Contracts with Virginia agencies, counties, municipal governments, and school boards are governed by the Virginia Public Procurement Act. The Act requires the use of competitive procedures in the solicitation and award of public contracts. It also establishes a procedure for the submission and resolution of bid protests. See Va. Code Ann. § 2.2-4360(A).
How and when to protest a contract award decision
An actual or prospective bidder seeking to challenge the award of a Virginia government contract must submit a protest to the procuring agency or to an official designated by the agency. The protest must be submitted in writing. It must include the basis for the protest and the relief sought. A bid protest must be submitted no later than ten days after the award or the announcement of the decision to award, whichever occurs first. This deadline is extended if the protest depends on obtaining access to documents. In those situations, the protest must be submitted within ten days after the records are made available. The VPPA does not specifically allow for the submission of a pre-award protest that challenges the terms and conditions of a solicitation.
If a protest is timely filed, the award and performance of the contract is automatically stayed unless the agency determines in writing that “proceeding without delay is necessary to protect the public interest or unless that bid or offer would expire.” Va. Code Ann. § 2.2-4362.
The decision and appeal process
A Virginia bid protest is initially considered by the head of the procuring agency, who is required to issue a written decision outlining the reasons for the determination within ten days of receiving the protest. The decision on the protest is final unless the protester appeals within ten days of receiving the written decision. Va. Code Ann. § 2.2-4360(A). A procuring agency that sustains a Virginia bid protest after a contract is awarded may enjoin the performance of the contract if performance has not yet started. If performance has started, the agency may declare the contract void. The agency may also award the contract immediately to a successful protester. Va. Code Ann. § 2.2-4360(B).
Parties that are not satisfied with the initial decision on a Virginia bid protest have a right of appeal, but they must take action within ten days of receiving the initial decision. If the agency has established a procedure for hearing appeals, the appealing party may choose to invoke the administrative appeal process. Va. Code Ann. § 2.2-4360(A). In an administrative appeal, the aggrieved party has the opportunity to present their case to a person or a panel of individuals who are not employees of the procuring agency. Va. Code Ann. § 2.2-4365(A). Upon the conclusion of the administrative appeal, a party that is not satisfied with the result may proceed with an action in state court. A court action to obtain judicial review of an administrative appeal must be filed within 30 days of receiving the decision on the administrative appeal. Va. Code Ann. § 2.2-4365(B).
Although a party that invokes an administrative appeal must complete it before beginning a court action (see Va. Code Ann. § 2.2-4364(F)), a protest decision can be appealed directly to a state court without even beginning the administrative appeal process. In contrast to the 30-day deadline that applies to actions challenging an administrative appeal decision, a direct action challenging an agency’s initial decision on a bid protest must be filed less than 10 days after receiving the initial decision. Va. Code Ann. § 2.2-4360(A).