Present: All the Justices 

SABRE CONSTRUCTION CORPORATION 

v. 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 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 

§ 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 

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 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 

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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 

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 

§ 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. 

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 § 11-71, if 

 

county ordinance or resolution adopting competitive 

procurement principles pursuant to § 11-35(D). 

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available,2 or in the alternative by instituting legal action 

as provided in § 11-70." § 11-66(A). 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 

protest. 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. 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 

 2

 The County did not create an administrative appeal 

pursuant to § 11-71. 

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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 § 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 § 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 

 3

 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, 

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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 § 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 § 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 . . . . 

 

Inc. v. City of Alexandria, 231 Va. 421, 423-24, 344 S.E.2d 

903, 905 (1986). 

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 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." 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 § 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. 

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 For the above reasons, we will affirm the judgment of the 

trial court. 

Affirmed.

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