those records are available for inspection by such bidder or offeror.” Va. Code §§ 2.2-4342, 2.2-2360(A).
Most jurisdictions provide an express avenue for contractors to protest an agency’s solicitation; however, the VPPA, despite containing several legal requirements for Virginia’s solicitations, does not expressly provide for a way to challenge the terms of a solicitation. In fact, the VPPA provides 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 § 2.2-2360(A).
The third timeline is used if a contractor wants to challenge an ineligibility determination that prevents a contractor from competing. To challenge this type of 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 then must submit a challenge to the public body within ten business days following receipt of the written notice.
Because protests must be filed timely or risk dismissal, contractors should contact experienced counsel as soon as possible to discuss possible protest routes.
Access to Information
The VPPA provides bidders and offerors with the opportunity to inspect procurement records after the bid opening or technical evaluation but before award, which access must be in accordance with the Virginia Freedom of Information Act (VFIA). Under the VFIA, there is a general presumption of public release; however, there are exceptions and certain documents in the public body’s procurement record may be subject to these exceptions, such as all or part of a bidder’s or offeror’s proposal. Because of this, when contractors submit their proposals in response to a Virginia procurement, they should be mindful that their proposals could be subject to public disclosure.
To help prevent such release, a bidder or offeror should mark its proposal materials as proprietary or protected. However, it is important to note that a bidder may be required to explain why protection of its proposal is necessary and is not permitted to mark non-proprietary information in its proposal as needing to be withheld from public disclosure.
Stay of Performance
If, upon receiving a timely protest, the public body has not awarded the contract, “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 public body awarded the contract before the protest was filed, the public body may, but is not required, to suspend (or stay) contract performance.
Protest Procedure
Regardless of the basis of protest, a protester must submit its protest in writing, including the basis for protest and relief sought, to the awarding public body or an official designated by the public body, within the timeframes outlined above. After the protester timely files its written protest, the VPPA contemplates an extraordinarily speedy process. The public body (or designated official) is required to issue a written decision, stating the reasons for the action taken, within 10 days. This decision is the final agency decision unless the protester appeals.
Thereafter, if the public body provides for an administrative appeal process in front of a “disinterested person or panel,” the protester has 10 days to file an appeal there, or alternatively 10 days to file at a court of law. If the protester moves forward with an administrative appeal, the protester is prohibited from filing an action with the courts until the administrative appeal process is complete. Once an administrative appeal is complete, the protester has 30 days from receipt of the written determination to appeal to the appropriate circuit court. In court, the protester must establish that the agency’s decision was arbitrary and capricious or not in accordance with Virgina law. 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
There are three remedies depending on the stage of the procurement:
- If a contractor files a protest before contract award and the protest decision-maker finds the procurement decision to be arbitrary and capricious, the public body is required to cancel the proposed award or revise it to comply with the law.
- If a contractor files a protest after contract award but before performance has begun, the performance of the contract may be paused.
- If a contractor files a protest after contract award and performance has begun, the public body may declare the contract is void if it determines such action is in the best interest of the public.
Need Assistance
Because the protest and related appeals procedures can be intricate and contractors can risk dismissal if not properly followed, contractors should contact experienced counsel as soon as possible to discuss their options.
Opinions and conclusions in this post are solely those of the authors 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 authors have provided the links referenced above for information purposes only and by doing so, do not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the authors 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 authors 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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