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SABRE CONSTRUCTION CORPORATION v. COUNTY OF FAIRFAX


SABRE CONSTRUCTION
CORPORATION

v.

COUNTY OF FAIRFAX


June 5, 1998

Record No. 971895

SABRE CONSTRUCTION CORPORATION

v.

COUNTY OF FAIRFAX

OPINION BY JUSTICE ELIZABETH B. LACY

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

F. Bruce Bach, Judge

Present: All the Justices


In this appeal, we consider whether the trial court correctly
held that Code Sec. 11-66 and –70 of the Public
Procurement Act, Code Sec. 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
Sec. 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 before
the County issued its written decision on the protest, Sabre did
not comply with the provisions of Sec. 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 Sec. 11-66, 2)
any failure to comply with the filing requirements of
Sec. 11-66 was "procedural only" and should not
defeat Sabre’s claim, and 3) Sabre’s motion for judgment was
properly filed under Sec. 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 Sec. 11-71, if available, [2] or in the alternative by
instituting legal action as provided in Sec. 11-70."
Sec. 11-66(A). Subsection (C) of Sec. 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
Sec. 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 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
Sec. 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 Sec. 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 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 Sec. 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 Sec. 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
. . . .

 

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
Sec. 11-70(A) does not provide a bidder with a remedy
independent of the one created by Code Sec. 11-66 and
–70(C) to challenge a public body’ finding that a bid was
non-responsive.

For the above reasons, we will affirm the judgment of the
trial court.

Affirmed.

 

FOOTNOTES:

[1] 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 county ordinance or resolution adopting competitive procurement
principles pursuant to Sec. 11-35(D).

[2] The County did not create an
administrative appeal pursuant to Sec. 11-71.

[3] The statute does not use the
word "appeal" in its technical sense, such as an
"appeal" of an administrative agency ruling pursuant to
Sec. 17-116.05(1). See Allstar Towing, Inc. v. City
of Alexandria
, 231 Va. 421, 423-24, 344 S.E.2d 903, 905
(1986).

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