Sabre Construction Corp. v. County of Fairfax

Present: All the Justices

SABRE CONSTRUCTION CORPORATION

v. Record No. 971895 OPINION BY JUSTICE ELIZABETH B. LACY
June 5, 1998
COUNTY OF FAIRFAX

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge

In this appeal, we consider whether the trial court

correctly held that Code §§ 11-66 and –70 of the Public

Procurement Act, Code §§ 11-35 through -80, require that a

bidder who seeks to challenge a public body's determination

that its bid was non-responsive institute legal action

protesting the bid award within ten days after the public

body's written decision on the bidder's protest.

On February 20, 1997, the County of Fairfax (the County)

received bids for the construction of Phase II of the Fairfax

County Public Safety Facility. Sabre Construction Corporation

(Sabre) submitted a timely bid. On February 27, 1997, the

County notified Sabre by letter that its bid was "determined

to be non-responsive" because Sabre had failed to bid on

"Alternate No. 5." In the same letter, the County informed

Sabre that it would recommend awarding the contract to another

bidder, the V.F. Pavone Construction Company (Pavone), and

that its decision would be final unless Sabre filed a protest

within ten days of receiving the letter. After seeking
clarification from the County regarding the appropriate

procedures, 1 Sabre filed a protest with the County on March 7,

arguing that the omission of Alternate No. 5 from its bid was

"de minimus" and should not constitute grounds for a finding

of non-responsiveness. Sabre further argued that if the

County added the amount of Pavone's bid on Alternate No. 5 to

Sabre's bid, Sabre's bid would be the lowest, and Sabre

should, therefore, be awarded the contract. On March 13, the

County issued its written decision denying Sabre's protest.

On March 12, one day before the County denied Sabre's

protest, Sabre filed the instant action. In its motion for

judgment, Sabre sought a determination that it was the low

bidder, that its bid was responsive, and that the County's

decision to award the contract to Pavone was arbitrary and

capricious.

The County filed a motion to dismiss arguing that under

§ 11-66, the County's decision on a protest is final unless

the bidder appeals or files legal action "within ten days of

the written decision." Since Sabre filed its legal action

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The "Information for Bidders" packet provided by the
County to potential bidders contained directions for
protesting and appealing from actions taken by the County in
the bid award process. The County's directions were not
identical to the statutory provisions in all respects.
However, these directions do not supersede the statutory
provisions at issue here because they were not part of a

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before the County issued its written decision on the protest,

Sabre did not comply with the provisions of § 11-66 and,

therefore, the court could not entertain Sabre's motion for

judgment. The trial court agreed and dismissed the case with

prejudice.

On appeal, Sabre asserts that the trial court erred

because 1) Sabre complied with the filing requirements of

§ 11-66, 2) any failure to comply with the filing requirements

of § 11-66 was "procedural only" and should not defeat Sabre's

claim, and 3) Sabre's motion for judgment was properly filed

under § 11-70(A). We consider these assertions in order.

I.

Section 11-66 creates the procedure for protesting a

public body's decision to award a contract. Under that

section, a disappointed bidder must first protest the award or

decision to award "in writing to the public body . . . no

later than ten days after the award or announcement of the

decision to award." The public body must respond in writing

to the protest within ten days. The decision of the public

body "shall be final unless the bidder or offeror appeals

within ten days of the written decision by invoking

administrative procedures meeting the standards of § 11-71, if

county ordinance or resolution adopting competitive
procurement principles pursuant to § 11-35(D).

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available, 2 or in the alternative by instituting legal action

as provided in § 11-70." § 11-66(A). Subsection (C) of § 11-

70 describes the procedure for filing an action in circuit

court when the public body denies a bidder's protest of the

award of a contract or proposed award of a contract.

In the instant case, Sabre instituted its legal action

before the County issued its written decision on Sabre's

protest. Nevertheless, Sabre claims that it complied with the

§ 11-66 requirement that it institute legal action "within ten

days" of the County's written decision on its protest. To

reach this conclusion, Sabre interprets the phrase "within 10

days" as allowing an unsuccessful bidder to institute an

action up to ten days before the public body releases its

written response to a protest, as well as up to ten days after

the decision. This interpretation, however, cannot stand when

the phrase is read in the context of the entire provision.

Section 11-66 provides that the public body's written

decision is final unless a bidder "appeals" within ten days.

By describing the alternatives available to the protesting

bidder as "appeals," the General Assembly made it clear that

the purpose of the action is to review the public body's

2
The County did not create an administrative appeal
pursuant to § 11-71.

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written decision regarding the bidder's protest. 3 If, as Sabre

contends, the legal action could be filed prior to the release

of the written decision, then the bidder would be "appealing"

a decision which has not yet been issued. We conclude,

therefore, that the phrase "within ten days" does not allow an

"appeal" pursuant to § 11-66 to be filed prior to the public

body's release of its written decision.

II.

Sabre next argues that even if it failed to comply with

the filing requirements of § 11-66, its failure was

"procedural only" and, under the rationale of Morrison v.

Bestler, 239 Va. 166, 387 S.E.2d 753 (1990), did not require

the trial court to dismiss the motion for judgment with

prejudice. Sabre's reliance on Morrison is misplaced.

The Public Procurement Act not only creates the

substantive right to file an action against a county, but also

imposes a special limitation on that right, namely appealing

the written decision of the public body within ten days. When

a special limitation is part of the statute creating the

substantive right, the limitation is not merely a procedural

requirement, but a part of the newly created substantive cause

3
The statute does not use the word "appeal" in its
technical sense, such as an "appeal" of an administrative
agency ruling pursuant to § 17-116.05(1). See Allstar Towing,

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of action. Barksdale v. H.O. Engen, Inc., 218 Va. 496, 498-

99, 237 S.E.2d 794, 796 (1977). The special limitation is a

condition precedent to maintaining the claim and failure to

comply with it bars the claim. Id.

Morrison did not involve the application of procedural

requirements which were part of a substantive cause of action.

The cause of action in Morrison was a common law tort based on

medical malpractice. The procedural requirements at issue

were part of a statute addressing procedures for pursuing

medical malpractice claims, Code § 8.01-581.2. Thus, these

procedural requirements were not special limitations and the

principles applied in Morrison are not relevant to the issue

in this case.

III.

Finally, Sabre argues that it had "a second, independent

remedy" under Subsection (A) of § 11-70. That subsection

provides, in relevant part, that

[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 appropriate circuit court challenging
that decision . . . .

Inc. v. City of Alexandria, 231 Va. 421, 423-24, 344 S.E.2d
903, 905 (1986).

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 Sabre argues that when the County found its bid to be

non-responsive, Sabre was effectively "disqualified from

participation" in the bidding process. The trial court

concluded, however, that in finding Sabre's bid to be non-

responsive, "the County did not refuse or disqualify Sabre

from participating in bidding." We agree.

Section 11-70(A) is limited to challenges of public body

decisions which "disqualified" a bidder or offeror from

participating in the process in any manner. It applies to

decisions which exclude the bidder from the process, not to

decisions which exclude a particular bid. Were we to

interpret the word "disqualified" to encompass rejection of

defective bids, we would be ignoring the phrase "participation

in bidding" and would be creating a right of action against

public bodies broader than that anticipated by the General

Assembly. The Public Procurement Act constitutes a waiver of

public bodies' sovereign immunity, is in derogation of the

common law, and, therefore, must be strictly construed.

Halberstam v. Commonwealth, 251 Va. 248, 250-51, 467 S.E.2d

783, 784 (1996); Botetourt County v. Burger, 86 Va. 530, 533

(1889). Consequently, we conclude that § 11-70(A) does not

provide a bidder with a remedy independent of the one created

by Code §§ 11-66 and –70(C) to challenge a public body's

finding that a bid was non-responsive.

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 For the above reasons, we will affirm the judgment of the

trial court.

Affirmed.

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