Sec. 2-576. - Ineligibility of bidder, offeror or contractor.

(a)

Any bidder, offeror or contractor, other than one (1) who has been debarred pursuant to Division 4 of this article, refused permission to, or disqualified from participating in public contracts shall be notified in writing. Such notice shall state the reasons for the action taken. This decision shall be final unless the bidder, offeror or contractor appeals within thirty (30) days of receipt thereof by invoking the administrative appeal procedure established by the director of purchasing, if any, or in the alternative by instituting legal action as provided in section 2-577.1 of this division.

(b)

If, upon appeal, it is determined that the action taken was arbitrary or capricious, or not in accordance with the Constitution of Virginia, statutes or regulations, the sole relief shall be restoration of eligibility.

(Ord. No. 3910-89; Ord. No. 5999-04)

Sec. 2-576.1. - Appeal of denial or withdrawal of bid.

(a)

A decision denying withdrawal of bid under the provisions of section 2-561.4 shall be final and conclusive unless the bidder appeals the decision within ten (10) days after receipt of the decision by invoking the administrative procedures established by the director of purchasing, if any, or in the alternative by instituting legal action as provided in section 2-577.1 of this division.

(b)

If no bid bond was posted, a bidder refused withdrawal of a bid under the provisions of section 2-561.4 prior to appealing shall deliver to the director of purchasing a certified check or cash bond in the amount of the difference between the bid sought to be withdrawn and the next lowest bid. Such security shall be released only upon a final determination that the bidder was entitled to withdraw the bid.

(c)

If, upon appeal, it is determined that the decision refusing withdrawal of the bid was arbitrary or capricious, the sole relief shall be withdrawal of the bid.

(Ord. No. 3910-89; Ord. No. 5999-04)

Sec. 2-576.2. - Determination of nonres-

ponsibility.

(a)

Following public opening and announcement of bids received on an invitation to bid, the director of purchasing shall evaluate the bids. At the same time the director of purchasing shall determine whether the apparent low bidder is responsible. If the director of purchasing so determines, then he may proceed with an award in accordance with the provisions of section 2-563. If the director of purchasing determines that the apparent low bidder is not responsible, he shall proceed as follows:

(1)

Prior to the issuance of a written determination of nonresponsibility, the director of purchasing 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 which 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 evaluation. The director of purchasing shall issue his written determination of responsibility based on all information in his possession, including any rebuttal information, within five (5) business days of the date he received such rebuttal information. At the same time, the director of purchasing shall notify the bidder in writing of his determination.

(3)

Such notice shall state the basis for the determination, which shall be final unless the bidder appeals the decision within ten (10) days by invoking the administrative procedures as provided in section 2-577.2, or in the alternative by instituting legal action as provided in section 2-577.1

(4)

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 section 2-577.1 or section 2-577.2, it is determined that the decision of the director of purchasing was arbitrary or capricious, 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. If it is determined that the decision of the director of purchasing was arbitrary or capricious, the relief shall be as set forth in section 2-576.3(b).

(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 section 2-576.3 of this division.

(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.

(Ord. No. 3910-89; Ord. No. 5046-97, § 1; Ord. No. 5999-04)

Sec. 2-576.3. - Protest of award or decision to award.

(a)

Any bidder or offeror may protest the award or decision to award a contract by submitting such protest in writing to the director of purchasing no later than ten (10) days after the award or the announcement of the decision to award, whichever occurs first. No protest shall lie for a claim that the selected bidder or offeror is not a responsible bidder or offeror. The written protest shall include the basis for the protest and the relief sought. The director of purchasing shall issue a decision in writing within ten (10) days stating the reasons for the action taken. This decision shall be final unless the bidder or offeror appeals within ten (10) days of the written decision by invoking the administrative procedures established by the director of purchasing, if any, or in the alternative by instituting legal action as provided in section 2-577.1 of this division.

(b)

If prior to an award it is determined that the decision to award is arbitrary or capricious, then the sole relief shall be a finding to that effect. The awarding authority (city council or director of purchasing) shall cancel the proposed award or revise it to comply with the law. If, after an award, it is determined that an award of a contract was arbitrary or capricious, then the sole relief shall be as hereinafter provided. Where the award has been made but performance has not begun, the performance of the contract may be enjoined. Where the award has been made and performance has begun, the awarding authority (city council or director of purchasing) may declare the contract void upon a finding that this action is in the best interest of the public. Where a contract is declared void, the performing contractor shall be compensated for the cost of performance up to the time of such declaration. In no event shall the performing contractor be entitled to lost profits. A decision to award shall be deemed to be arbitrary and capricious if it is not in accordance with the Constitution of Virginia, applicable law or regulation, or the terms and conditions of the invitation to bid or request for proposal. Nothing in this subsection shall be construed to permit a bidder to challenge the validity of the terms and conditions of the invitation to bid or request for proposal.

(c)

Where the awarding authority (city council or director of purchasing) determines, after a hearing held by it, or its designee, following reasonable notice to all bidders, that there is probable cause to believe that a decision to award was based on fraud or corruption or on an act in violation of the ethics in public contracting as set forth in Division 6 of this article, the city council or the director of purchasing, as the case may be, shall not award the contract to the offending bidder.

(Ord. No. 3910-89; Ord. No. 5046-97, § 1; Ord. No. 5149-98; Ord. No. 5999-04)

Sec. 2-576.4. - Effect of appeal upon contract.

Pending final determination of a protest or appeal, the validity of a contract awarded and accepted in good faith in accordance with this chapter shall not be affected by the fact that a protest or appeal has been filed.

(Ord. No. 3910-89)

Sec. 2-576.5. - Stay of award during protest.

An award need not be delayed for the period allowed a bidder or offeror to protest, but in the event of a timely protest, as provided in section 2-576.3, or the filing of a timely legal action as provided in section 2-577.1, no further action to award the contract shall be taken unless there is a written determination by the director of purchasing that proceeding without delay is necessary to protect the public interest or unless the bid or offer would expire.

(Ord. No. 3910-89; Ord. No. 5046-97, § 1; Ord. No. 5999-04)

Sec. 2-577. - Contractual disputes.

(a)

Contractual claims, whether for money or other relief, shall be submitted in writing no later than sixty (60) days after final payment; however, written notice of the contractor's intention to file such claim shall have been given at the time of the occurrence or beginning of the work upon which the claim is based. Nothing herein shall preclude a contract from requiring submission of an invoice for final payment within a certain time after completion and acceptance of the work or acceptance of the goods. Pendency of claims shall not delay payment of amounts agreed due in the final payment.

(b)

A procedure for consideration of contractual claims may be included in each contract. Such procedure, which may be incorporated into the contract by reference, shall establish a time limit for a final decision in writing by the director of purchasing.

(c)

A contractor may not invoke the administrative procedures established by the director of purchasing, if any, or institute legal action as provided in section 2-577.1 of this division, prior to receipt of the decision on the claim, unless the director of purchasing fails to render such decision within the time specified in the contract.

(d)

The decision of the director of purchasing shall be final and conclusive unless the contractor appeals within six (6) months of the date of the final decision on the claim by the director of purchasing by invoking the administrative procedures established by the director of purchasing, if any, or in the alternative by instituting legal action as provided in section 2-577.1 of this division.

(Ord. No. 3910-89; Ord. No. 5999-04)

Sec. 2-577.1. - Legal actions.

(a)

A bidder or offeror, actual or prospective, who is refused permission or disqualified from participation in bidding or competitive negotiation, or who is determined not to be a responsible bidder or offeror for a particular contract, may bring an action in the circuit court for the City of Newport News challenging that decision, which shall be reversed only if the petitioner establishes that the decision was arbitrary or capricious, or, in the case of denial of prequalification, that the decision to deny prequalification was not based upon the criteria for denial of prequalification as set forth in subsection 2-560(b).

(b)

A bidder denied withdrawal of a bid under section 2-576.1 of this Code may bring an action in the circuit court for the City of Newport News challenging that decision, which shall be reversed only if the bidder establishes that the decision was clearly erroneous.

(c)

A bidder, offeror or contractor may bring an action in the circuit court for the City of Newport News challenging a proposed award or the award of a contract, which shall be reversed only if the petitioner establishes that the proposed award or the award is not an honest exercise of discretion, but rather is arbitrary or capricious or not in accordance with the Constitution of Virginia, applicable law or regulation, or the terms and conditions of the invitation to bid or request for proposal. In the event the apparent low bidder, having been previously determined by the director of purchasing to be not responsible, is found by the court to be responsible, the court may direct the award of the contract to such bidder in accordance with the requirements of this section and the invitation to bid or request for proposal. The provisions of subsection 2-576.3(b) shall apply to any such award.

(d)

If injunctive relief is granted, the court, upon request of the city, shall require the posting of reasonable security to protect the city.

(e)

A contractor shall bring an action involving a contract dispute with the city in the circuit court for the City of Newport News.

(f)

A bidder, offeror or contractor need not utilize the administrative procedures of section 2-577.2 of this Code; but if those procedures are invoked by the bidder, offeror or contractor, the procedures shall be exhausted prior to instituting legal action concerning the same procurement transaction unless the city agrees otherwise.

(g)

Nothing herein shall be construed to prevent the city from instituting legal action against a contractor.

(Ord. No. 3910-89; Ord. No. 4967-96, § 1; Ord. No. 5046-97, § 1; Ord. No. 5999-04)

Sec. 2-577.2. - Administrative appeals procedure.

(a)

The director of purchasing shall establish an administrative procedure for hearing protests of a decision to award or an award, appeals from refusals to allow withdrawal of bids, appeals from disqualifications and determinations of nonresponsibility, actions of debarment or suspension, and appeals from decisions on disputes arising during the performance of a contract, or any of these. Such administrative procedure shall provide for a hearing before a disinterested person or panel, the opportunity to present pertinent information and the issuance of a written decision containing findings of fact. The disinterested person shall not be an employee of the city and no member of the panel shall be an employee of the city. The findings of fact shall be final and conclusive and shall not be set aside unless the same are fraudulent, arbitrary or capricious, so grossly erroneous as to imply bad faith, or in the case of denial of prequalification, such findings were not based upon the criteria for denial of prequalification as set forth in subsection 2-560(b). No determination on an issue of law shall be final if appropriate legal action is instituted in a timely manner.

(b)

Any party to the administrative procedure, including the city, shall be entitled to institute judicial review if such action is brought within thirty (30) days of receipt of the written decision.

(Ord. No. 3910-89; Ord. No. 4967-96, § 1; Ord. No. 5476-00, § 1; Ord. No. 5999-04)

Secs. 2-578, 2-579. - Reserved.