2006 Code of Virginia § 2.2-4335 - Public construction contract provisions barring damages for unreasonable delays declared voi...

2.2-4335. Public construction contract provisions barring damages forunreasonable delays declared void.

A. Any provision contained in any public construction contract that purportsto waive, release, or extinguish the rights of a contractor to recover costsor damages for unreasonable delay in performing such contract, either on hisbehalf or on behalf of his subcontractor if and to the extent the delay iscaused by acts or omissions of the public body, its agents or employees anddue to causes within their control shall be void and unenforceable as againstpublic policy.

B. Subsection A shall not be construed to render void any provision of apublic construction contract that:

1. Allows a public body to recover that portion of delay costs caused by theacts or omissions of the contractor, or its subcontractors, agents oremployees;

2. Requires notice of any delay by the party claiming the delay;

3. Provides for liquidated damages for delay; or

4. Provides for arbitration or any other procedure designed to settlecontract disputes.

C. A contractor making a claim against a public body for costs or damages dueto the alleged delaying of the contractor in the performance of its workunder any public construction contract shall be liable to the public body andshall pay it for a percentage of all costs incurred by the public body ininvestigating, analyzing, negotiating, litigating and arbitrating the claim,which percentage shall be equal to the percentage of the contractor's totaldelay claim that is determined through litigation or arbitration to be falseor to have no basis in law or in fact.

D. A public body denying a contractor's claim for costs or damages due to thealleged delaying of the contractor in the performance of work under anypublic construction contract shall be liable to and shall pay such contractora percentage of all costs incurred by the contractor to investigate, analyze,negotiate, litigate and arbitrate the claim. The percentage paid by thepublic body shall be equal to the percentage of the contractor's total delayclaim for which the public body's denial is determined through litigation orarbitration to have been made in bad faith.

(1991, c. 701, 11-56.2; 2001, cc. 324, 844.)