Present: All the Justices 

HOLLY'S, INC. OPINION BY 

v. Record No. 941572 CHIEF JUSTICE HARRY L. CARRICO 

 June 9, 1995 

COUNTY OF GREENSVILLE 

FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY 

Robert G. O'Hara, Jr., Judge 

 This litigation commenced with the filing of a bill of 

complaint by Holly's, Inc. (Holly's) against the County of 

Greensville (the County). The dispute involves certain provisions 

of the Virginia Public Procurement Act, Code §§ 11-35 through -80 

(the Act). Section 11-42(B) provides that "[a] public body may 

waive informalities in bids," and the primary question on appeal 

is whether this provision permits a public body to waive a 

requirement concerning the timeliness of bids. 

 The facts germane to the issues in the case were stipulated 

by the parties. As pertinent here, the stipulated facts reveal 

the following situation: 

 5. The bid invitation stated in part as follows: 

 "On Thursday, March 17, 1994, at 2:00 p.m. all 

bids received for provision of residential 

solid waste collection in Greensville County 

will be opened." 

 . . . . 

 8. On March 17, 1994, Holly's submitted its bid at 

1:34 p.m. and had the same stamped and time-dated by the 

County . . . . [Browning-Ferris Industries of S. 

Atlantic, Inc. (BFI)] had also submitted its sealed bid 

to a County official prior to 2:00 p.m. that day. 

 9. At 1:50 p.m. a representative from [ARS-Waste 

Management, Ltd. (ARS)] was present in the room where 

the bid opening was to be conducted and had with him the 

sealed bid of ARS. 

 10. Mr. Fred Maldonado, the County employee in 
charge of the bid opening process, was not in the 

designated room at the time the ARS representative 

arrived, and did not arrive in the designated room until 

either 2:02 p.m. or 2:03 p.m. 

 11. Between 1:50 p.m. and Mr. Maldonado's arrival 

in the designated bid-opening room . . ., the 

representative of Holly's, the representative of BFI, 

the representative of ARS and the bid of ARS were 

continually present together in the designated bidopening room, and throughout that time Mr. Maldonado was 

apart from them and continually had in his possession 

the sealed bids of both BFI and Holly's. 

 12. When Mr. Maldonado entered the designated bidopening room, the bid of ARS was either lying upon the 

table to be utilized by Mr. Maldonado (which is the 

recollection of the ARS representative and of Mr. 

Maldonado), or instead the ARS representative handed its 

bid to Mr. Maldonado (which is the recollection of the 

representative of Holly's and the representative of 

BFI). 

 13. Upon opening the bids ARS was the apparent low 

bidder . . ., and Holly's was the next lowest bidder 

 . . . 

 . . . . 

 15. A regularly scheduled meeting of the 

Greensville County Board of Supervisors was scheduled 

for Monday, March 21, 1994, beginning at 7:30 p.m., and 

an agenda item for that evening was the review of all 

bids received on March 17 and an award of the contract. 

 16. Prior to 5:00 p.m. on March 21, [the attorney 

for Holly's] communicated Holly's protest of the bid of 

ARS in two separate letters which were sent that day by 

telefax, one to Mr. Maldonado and the other to the 

County Attorney. 

 17. At their meeting Monday evening, March 21, the 

County accepted the bid of ARS and awarded the contract 

to it. 

 18. As requested by [the attorney for Holly's], 

the County Attorney left the Supervisors' meeting as 

soon as that action was taken by the Board of 

Supervisors . . . and called [the attorney for Holly's] 

at his home to advise that the Board had given 

consideration to the matters raised in his two letters 

sent by telefax earlier that day, and thereafter taken 

action awarding the contract to ARS. 
 19. On March 23, 1994, the County's authorized and 

designated representative afforded Holly's written 

notice of County's decision to award the contract to the 

low bidder, ARS. 

 On May 13, 1994, Holly's filed its bill of complaint alleging 

that the County's award of the contract to ARS did not constitute 

an honest exercise of discretion but was arbitrary and capricious 

and not in accordance with the Act, the County purchasing 

procedures, or the terms and conditions of the invitation to bid. 

 Holly's sought a permanent injunction against award of the 

contract to ARS and also sought the entry of an order declaring 

Holly's the low bidder. 

 After a hearing, the trial court held that the acceptance of 

the ARS bid constituted a proper exercise of the County's "right 

to waive informalities in the sealed bid process, which right is 

afforded to County by Virginia Code Section 11-42." Consequently, 

the court denied the prayer of Holly's for a permanent injunction 

and ordered the matter stricken from the docket. 

 We first consider an argument made by the County that 

"Holly's claim is barred by its failure to institute this action 

within the time limits imposed by Virginia Code Section 11-66.A. 

and by the doctrines of laches and equitable estoppel."*

 However, 

in its final decree, the trial court ruled that Holly's was not 

"barred from prosecuting its interests in this matter, whether by 

 

 *As pertinent here, Code § 11-66(A) provides that a bidder 

desiring to protest the award of a contract shall submit such 

protest in writing no later than ten days after the award, that 

the public body or designated official shall issue a decision in 

writing within ten days, stating the reason for the action taken, 

and that the decision shall be final unless the protesting bidder 

institutes legal action within ten days of the written decision. 
operation of Virginia Code Section 11-66, . . . by the doctrine of 

equitable estoppel, by the doctrine of laches, or by any other 

statute or doctrine," and, as Holly's points out, the County did 

not object to this ruling; indeed, the decree is endorsed by 

counsel for the County in these words: "I ask for this decree." 

Accordingly, we will not consider the County's argument. Rule 

5:25. 

 This brings us to the primary issue in the case, viz., the 

timeliness of the ARS bid. The County devotes a considerable 

portion of its brief to a contention that the bid of ARS was 

"submitted" prior to 2:00 p.m. on March 17, 1994, and that this 

submission satisfied the requirements of the invitation to bid. A 

distinction must be made, the County maintains, between the word 

"submit" and the word "receive." Quoting a dictionary definition, 

the County says that the word "submit" means "to commit 

(something) to the consideration of another" while the word 

"receive" means "to take or acquire (something given, offered or 

transmitted)." 

 The County then argues it is undisputed that a representative 

of ARS was in the bid-opening room at 1:50 p.m., that he had with 

him the bid of ARS, that from the time he arrived until the 

arrival of Mr. Maldonado at 2:02 or 2:03 p.m., the representative 

of Holly's, the representative of BFI, the representative of ARS, 

and the bid of ARS were together in the room, and that when Mr. 

Maldonado entered the room, the bid was either lying on a table in 

that room or forthwith handed to Mr. Maldonado. Accordingly, says 

the County, "the bid of ARS was in the place where it was required 
to be before the time when it was required to be there," and the 

only reason the bid was not received prior to 2:00 p.m., as 

opposed to being submitted prior to 2:00 p.m., was Mr. Maldonado's 

failure to be in the designated place at the designated time. In 

short, the County asserts, "the bid of ARS was submitted both 

properly and timely." 

 The County opines that had the General Assembly shared the 

enthusiasm of Holly's for form over substance, it would have 

provided in the Act "that no bids received (as opposed to 

submitted) after the designated bid-opening hour would be 

considered." The County points out that the General Assembly 

declined to impose such a rigid and inflexible standard, and the 

County requests that this Court "likewise adopt a policy of 

substance over form." 

 We decline the request. To refuse to adopt the County's 

views on this subject would not involve elevating form over 

substance but rather would involve merely giving a word its plain 

and ordinary meaning. The invitation to bid in this case stated 

that on the given date all bids "received" for provision of solid 

waste collection would be opened at 2:00 p.m. Under this 

language, a bid could not be opened at 2:00 p.m. unless it was 

received before 2:00 p.m. Hence, it was not sufficient merely to 

submit a bid to the County prior to the appointed hour; in 

addition, the bid must have been received by the County before 

that time. And the risk that some untoward event might occur to 

prevent the bid's timely receipt must fall upon ARS, whose 

representative waited until almost the last minute to submit its 
bid. 

 Remaining is the question whether the County could waive the 

2:00 p.m. filing requirement. The answer to this question turns 

on whether the requirement is an informality that may be waived 

under Code § 11-42(B). 

 The County argues that the requirement does constitute an 

informality that may be waived. The County points out that § 11-

37 defines an informality as "a minor defect or variation of a bid 

. . . from the exact requirements of the Invitation to Bid . . . 

which does not affect the price, quality, quantity or delivery 

schedule for the . . . services . . . being procured," and the 

County cites three out-of-state decisions as authority for the 

proposition that "a bid tendered late by a bidder may be 

accepted": Townsend v. McCall, 80 So. 2d 262, 266 (Ala. 1955); 

Nielsen v. City of St. Paul, 88 N.W.2d 853, 859 (Minn. 1958); 

Gostovich v. City of West Richland, 452 P.2d 737, 740 (Wash. 

1969). Our research has disclosed two other decisions holding to 

the same effect: Hewitt Contracting Co. v. Melbourne Regional 

Airport Auth., 528 So. 2d 122, 122 (Fla. Dist. Ct. App. 1988); 

William M. Young & Co. v. West Orange Redev. Agency, 311 A.2d 390, 

392 (N.J. Super. App. Div. 1973). 

 Holly's also cites a number of out-of-state decisions but 

they do not address the question whether a time requirement for 

filing bids may be waived. However, our research discloses four 

decisions supporting the view that such a time requirement may not 

be waived. City of Atlanta v. J.A. Jones Constr. Co., 392 S.E.2d 

564, 569 (Ga. Ct. App.), rev'd on other grounds, 398 S.E.2d 369 
(Ga. 1990), cert. denied, 500 U.S. 928 (1991); Hawaii Corp. v. 

Kim, 500 P.2d 1165, 1169 (Haw. 1972); Rexton, Inc. v. State, 521 

N.W.2d 51, 53-54 (Minn. Ct. App. 1994) (distinguishing Nielsen v. 

City of St. Paul, supra); Wiltom Coach Co. v. Central High School, 

232 N.Y.S.2d 876, 877 (N.Y. Sup. Ct. 1962). 

 Hence, five out-of-state decisions support waiver and four 

support non-waiver. We think the non-waiver decisions express 

the better view for it fosters the establishment of a bright-line 

rule for determining whether a bid is timely. As we said in 

Newport News v. Doyle & Russell, Inc., 211 Va. 603, 179 S.E.2d 493 

(1971), where we enforced a provision in a bid form prohibiting a 

plea of mistake: 

 To hold otherwise would . . . seriously jeopardize the 

sanctity of the system for bidding on public contracts 

and lead to the uncertainty and unreliability of bids. 

The system followed here for awarding such contracts 

saves the public harmless, as well as the bidders 

themselves, from favoritism or fraud in its varied 

forms. 

Id. at 608, 179 S.E.2d at 497. 

 In our opinion, a requirement in an invitation to bid that 

fixes the time within which bids must be received is not a minor 

defect or an informality that may be waived but, rather, a 

material and formal requirement that, under the circumstances 

present here, must be fulfilled to the letter of the law. 

Accordingly, we hold that the trial court erred in ruling that 

ARS's late filing of its bid could be waived. By way of remedy, 

Code § 11-70(C) provides that the award of a contract "shall be 

reversed only if the [challenger] establishes that the . . . award 

is not an honest exercise of discretion, but rather is . . . not 
in accordance with the . . . terms and conditions of the 

Invitation to Bid." Here, the award was not in accordance with 

the terms and conditions of the invitation to bid and, 

accordingly, Holly's is entitled to the relief it seeks, viz., the 

reversal of the judgment of the trial court, a declaration that 

the contract between the County and ARS is void as a matter of 

law, and a remand of the matter to the trial court for 

consideration of the prayer of Holly's for injunctive relief. 

Reversed and remanded. 

JUSTICE STEPHENSON, with whom JUSTICE WHITING joins, dissenting. 

 I would hold that ARS's bid was "received" timely. According 

to the stipulated facts, "[a]t 1:50 p.m. a representative from ARS 

was present in the room where the bid opening was to be conducted 

and had with him the sealed bid of ARS." However, "the County 

employee in charge of the bid opening process . . . was not in the 

designated room at the time the ARS representative arrived, and 

did not arrive in the designated room until either 2:02 p.m. or 

2:03 p.m." Between 1:50 p.m. and the time the County employee 

arrived in the room, "the representative of ARS and the bid of ARS 

were continually present together in the designated bid-opening 

room." When the County employee entered the designated bidopening room, "the bid of ARS was either lying upon the table to 

be utilized by [the County employee] . . . or . . . the ARS 

representative handed its bid to [the County employee]." 

 Thus, ARS had its sealed bid in the designated bid-opening 

room ten minutes before the deadline. I think that ARS's bid 

should not have been voided due to circumstances that were beyond 
its control, i.e., the tardiness of the County's employee.