                                 CODE OF VIRGINIA

DETERMINATION OF NONRESPONSIBILITY (§ 2.2-4359)

A. Following public opening and announcement of bids received on an Invitation
to Bid, the public body shall evaluate the bids in accordance with element 4 of
the process for competitive sealed bidding set forth in § 2.2-4302.1. At the
same time, the public body shall determine whether the apparent low bidder is
responsible. If the public body so determines, then it may proceed with an award
in accordance with element 5 of the process for competitive sealed bidding set
forth in § 2.2-4302.1. If the public body determines that the apparent low
bidder is not responsible, it shall proceed as follows:

   1. Prior to the issuance of a written determination of nonresponsibility, the
   public body shall (i) notify the apparent low bidder in writing of the results
   of the evaluation, (ii) disclose the factual support for the determination,
   and (iii) allow the apparent low bidder an opportunity to inspect any
   documents that relate to the determination, if so requested by the bidder
   within five business days after receipt of the notice.

   2. Within 10 business days after receipt of the notice, the bidder may submit
   rebuttal information challenging the evaluation. The public body shall issue
   its written determination of responsibility based on all information in the
   possession of the public body, including any rebuttal information, within five
   business days of the date the public body received the rebuttal information.
   At the same time, the public body shall notify, with return receipt requested,
   the bidder in writing of its determination.

   3. Such notice shall state the basis for the determination, which shall be
   final unless the bidder appeals the decision within 10 days after receipt of
   the notice by invoking administrative procedures meeting the standards of
   &#xA7; 2.2-4365, if available, or in the alternative by instituting legal
   action as provided in &#xA7; 2.2-4364.
   				The provisions of this subsection shall not apply to procurements
   involving the prequalification of bidders and the rights of any potential
   bidders under such prequalification to appeal a decision that such bidders are
   not responsible.

B. If, upon appeal pursuant to &#xA7; 2.2-4364 or 2.2-4365, it is determined
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, and the award of the contract in
question has not 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 subsection A of &#xA7; 2.2-4364 or both.
			If it is determined that the decision of the public body was not an honest
exercise of discretion, but rather was arbitrary or capricious or not in
accordance with the Constitution of Virginia, applicable state law or
regulation, or the terms or conditions of the Invitation to Bid, and an award of
the contract has been made, the relief shall be as set forth in subsection B of
&#xA7; 2.2-4360.

C. A bidder contesting a determination that he is not a responsible bidder for a
particular contract shall proceed under this section, and may not protest the
award or proposed award under the provisions of &#xA7; 2.2-4360.

D. Nothing contained in this section shall be construed to require a public
body, when procuring by competitive negotiation, to furnish a statement of the
reasons why a particular proposal was not deemed to be the most advantageous.

E. Any determination that a low bidder is not responsible that uses such factors
listed in the Invitation to Bid as a basis for its decision shall be
presumptively considered an honest exercise of discretion.

HISTORY: 1982, c. 647, § 11-65; 1997, c. 864; 1998, c. 753; 1999, c. 1008;
2001, c. 844; 2013, c. 583; 2020, cc. 176, 1089.