By Neil Lowenstein
With increasing regularity, various procuring agencies had been swimming in the "best value" pool for their procurements. Following the well established federal procurement practice, their solicitations included language along the lines that the procuring agency reserved the right to select "the most advantageous offer" considering such factors as experience, schedule and/or price. Such was the case for a Spotsylvania School Board procurement for janitorial services, respecting which the School Board did not make award to the lowest bidder, but instead made award to the bidder it deemed the most advantageous overall. The low bidder protested, and its protest basis was recently sustained by the Virginia Supreme Court in Professional Building Maintenance Corp. v. School Board of the County of Spotsylvania [enhanced version available to lexis.com subscribers], in the court's April 20, 2012 decision. In doing so the court noted that Virginia's public procurement act required award to the lowest responsive and responsible bidder for competitive sealed bidding. While the act does allow for competitive negotiation for certain procurements, the court noted this procurement did not qualify. The court rejected the School Board's contention that best value concepts could be utilized for competitive bids, noting that while the act does permit public bodies to "consider best value concepts when procuring goods and nonprofessional services" in Code Section 2.2-4300, the act does not provide a method of procurement in lieu of competitive sealed bidding. Therefore the court concluded that to accept the School Board's argument it would need to add language to the competitive sealed bidding code provisions as an alternative to the lowest responsive and responsible bidder, which the court concluded it was not allowed to do under prior case precedent. The court noted other concerns with the School Board's procurement too, including whether the School Board actually followed the stated terms and conditions of the invitation in process or actual evaluation; all of which resulted in the appeal being allowed to proceed to trial. There are not many procurement cases decided by the Virginia Supreme Court, and this decision is insightful on many fronts to both those soliciting and those responding to Virginia procurements. Interestingly, the court did not address any potential tie-in between "best value" and "responsibility" and whether that becomes the next battleground on this issue, or whether public bodies abandon "best value" evaluations for competitive bids remains to be seen.
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