Present: All the Justices

PROFESSIONAL BUILDING 

MAINTENANCE CORPORATION

OPINION BY 

v. Record No. 110410 JUSTICE ELIZABETH A. MCCLANAHAN

 April 20, 2012

SCHOOL BOARD OF THE COUNTY

OF SPOTSYLVANIA

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY

David H. Beck, Judge

Professional Building Maintenance Corporation (PBM) 

appeals from the judgment of the circuit court, which sustained 

the demurrer of the School Board of the County of Spotsylvania 

(the School Board) and dismissed PBM's action. For the reasons 

that follow, we will reverse the judgment of the circuit court.

I. Facts and Proceedings Below

PBM, which is in the business of providing janitorial and 

industrial cleaning services, filed an amended complaint 

against the School Board asserting causes of action arising 

under the Virginia Public Procurement Act, Code § 2.2-4300 et 

seq. (the Act).1

 In reviewing the circuit court's order 

 

1 Since the circuit court sustained a demurrer to an 

amended complaint that is complete in itself and does not 

incorporate or refer to the allegations in the prior complaint, 

we consider only the allegations in the amended complaint that 

was the subject of the demurrer sustained by the judgment 

appealed from. Lewis v. Kei, 281 Va. 715, 719, 708 S.E.2d 884, 

888 (2011); McMillion v. Dryvit Sys., Inc., 262 Va. 463, 469, 

552 S.E.2d 364, 367-68 (2001); Yuzefovsky v. St. John's Wood 

Apts., 261 Va. 97, 102, 540 S.E.2d 134, 136 (2001).
2

sustaining a demurrer, we "accept as true all facts properly 

pleaded in the [amended] complaint and all reasonable and fair 

inferences that may be drawn from those facts." Glazebrook v. 

Board of Supervisors, 266 Va. 550, 554, 587 S.E.2d 589, 591 

(2003).

The School Board published a "Best Value Invitation For 

Bid" and addendum (the Invitation) seeking bids for the 

provision of custodial services in various schools located in 

Spotsylvania County.2 The Invitation stated the School Board 

would utilize the "'Best Value' procurement method" to consider 

factors in addition to price "to select the most advantageous 

offer." The specific criteria were: expertise and experience 

relative to the scope of services (50 points); experience of 

personnel assigned to the project (5 points); 

supplies/equipment proposed for general cleaning (5 points); 

quality control program (10 points); and price (30 points). 

Although PBM submitted the lowest bid price among all the 

bidders, the School Board issued a notice of intent to award 

the contract to the bidder who had the highest score according 

 

2 The Invitation is an exhibit to the amended complaint. 

Since accompanying exhibits referred to in the pleadings are 

made part of the pleadings, the Court may examine the exhibits 

in determining whether the amended complaint states a cause of 

action. TC MidAtlantic Dev. v. Commonwealth, 280 Va. 204, 210, 

695 S.E.2d 543, 547 (2010); see also Rule 1:4(i)(mention in 

pleading of accompanying exhibit shall make exhibit part of 

pleading).
3

to the points given for each of the specific criteria. PBM 

sent a letter to the School Board expressing its concern that 

the bid review process was not carried out in a fair and 

objective manner in light of its experience and the fact that 

it submitted the lowest bid. Representatives from PBM and the 

School Board met to discuss PBM's bid. During the meeting, the 

School Board provided PBM with a summary of the points awarded 

to each bidder for the criteria set forth in the Invitation. 

Subsequently, PBM submitted a formal protest, and the parties 

met again to discuss PBM's bid. Thereafter, the School Board 

confirmed, in writing, that PBM would not be awarded the 

contract. Following the School Board's decision, PBM initiated 

these legal proceedings.3

In its amended complaint, PBM asserts the School Board 

violated the Act because it did not award the contract to PBM, 

who was the lowest responsive and responsible bidder. PBM also 

contends the School Board considered criteria that were not 

stated in the Invitation and failed to describe the method for 

awarding points for the bid criteria in violation of the Act. 

Finally, PBM claims the School Board's failure to select PBM as 

 

3 The written correspondence between the parties, including 

PBM's bid protest and the School Board's response, as well as 

the summary of the bidders' scores, are exhibits to the amended 

complaint.
4

the successful bidder was not an honest exercise of discretion, 

but was arbitrary or capricious.

The School Board filed a demurrer to the amended 

complaint, asserting the contract was to be awarded to the best 

value bidder, not the lowest responsible bidder. The School 

Board further asserted the allegations of the amended complaint 

are not sufficient to support the claim of arbitrary or 

capricious actions.

The circuit court sustained the School Board's demurrer 

finding that "Best Value" is a method permitted for public 

bodies and the Invitation "sufficiently meets the requirements 

of law for a 'Best Value' procurement solicitation." The 

circuit court further found the allegations that the School 

Board's actions were arbitrary or capricious "are conclusory 

only and unsupported by allegations of fact and that there are 

no allegations of dishonesty or corrupt actions" on the part of 

the School Board.

II. School Board's Failure to Follow Requirements of Act

PBM asserts the circuit court erred in sustaining the 

demurrer because its amended complaint adequately alleges the 

School Board failed to properly follow the requirements of the 

Act. "A demurrer tests the legal sufficiency of facts alleged 

in pleadings, not the strength of proof." Glazebrook, 266 Va. 

at 554, 587 S.E.2d at 591. "Whether a cause of action is 
5

sufficiently pled is a legal issue which we review de novo." 

TC MidAtlantic Dev., 280 Va. at 210, 695 S.E.2d at 547.

Pursuant to Code § 2.2-4303, which identifies the 

"[m]ethods of procurement" to be used in awarding public 

contracts, the contract was to be awarded after competitive 

sealed bidding. Competitive sealed bidding "is a method of 

contractor selection, other than for professional services." 

Code § 2.2-4301.4 Code § 2.2-4303(A) states that "[a]ll public 

contracts with nongovernmental contractors for the purchase or 

lease of goods, or for the purchase of services, insurance, or 

construction, shall be awarded after competitive sealed 

bidding, or competitive negotiation as provided in this 

section, unless otherwise authorized by law." (Emphasis added.) 

This section enumerates certain contracts that may be awarded 

and purchases that may be made using competitive negotiation or 

other methods of procurement. Code § 2.2-4303(B)-(J). The 

School Board's contract does not fall within any of these 

 

4 Professional services "means work performed by an 

independent contractor within the scope of the practice of 

accounting, actuarial services, architecture, land surveying, 

landscape architecture, law, dentistry, medicine, optometry, 

pharmacy or professional engineering. 'Professional services'

shall also include the services of an economist procured by the 

State Corporation Commission." Code § 2.2-4301. The parties 

agree that custodial services are not professional services as 

defined by the Act.
6

subsections providing for a procurement method other than 

competitive sealed bidding.

The process to be followed by the public body in procuring 

a contract under the competitive sealed bidding process is set 

forth in the Act and consists of the following elements:

1. Issuance of a written Invitation to Bid containing 

or incorporating by reference the specifications and 

contractual terms and conditions applicable to the 

procurement. Unless the public body has provided for 

prequalification of bidders, the Invitation to Bid 

shall include a statement of any requisite 

qualifications of potential contractors. . . .

2. Public notice of the Invitation to Bid at least 10 

days prior to the date set for receipt of bids by 

posting on the Department of General Services' 

central electronic procurement website or other 

appropriate websites. . . .

3. Public opening and announcement of all bids 

received.

4. Evaluation of bids based upon the requirements set 

forth in the invitation, which may include special 

qualifications of potential contractors, life-cycle 

costing, value analysis, and any other criteria such 

as inspection, testing, quality, workmanship, 

delivery, and suitability for a particular purpose, 

which are helpful in determining acceptability.5

 

5 In evaluating the bids under this element, the public 

body "shall determine whether the apparent low bidder is 

responsible." Code § 2.2-4359(A). If the public body 

determines the apparent low bidder is not responsible, it must 

notify the bidder who is permitted to inspect the documents 

related to the determination and submit rebuttal information. 

The public body must issue a written determination of 

responsibility taking into account the rebuttal information. 

Code § 2.2-4359(A)(1)-(3). The School Board did not notify PBM 
7

5. Award to the lowest responsive and responsible 

bidder. . . .6

Code § 2.2-4301 (emphasis added). Therefore, under the plain 

language of the Act, the School Board was required to award the 

contract to the lowest responsive and responsible bidder.

We reject the School Board's position that its utilization 

of best value concepts permitted it to award the contract to 

the best value bidder instead of the lowest responsive and 

responsible bidder.7 Although the Act permits public bodies to 

"consider best value concepts when procuring goods and 

nonprofessional services," Code § 2.2-4300, it does not provide 

the School Board with a method of procurement in lieu of 

competitive sealed bidding. See Code § 2.2-4303(C).8 To accept 

 

that it was determined to be not responsible pursuant to the 

provisions set forth in this section.

6 A responsive bidder is a "person who has submitted a bid 

that conforms in all material respects to the Invitation to 

Bid." Code § 2.2-4301. PBM asserts its bid conformed in all 

material respects to the Invitation and was, therefore, 

responsive. The School Board has not contended otherwise.

7 " 'Best value,' as predetermined in the solicitation, 

means the overall combination of quality, price, and various 

elements of required services that in total are optimal 

relative to a public body's needs." Code § 2.2-4301.

8 The only provision in the Act which expressly permits a 

public body to award the contract to the best value bidder is 

Code § 2.2-4308, which applies to design-build or construction 

management contracts and provides that a fixed price or not-toexceed price design-build or construction management contract 

for public bodies other than the Commonwealth "shall be awarded 

to the fully qualified offeror who submits an acceptable 

proposal determined to be the best value" if the public body 
8

the School Board's position, we would have to add language to 

the fifth element of competitive sealed bidding set forth in 

Code § 2.2-4301 by providing for an award to the best value 

bidder as an alternative to the lowest responsive and 

responsible bidder. We cannot change or amend legislative 

enactments in this manner. See, e.g., Coca-Cola Bottling Co. 

of Roanoke, Inc. v. County of Botetourt, 259 Va. 559, 565, 526 

S.E.2d 746, 750 (2000).

In addition to PBM's claim that the School Board failed to 

award the contract to the lowest responsive and responsible 

bidder, PBM asserts that the School Board's consideration of 

best value criteria did not comply with the Act. For example, 

PBM alleges that at the second meeting between representatives 

from PBM and the School Board, PBM was informed that two 

reasons it was not the successful bidder were PBM's failure to 

address how a transition from its existing janitorial company 

to PBM would be handled and its failure to explain how 

background checks would be undertaken. According to PBM, these 

factors were not included in the Invitation criteria. PBM also 

contends the Invitation did not identify factors that would be 

considered in how points were allocated among the bid criteria 

 

complies with the requirements of this section. Contracts 

awarded pursuant to this section are specifically identified in 

Code § 2.2-4303(D)(4) as exceptions from the required 

competitive sealed bidding method. 
9

or how points would be awarded to bidders. Under the Act, the 

criteria and basis for evaluating bids must be stated in the 

Invitation and the evaluation of the bids must be in accordance 

with such criteria. See Code § 2.2-4300(C) ("The criteria, 

factors, and basis for consideration of best value and the 

process for the consideration of best value shall be as stated 

in the procurement solicitation."); Code § 2.2-4301 (evaluation 

of the bids must be "based upon the requirements set forth in 

the invitation").

In sum, the circuit court erred in finding that PBM does

not adequately allege the School Board failed to properly 

follow the requirements of the Act. Since the Act requires the 

School Board to award the contract to the lowest responsive and 

responsible bidder and to describe the criteria used to 

evaluate the bid in its Invitation, PBM's claims that the 

School Board failed to comply with these requirements 

sufficiently plead a cause of action under the Act. See Code 

§ 2.2-4364(C)(ii)(circuit court may reverse award that is not 

in accordance with law and the terms and conditions of the 

Invitation).

III. School Board's Arbitrary or Capricious Actions

PBM also assigns error to the circuit court's ruling that 

its amended complaint alleges insufficient facts of arbitrary 

or capricious conduct. "We have defined an act as arbitrary 
10

and capricious when it is willful and unreasonable and taken 

without consideration or in disregard of facts or law or 

without determining principle, or when the deciding body 

departed from the appropriate standard in making its decision." 

James v. City of Falls Church, 280 Va. 31, 42, 694 S.E.2d 568, 

574 (2010) (internal quotation marks and citations omitted).

PBM contends that during its first meeting with 

representatives from the School Board, it was informed the only 

reason it was not the successful bidder was because it failed 

to adequately describe the supplies and equipment that would be 

used despite the fact that PBM provided its plan to offer a 

unique program for use of "green seal certified" cleaning 

products and "first class equipment" to promote the health and 

safety of children and employees. During the second meeting, 

the School Board told PBM it was determined to be not 

responsible even though the School Board did not notify PBM of 

this determination or otherwise follow the procedures set forth 

in Code § 2.2-4359(A)(1)-(3).9

 In addition, the School Board 

informed PBM, for the first time, that it failed to adequately 

address its transition plan and how background checks would be 

undertaken, factors that were not included in the criteria set 

forth in the Invitation. During this meeting, the School Board 

 

9 The School Board subsequently retracted its prior 

statement that PBM was not responsible.
11

was unable to articulate the factors considered in how the 

points were allocated or how the points were awarded.

PBM further alleges that the points given to PBM for 

certain criteria specified in the Invitation had no basis in 

fact. Although PBM provided detail regarding its 36 years of 

experience in the janitorial industry, specifically including 

its prior experience in another public school system, it was 

awarded only 26.63 out of 50 points, ranking PBM 8th out of 9 

bidders, and was not told that lack of experience caused it to 

be an unsuccessful bidder. In addition, PBM alleges that 

despite its plan for using "green seal certified" cleaning 

products and "first class equipment," it was awarded only 2 out 

of 5 points for cleaning and supplies.

In sum, PBM alleges the School Board willfully disregarded 

the fact that PBM submitted the lowest bid and failed to either 

award the contract to PBM or determine that it was not 

responsible as required by the Act. PBM alleges that certain 

scores it was given had no basis in fact and did not bear a 

rational relationship with the information provided in its bid. 

It also alleges the School Board was unable to explain how 

points were awarded for each of the criteria and that the 

explanations given by the School Board as to why PBM was not 

the successful bidder departed from the criteria provided in 

the Invitation. These allegations are not merely conclusory 
12

and sufficiently state a cause of action under the Act. Code 

§ 2.2-4364(C)(i)(circuit court may reverse award that is not an 

honest exercise of discretion, but instead is arbitrary or 

capricious).

IV. Conclusion

For the foregoing reasons, we conclude the circuit court 

erred in sustaining the School Board's demurrer to the amended 

complaint. Accordingly, we will reverse the judgment of the 

circuit court and remand for further proceedings consistent 

with this opinion.

Reversed and remanded.

JUSTICE MIMS, concurring.

I concur with the majority that the demurrer of the School 

Board should be overruled. However, I take a different 

analytical path to reach that conclusion.

The majority correctly recites the competitive sealed 

bidding process by which a public body generally must procure 

goods and services. The bedrock principle of that process is 

that the award must be to the lowest responsive and responsible 

bidder. However, in 2000, the General Assembly carved out 

certain contracts that may be awarded using a novel concept 
13

identified as “best value.”1 Yet because this new concept is 

imperfectly grafted into the time-honored statute and its wellunderstood principles of “responsive” and “responsible,” public 

bodies, potential bidders and courts must grapple with what the 

General Assembly intended and how “best value” is to be applied 

in the real world of public contracting.

The statute, by allowing best-value methodology while 

still requiring that the contract be awarded to the lowest 

bidder, is contradictory and ambiguous. In ascertaining the 

statute’s meaning, we therefore may “resort to rules of 

construction, legislative history, and extrinsic evidence.” 

Doss v. Jamco, Inc., 254 Va. 362, 370, 492 S.E.2d 441, 466 

(1997).

I begin, as courts must, with the proposition that the 

General Assembly, in enacting the best-value legislation, 

intended to make a substantive change in the law. See Dale v. 

City of Newport News, 243 Va. 48, 51, 412 S.E.2d 701, 702

(1992) (“there is a presumption that a substantive change in 

law was intended by an amendment to an existing statute”). 

Under the prior law of competitive sealed bidding, the bid with 

 

1 The 2000 amendment states: “ ‘Best value,’ as 

predetermined in the solicitation, means the overall 

combination of quality, price, and various elements of required 

services that in total are optimal relative to a public body’s 

needs.” 2000 Acts ch. 644.
14

the lowest price by a responsive and responsible bidder was 

awarded the contract. See former Code § 11-37 (1999 Repl. 

Vol.). That statute provided, as does the current one, for

“[e]valuation of bids based upon the requirements set forth in 

the invitation, which may include special qualifications of 

potential contractors, life-cycle costing, value analysis, and 

any other criteria such as inspection, testing, quality, 

workmanship, delivery, and suitability for a particular 

purpose, which are helpful in determining acceptability.” Id. 

Thus, the former statute allowed the public body to promulgate 

criteria that would ensure that the lowest bidder met its 

specialized needs.

The amendment to the statute suggests that the legislature 

intended to permit public bodies to go beyond those criteria 

and use a modified competitive sealed bidding process to award 

contracts based upon a variety of bid factors in addition to 

price. But because the best-value concept was imperfectly 

grafted into the statute, a question remains: are those 

unsuccessful bidders in best-value procurements less responsive 

or are they non-responsible?2

 The briefs and argument in this 

case, and the majority opinion, highlight this dilemma.

 

2 A finding of non-responsibility in one procurement may 

have negative consequences for the bidder in subsequent 

procurements.
15

We must read the underlying statute and the 2000 amendment 

as an integrated whole. Alston v. Commonwealth, 274 Va. 759, 

769, 652 S.E.2d 456, 462 (2007) (statutes “should be so 

construed as to harmonize the general tenor or purport of the 

system and make the scheme consistent in all its parts and 

uniform in its operation, unless a different purpose is shown 

plainly or with irresistible clearness”) (quoting Prillaman v. 

Commonwealth, 199 Va. 401, 405, 100 S.E.2d 4, 7 (1957)). In so 

doing, I would hold that the best-value analysis does not 

implicate the responsibility of a bidder, but rather alters the 

traditional responsiveness prong. In other words the “most 

responsive” responsible bidder in a best-value procurement is 

not necessarily the one with the lowest-priced bid. This is 

where I part company with the majority, which holds that the 

plain meaning of the Act, even in a best-value procurement, 

requires the contract to be awarded “to the lowest responsive 

and responsible bidder.” (Emphasis added.) If that is so, the 

best-value amendment is stripped of any substantive meaning.

I must conclude that a best-value procurement is 

fundamentally inconsistent with traditional procurement 

principles relying solely on an objective “lowest responsive” 
16

bidder determination. That appears to be what the General 

Assembly intended.3

I concur with the conclusion of the majority that the 

School Board’s actions as alleged in the complaint were 

arbitrary and capricious and did not comply with the distinct 

best-value statutory mandate. Because the best-value concept 

decouples the decision to award from the determination of the 

lowest-priced responsive bid by a responsible bidder – an 

easily determined, objective two-step determination – the 

statute includes certain protections to guard against excessive 

subjectivity: “The criteria, factors, and basis for 

consideration of best value and the process for the 

 

3 While not authoritative, it is worth noting that the 

Department of Planning & Budget, in its Fiscal Impact Statement 

to a subsequent proposed amendment to the VPPA, described bestvalue as 

“permit[ting] public bodies to rely on factors 

other than price when procuring goods and 

nonprofessional services. By relying upon these 

other factors when making their procurement 

decisions, public bodies have the flexibility to 

purchase the product that best suits their 

needs, rather than the cheapest product that 

meets their needs. Ultimately, such choices 

should improve the quality of government 

purchases and reduce these purchases’ lifetime 

costs.”

Department of Planning and Budget, 2001 Impact Statement for HB 

1931, available at http://leg1.state.va.us/cgibin/legp504.exe?011+oth+HB1931F122+PDF (last visited April 9, 

2012) (emphasis added).
17

consideration of best value shall be as stated in the 

procurement solicitation.” Code § 2.2-4300(C).

Professional Building Maintenance Corporation’s Complaint 

sufficiently alleges an arbitrary and capricious process and 

non-compliance with this statutory requirement. For both of 

these reasons, the Complaint is sufficient and the demurrer 

should be overruled.