All the Justices
SABRE CONSTRUCTION CORPORATION
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) submitted a timely bid.
Sabre Construction Corporation
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.
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
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
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
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
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
The trial court agreed and dismissed the case with
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.
Section 11-66 creates the procedure for protesting a
public body's decision to award a contract.
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).
available, 2 or in the alternative by instituting legal action
as provided in § 11-70."
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
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.
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
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
The County did not create an administrative appeal
pursuant to § 11-71.
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.
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.
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
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.
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
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,
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.
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
The procedural requirements at issue
were part of a statute addressing procedures for pursuing
medical malpractice claims, Code § 8.01-581.2.
procedural requirements were not special limitations and the
principles applied in Morrison are not relevant to the issue
in this case.
Finally, Sabre argues that it had "a second, independent
remedy" under Subsection (A) of § 11-70.
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).
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 nonresponsive, "the County did not refuse or disqualify Sabre
from participating in bidding."
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
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
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.
For the above reasons, we will affirm the judgment of the