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    Sec. 18.1-5. Alternative Policies on Determination of Non-Responsibility in Lieu of Va. Code S 2.2-4359 and Portions of Va. Code S 2.2-4360, 4364, and 4365.

    Sec. 18.1-5. Alternative policies on determination of non-responsibility in lieu of Va. Code § 2.2-4359 and portions of Va. code §§ 2.2-4360, 4364, and 4365.

    The following contains the exclusive procedures a bidder may use to protest a determination by the city that the bidder is not responsible:
    (a) Following the public opening and announcement of bids received on an Invitation to bid, the city shall evaluate the bids in accordance with element 4 of the definition of "competitive sealed bidding" in Va. Code § 2.2-4301. Following bid opening, the city also shall determine whether the apparent low bidder is responsible. If the city so determines, then it may proceed with an award in accordance with element 5 of the definition of "competitive sealed bidding" in § 2.2-4301. If the city determines that the apparent low bidder is not responsible, it shall proceed as follows:
    (1) The city first shall (i) notify the apparent low bidder in writing of its determination, (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 (5) business days after receipt of the notice.
    (2) Within ten (10) business days after receipt of the notice, the bidder may submit rebuttal information challenging the city’s determination. If bidder fails to submit rebuttal information to the city within ten (10) business days after receipt of the notice, the city may make its final determination without considering rebuttal information. Unless the city and bidder agree otherwise, within fifteen (15) days after the city has provided the notice to bidder, the city shall issue its final written determination of responsibility based on all information in the city’s possession, including any rebuttal information timely received from the bidder. At the same time, the city shall notify, with return receipt requested, the bidder in writing of its final determination.
    (3) Notice of the city's final determination shall state the basis for the determination, which shall be final and conclusive unless the bidder appeals the decision within ten (10) days after receipt of the notice by instituting legal action in Lynchburg circuit court, Lynchburg, Virginia, and by serving the city with the action within that time.
    (4) Notwithstanding the existence of information from which the city could determine the bidder not to be responsible, the bidder may offer the city additional assurances of responsible performance if it were to be awarded the contract, either pending the city's final written determination of whether bidder is responsible or during pendency of any appeal of a final determination of the bidder's non-responsibility, which the city, in its sole discretion, may consider and accept as curing the city's concerns with bidder's apparent non-responsibility.
    (b) The provisions of this Sec. 18.1-5 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.
    (c) If, upon appeal pursuant to Sec. 18.1-5 (a) 3., it is determined that the final determination of non-responsibility by the city was not (i) an honest exercise of discretion, but rather was arbitrary or capricious or (ii) in accordance with applicable state law, regulation, or the terms or conditions of the invitation to bid, the sole relief shall be a finding that the bidder is a responsible bidder for the contract in question.
    (d) 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 Sec. 18.1-6.
    (e) No bidder shall have the right to challenge the responsibility of another bidder.
    (f) 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 selected. (Ord. of 12-13-05, Ord. No. O-05-161)
    Last updated date: 10/23/2006 4:15:21 PM