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In the administration of public contracts, there may be more
than one relevant statutory section setting forth requirements
for perfecting an appeal. In the case of Viking Enterprise,
Inc. v. County of Chesterfield, 277 Va. 104 (2009), the Virginia
Supreme Court addressed one such situation, affirming
the dismissal of a contractor’s appeal of a county’s disallowance
of a monetary claim for failure to adhere to all procedural
requirements set forth in the Virginia Code.
In Viking Enterprise, Inc., Viking Enterprise, Inc.
(“Viking”), the general contractor, entered into a contract
with the County of Chesterfield (the “County”) for the construction
of a fire station. The contract was governed by the
Virginia Public Procurement Act, Va. Code §§ 2.2-4300 et
seq. During the course of the project, the County directed
Viking to remove and replace a portion of the concrete floor
of the fire station. Viking disputed the necessity of this
work, arguing that the issue with the floor could be repaired
without re-pouring concrete. Accordingly, Viking submitted
a claim to the County in the amount of $86,531.00 for the
work performed in completing the work directed by the
County. By letter dated August 2, 2005, the County denied
Viking’s claim.
On January 27, 2006, Viking filed a complaint in the Circuit
Court of Chesterfield County, seeking a judgment against
the County for the additional concrete work performed by
Viking. The County responded by filing a demurrer and
motion to dismiss, arguing that Viking had failed to comply
with Va. Code § 15.2-1246 requiring that a claimant seeking
to appeal a decision of a county disallowing a claim must
serve written notice on the clerk of the county within thirty
(30) days of learning of the decision and must post a bond to
the county. Viking did not dispute the County’s contentions;
rather, Viking argued that, pursuant to the Virginia Public
Procurement Act, the only requirement for instituting legal
action on contracts governed by this statute was to file the
complaint in an appropriate court within six (6) months of a
decision from a public body, such as the County’s decision
of August 2, 2005. Viking, thus, reasoned that a conflict
existed between the two sections of the Virginia Code and
that, by filing suit within six (6) months of the County’s
decision and complying with the Virginia Public Procurement
Act, its appeal should be heard.
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The Circuit Court of Chesterfield County rejected Viking’s
logic, concluding that a conflict did not exist between the two
procedural requirements and that Viking should have complied
with both sections of the statute. As Viking only complied
with the requirements of the Virginia Public Procurement
Act, and not § 15.2-1246, the circuit court determined
that it lacked jurisdiction to hear Viking’s claims and, therefore,
dismissed the case.
On appeal, the Virginia Supreme Court affirmed the circuit
court’s decision, holding that “when appealing from a
county’s disallowance of a claim arising out of a contract
covered by the Procurement Act, the claimant must serve
written notice…and execute a bond…in accordance with
Code § 15.2-1246…[and] then institute legal action…in accordance
with Code §§ 2.2-4363(E) and -4364(E).” In other
words, each statutory section imposed filing requirements for
perfecting the appeal and Viking’s failure precluded the pursuit
of its claim.
The lesson to be learned from Viking Enterprise, Inc. is that
Virginia courts will strictly construe procedural provisions of
the Virginia Code related to appealing a county’s decision to
disallow a claim arising out of a contract covered by the Virginia
Public Procurement Act and that failure to perfect one’s
claim in accordance with all statutory requirements can result
in the loss of the claim.
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