§ 21-163. Determination of nonresponsibility.

(a)

Following public opening and announcement of bids received on an invitation for bids, the City shall evaluate the bids in accordance with Section 21-54. At the same time, the City shall determine whether the apparent low bidder is responsible. If the City so determines, it may proceed with an award in accordance with Section 21-55. If the City 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 City shall:

a.

Notify the apparent low bidder in writing of the results of the evaluation;

b.

Disclose the factual support for the determination; and

c.

Allow the apparent low bidder an opportunity to inspect any documents which relate to the determination, if so requested by the bidder within five business days after receipt of the notice.

(2)

Within ten business days after receipt of the notice, the bidder may submit rebuttal information challenging the evaluation. The City shall issue its written determination of nonresponsibility based on all information in the possession of the City, including any rebuttal information, within five business days of the date the City received such rebuttal information. At the same time, the City shall notify 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 as provided in Section 21-168 for administrative appeals or, in the alternative, by instituting legal action as provided in Section 21-169.

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, it is determined that the decision of the City was not an honest exercise of discretion, but rather was arbitrary or capricious or not in accordance with the State Constitution, any applicable State law or regulation or the terms and conditions of the invitation for bids 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 a directed award as provided in Section 21-168(a), or both. If it is determined that the decision of the City was not an honest exercise of discretion, but rather was arbitrary or capricious or not in accordance with the State Constitution, any applicable State law or regulation or the terms and conditions of the invitation for bids and an award of the contract has been made, the relief shall be as set forth in Section 21-164(b).

(c)

A bidder contesting a determination that the bidder is not a responsible bidder for a particular contract shall proceed under this section and may not protest the award or proposed award under Section 21-164.

(d)

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

(Code 1993, § 22.1-107.1; Code 2004, § 74-188)

(Code 1993, § 22.1-107.1; Code 2004, § 74-188)