Present: Carrico C.J., Compton, Lacy, Keenan, Koontz, and 

Kinser, JJ., and Whiting, Senior Justice 

ASPHALT ROADS & MATERIALS 

COMPANY, INCORPORATED 

 OPINION BY 

v. Record No. 980805 SENIOR JUSTICE HENRY H. WHITING 

 FEBRUARY 26, 1999 

COMMONWEALTH OF VIRGINIA, 

DEPARTMENT OF TRANSPORTATION, et al. 

FROM THE COURT OF APPEALS OF VIRGINIA 

 The dispositive issue in this appeal is whether a 

provision in a construction contract allows extra compensation 

to a contractor for certain additional work on a highway 

project. 

 In June 1992, Asphalt Roads and Materials Company, 

Incorporated (Asphalt Roads) contracted with the Virginia 

Department of Transportation (VDOT), an agency of the 

Commonwealth, to widen a section of Landstown Road in Virginia 

Beach. The contract incorporated by reference VDOT's "January 

1991 Road and Bridge Specifications" and any amendatory and 

supplemental specifications. Section references herein will 

be to the "1991 Road and Bridge Specifications," as amended 

and supplemented. 

Asphalt Roads subcontracted with Kevcor Corporation 

(Kevcor) to install the utility pipes in conformance with the 

terms of Asphalt Roads' contract with VDOT. The contract 
required the contractor to remove and replace any soil that 

was unsuitable for use as backfill under the utility pipes.1 

The contract drawings indicated that there were 940 cubic 

yards of such soil. However, during excavation, Kevcor 

discovered that there were many more than 940 cubic yards of 

unsuitable soil and VDOT's inspector required that Kevcor 

remove and replace that extra unsuitable soil with "borrow," 

which is defined by § 101.02 as “[s]uitable material from 

sources outside the roadway.” 

Asphalt Roads, on behalf of Kevcor (collectively the 

contractor), claimed additional compensation for the excess 

unsuitable material that was discovered, removed, and replaced 

with borrow. Agreeing that the contractor was entitled to a 

part of its claim, VDOT paid for the removal of some of the 

material as an "unforeseen condition" covered by § 104.02.2 

VDOT also paid for some of the backfill under § 303.06(d) 

(quoted later herein). VDOT declined to pay the balance of 

 1

 Section 101.02 defines backfill as "[m]aterial used to 

replace or the act of replacing material removed during 

construction; may also denote material placed or the act of 

placing material adjacent to structures." 

2

 Section 104.02(a) provides, in pertinent part: 

"Alterations of Quantities[.] [VDOT's] Engineer reserves the 

right to make, in writing, at any time during the work, such 

changes in quantities and such alterations in the work as are 

necessary to satisfactorily complete the project." (Emphasis 

added.) 

2
the claim for a number of reasons, some of which are involved 

in this appeal. 

After exhausting the administrative remedies provided by 

Code § 33.1-386, the contractor sued VDOT in the Circuit Court 

of the City of Virginia Beach under the provisions of Code 

§ 33.1-387. At issue was the contractor's right of recovery 

and, if it had such a right, how much borrow had been required 

and how much unsuitable material had to be removed and 

disposed of. 

The circuit court resolved these factual disputes by 

holding that the contractor was entitled to payment for an 

additional 8,657 cubic yards of backfill and 8,807 cubic yards 

of unsuitable material. The court adopted VDOT's contention 

that compensation for the backfill should be awarded at the 

contract-stated unit price of $6.18 for select borrow and 

awarded the contractor $53,500.26 on that claim.3 With regard 

to the disposal of unsuitable material, the court adopted the 

contractor's contention that compensation should be in the 

amount of $11.16 per cubic yard, the unit price stated in the 

contract for the disposal of similar materials, and awarded 

the contractor $98,286.12 for that claim. 

 3

 Section 101.02 defines select borrow as "[b]orrow 

material that has specified physical characteristics." 

3
On VDOT's appeal, the Court of Appeals reversed the 

portion of the judgment awarding the additional compensation, 

affirmed a part of the judgment, and remanded the case for 

further proceedings on issues not material here. We awarded 

the contractor an appeal limited to the hereinafter described 

issues.4

 Here, the dispute is whether the Court of Appeals 

properly denied the contractor's described claim for extra 

compensation for excavating, removing, and replacing 

unsuitable material under and around the utility pipes. Among 

other things, the contractor contended that §§ 104.03 and 

303.06 applied, not only to allow the claim, but also to fix 

the amount of the contractor's compensation.5 The Court of 

 4

 Because this case originated before an administrative 

agency, the judgment of the Court of Appeals is ordinarily 

final and not subject to further appeal. Code § 17.1-410. 

However, we granted this appeal because we consider the 

primary issue involved to be a matter of significant 

precedential value. Id. 5

 We reject VDOT's contention that the contractor did not 

assert the differing site conditions clause either in the 

trial court or in the Court of Appeals. Our inspection of the 

record indicates that the contractor argued that § 104.03 was 

the applicable section on several occasions. First, the 

contractor introduced written correspondence with VDOT into 

evidence in which it asserted that § 104.03 was applicable. 

Second, at least one witness was specifically questioned by 

the contractor's counsel about § 104.03. Third, the 

contractor argued that § 104.03 was the applicable term on 

page 10 of its brief in the Court of Appeals. And indeed, the 

same attorney for VDOT who contends here that the differing 

site conditions clause was not asserted by the contractor in 

the courts below specifically responded to that contention 

4
Appeals adopted VDOT's contention that §§ 302.04 and 520.06 

were the controlling sections and that they did not provide 

for extra compensation. 

For the reasons which follow, we do not think that 

§§ 302.04 and 520.06 control or conflict with the sections 

relied upon by the contractor to sustain its claim. As 

pertinent, §§ 302.04 and 520.06, both entitled "Measurement 

and Payment," provide generally that excavating, backfilling, 

disposing of unsuitable material, and restoring existing 

surfaces, are included in the contract unit price for pipe. 

However, neither deals specifically with the problems at hand, 

as do the sections relied upon by the contractor. 

 First, we decide whether the contractor is entitled to 

compensation for the backfill that had to be obtained from 

offsite sources to replace the unsuitable material. VDOT 

argues that §§ 302.04 and 520.06 preclude the payment of 

additional sums for obtaining borrow to replace the excess 

unsuitable soil removed by the contractor. For the following 

reason, we find no merit in this contention. 

Section 303.06, also entitled "Measurement and Payment," 

provides, in subsection (d) that: 

 

when asserted by the contractor not only in his oral argument 

for VDOT in the trial court, but also in VDOT's brief in the 

Court of Appeals. 

5
Furnishing and placing backfill material, 

including backfill for undercut, will be included in 

the price for excavation. . . unless. . . suitable 

material is not available within the construction 

limits. When suitable backfill is not 

available within the construction limits, the 

material furnished and placed by the Contractor will 

be paid for in accordance with Section 109.05. 

Section 303.06 is specific in providing that when 

suitable backfill is not available on the job site, the 

contractor will be compensated for the backfill provided from 

off-site sources. Hence, we hold that § 303.06 authorizes 

additional compensation to the contractor for having provided 

the additional backfill material. Accordingly, the trial 

court did not err in allowing additional compensation for that 

claim. 

Next, we consider whether the contractor is entitled to 

additional compensation for removing and disposing of the 

excess unsuitable material. The contractor claims that it is 

entitled to such compensation under § 104.03, the differing 

site conditions clause. That section provides, in pertinent 

part, that 

[d]uring the progress of the work, if subsurface or 

latent physical conditions are encountered at the 

site differing materially from those indicated in 

the contract, 

then upon notification to VDOT and its determination that the 

conditions are materially different, "an adjustment, excluding 

6
anticipated profit, will be made and the contract modified" to 

compensate the contractor for the contractor's increased cost. 

The purpose of the differing site conditions clause and 

similar clauses, described in a number of cases as the 

"changed conditions clause," has been stated in several cases. 

The North Carolina Court of Appeals, for example, has stated 

that its purpose is "[t]o encourage low, competent bids," Ray 

D. Lowder, Inc., v. North Carolina State Highway Comm'n, 217 

S.E.2d 682, 696, (N.C. Ct. App.) cert. denied, 218 S.E.2d 467 

(N.C. 1975). 

Similarly, the Court of Claims stated that the purpose of 

the clause was: 

[T]o take at least some of the gamble on 

subsurface conditions out of bidding. Bidders need 

not weigh the cost and ease of making their own 

borings against the risk of encountering an adverse 

subsurface, and they need not consider how large a 

contingency should be added to the bid to cover the 

risk. They will have no windfalls and no disasters. 

The Government benefits from more accurate bidding, 

without inflation for risks which may not eventuate. 

It pays for difficult subsurface work only when it 

is encountered and was not indicated in the logs. 

Foster Constr. C. A. & Williams Bros. Co. v. United States, 

435 F.2d 873, 887 (Ct.Cl. 1970). 

Although the differing site conditions clause included in 

the contract at issue must be included in most federal highway 

construction contracts pursuant to 23 C.F.R. § 635.109 (1997), 

apparently VDOT voluntarily inserted the clause to obtain its 

7
benefits in securing the lowest competent bids. VDOT does not 

question the wisdom and utility of the differing site 

conditions clause, but instead contends that it does not apply 

to mere increases in government-estimated quantities of 

material as distinguished from the character and nature of 

materials. We disagree. 

Since we apparently have not been confronted with this 

issue and the clause in question is similar to those in 

federal construction contracts, both parties cite, and we 

consider, cases arising under those contracts. Although VDOT 

cites cases allegedly supporting its contention that changes 

in quantity are not cognizable under the differing site 

conditions clause, we note that most of those cases deal with 

substantially different factual situations. We think that the 

better view is expressed by the following statement of the 

Court of Claims: 

The legal conclusion of the Appeals Board that 

a 39 percent overrun [in clearing all trees and 

brush along a 20 mile stretch of a river], in the 

facts and circumstances of this case, was a material 

change and warranted a price adjustment [under the 

change of conditions clause], is supported by 

numerous decisions in this court. To do otherwise, 

and hold the contractor to its original lump-sum 

bid, would negate one of the prime reasons for 

incorporating a "changed condition" article into 

these contracts, i.e., "to induce bidders not to 

increase their prices to cover possible misfortunes 

which might result from unforeseen developments." 

This is true even though the Army attempted to 

8
protect itself by inserting caveatory and 

exculpatory provisions in the contract. 

Schutt Construction Co., Inc. v. United States, 353 F.2d 1018, 

1021 (Ct.Cl. 1965) (internal citations omitted). 

We think that whether the changed conditions are 

“conditions . . . differing materially from those in the 

contract” under § 104.03 is a question of fact regardless of 

whether the claimed changes result in quantitative or 

qualitative changes to the work to be performed. 

Even so, VDOT argues that the contractor has failed to 

make the necessary showing that it could not reasonably have 

ascertained from information available to it at the time of 

bidding that there would be an excess amount of unsuitable 

soil. Part of the evidence suggests that the contractor's 

employees should have anticipated the excessive amount of 

unsuitable material which would be encountered from their 

excavation experience of similar nearby areas. On the other 

hand, the contractor's employees testified that there was no 

practical way of ascertaining whether there was much more 

unsuitable soil to excavate than that contemplated by the 

contract. 

Thus, the evidence conflicted on this issue, and that 

conflict has been resolved by the trial court's decision 

9
implicitly rejecting VDOT's contention.6 Since credible 

evidence supports that decision, we, as the reviewing court, 

must reverse the judgment of the Court of Appeals and 

reinstate the circuit court's judgment on that issue. See

Rogers v. Marrow, 243 Va. 162, 166, 413 S.E.2d 344, 346 (1992) 

(circuit court must reinstate jury verdict if credible 

evidence to support it). 

Next, VDOT argues that the Court of Appeals correctly 

applied § 102.04 to deny the claim on the ground that this 

section made the contractor responsible for any alleged excess 

quantities of unsuitable soil. As pertinent, § 102.04 

provides: 

 The submission of a bid will be considered 

conclusive evidence that the bidder has examined the 

 6

 Although the record does not indicate which section of 

the specifications the trial court applied in awarding a 

judgment on this claim, in the absence of clear evidence to 

the contrary in the record, we presume that it correctly 

applied the provisions of Code § 104.03 to the facts and that, 

in doing so, it resolved any conflict in the facts in favor of 

the contractor. See Bottoms v. Bottoms, 249 Va. 410, 414, 457 

S.E.2d 102, 105 (1995) (absent clear evidence to contrary in 

record, appellate court assumes trial court correctly applied 

law to facts and also views facts in light most favorable to 

party prevailing in trial court). 

We do not think that the trial court could have made an 

award under § 104.02 as set forth in the concurring opinion, 

because these were not "changes" that were made by VDOT's 

engineer, as expressly provided in that section and no such 

"changes" were made in writing, as further provided in that 

section. Indeed, VDOT, in making its payment of a part of 

these claims, characterized them as arising from an 

"unforeseen condition," one of the predicates for payment 

under § 104.03. 

10
site of the proposed work, proposal, plans, standard 

drawings, specifications, . . . and any other 

documents specified in the proposal before 

submitting a bid and is satisfied as to the 

conditions to be encountered in performing the work 

and requirements specified in the proposal. 

 . . . . 

The submission of a bid will be considered 

conclusive evidence that the bidder is satisfied 

with regard to the subsurface conditions to be 

encountered in the work. 

 Additionally, VDOT notes other warnings in § 102.04 which 

advise bidders that the available subsurface data are accurate 

with regard to test borings only and disclaim any warranty 

regarding subsurface conditions or the condition, amount, or 

nature of the material which may be encountered. 

We reject these contentions. If we applied these 

sections to the change of condition shown in the evidence in 

this case, we would render meaningless the language of 

sections like § 104.03 and negate their salutary purposes. 

See Schutt Constr. Co., 353 F.2d at 1021. For these and other 

reasons, a number of cases have rejected similar contentions 

dealing with the relation of clauses like § 102.04 to clauses 

like § 104.03. See e.g., United Contractors v. United States, 

368 F.2d 585 (Ct.Cl. 1966); Fehlhaber Corp. v. United States, 

151 F. Supp. 817 (Ct.Cl.), cert. denied, 355 U.S. 877 (1957); 

Ray D. Lowder, Inc., 217 S.E.2d 682; Morrison-Knudsen Co. v. 

United States, 397 F.2d 826 (Ct.Cl. 1968). 

11
Finally, and contrary to VDOT's contention, we conclude 

that since § 104.03 applies to a specific situation, 

"differing site conditions," it controls, rather than the 

general language in §§ 302.04 and 520.06. We hold, therefore, 

that the contractor was entitled to additional compensation 

for the disposal of the excess material under § 104.03 of the 

contract. 

For these reasons, we will reverse the judgment of the 

Court of Appeals, which reversed the circuit court's judgment 

awarding $151,786.38 to the contractor on the above claims. 

We will also enter final judgment in favor of the contractor 

on those claims, as provided in the judgment of the circuit 

court.7 We will remand the case to the Court of Appeals for 

its remand to the trial court for further action in 

conformance with the balance of the opinion of the Court of 

Appeals. 

Reversed,

final judgment in part,

and remanded.

JUSTICE LACY, with whom JUSTICE KOONTZ and JUSTICE KINSER 

join, concurring. 

 7

 Because neither VDOT nor the contractor questioned the 

trial court's computation of the amounts due the contractor, 

the Court of Appeals did not, and we will not, review the 

trial court's method of determining the amount of extra 

compensation due to the contractor. 

12
I concur with the majority's conclusion that contract 

§ 303.06(d) entitled Kevcor to additional compensation for 

backfill because that section specifically authorizes payment 

for backfill brought onto the site from off site in accordance 

with the provisions of § 109.05. This specific section of the 

contract overrides the more general contract provisions relied 

upon by VDOT, §§ 302.04 and 520.06, which do not address 

additional compensation for backfill acquired off site. 

Because Asphalt Roads did not appeal the amount of additional 

compensation awarded by the trial court for backfill, I agree 

with the majority and would reinstate that part of the trial 

court's judgment awarding Kevcor $53,500 for the backfill. 

Section 303.06, does not address additional compensation 

for disposal of unsuitable material. I disagree with the 

majority's conclusion that § 104.03, the Differing Site 

Conditions Clause of the contract, is the source of such 

compensation. The majority reached its conclusion through a 

two-step process. First, it announces that the issue whether 

the asserted changed conditions qualified as conditions 

"differing materially from those in the contract" under 

§ 104.03 was one of fact. And second, the majority concludes 

that, in this case, the trial court resolved conflicting 

evidence and made the requisite finding of fact in Kevcor's 

favor, that is, that the site conditions differed materially 

13
from those in the contract. Assuming, arguendo, that the 

first step is correct, the record does not support a 

conclusion that the trial court made the factual finding 

asserted by the majority. 

Although the trial court found that the evidence 

supported the additional compensation, there is nothing in the 

record that indicates that this conclusion was based upon an 

application of § 104.03 or upon any finding by the trial court 

of "materially different conditions." The absence of such a 

finding is readily understood in light of the posture of the 

case when it reached the trial court. 

At the time the project was bid, VDOT, Asphalt Roads, and 

Kevcor were aware that some of the material excavated would be 

unsuitable for use as backfill. The contract estimated that 

there would be approximately 940 cubic yards of material 

unsuitable for backfill. During the course of the excavation, 

however, VDOT's inspector informed Kevcor that none of the 

material being excavated would be suitable for backfill. As a 

result of this change, Kevcor had to remove the unsuitable 

material and replace it with suitable backfill material 

obtained from sources outside of the project and also had to 

dispose of the unsuitable material outside of the project 

area. 

14
 VDOT, Kevcor, and Asphalt Roads engaged in many 

discussions regarding compensation for the backfill Kevcor 

brought to the site and the unsuitable material it disposed of 

off site. At this time, Kevcor claimed additional 

compensation under §§ 303.06 and 109.05 of the contract. VDOT 

agreed that Kevcor was entitled to additional compensation 

pursuant to § 104.02, entitled "Alteration of Quantities," 

which allows VDOT's engineer to change the quantities and make 

alterations in the work which are necessary to complete the 

project.8

 8

 Section 104.02 of the contract provides: 

The Engineer reserves the right to make, in 

writing, at any time during the work, such changes in 

quantities and such alterations in the work as are 

necessary to satisfactorily complete the project. Such 

changes in quantities and alterations shall not 

invalidate the contract nor release the surety, and the 

Contractor agrees to perform the work as altered. 

If the alterations or changes in quantities 

significantly change the character of the work under the 

contract, whether or not changed by any such different 

quantities or alterations, an adjustment, excluding 

anticipated profits, will be made to the contract. The 

basis for the adjustment shall be agreed upon prior to 

the performance of the work. If a basis cannot be 

agreed upon, then an adjustment will be made either for 

or against the Contractor in such amount as the Engineer 

may determine to be fair and equitable. 

At the option of the Engineer, the Contractor may 

be directed to accomplish the work on a force account 

basis in accordance with the provisions of Section 

109.05 of the Specifications. 

15
 However, a dispute arose between the parties over the 

amount of backfill needed and the amount of unsuitable 

material disposed off site for which additional compensation 

was due. In quantifying its claim, Kevcor asserted that it 

had delivered 18,742 cubic yards of backfill and disposed of 

the same amount of unsuitable material off site. VDOT 

insisted on measuring the compensable amount of backfill by 

using the PB-1 Pipe Bedding "X" dimensions as shown in the 

contract. Using that measurement, VDOT agreed to pay, and did 

pay, Kevcor for about half of the amount of backfill claimed 

by Kevcor, but refused to pay for the remainder. Kevcor 

 

If the alterations or changes in quantities do not 

significantly change the character of the work to be 

performed under the contract, the altered work will be 

paid for as provided elsewhere in the contract. 

The term "significant change" shall be construed to 

apply only to the following circumstances: 

(1) When the character of the work as altered differs 

materially in kind or nature from that involved or 

included in the original proposed construction or 

(2) when a major item of work, as defined elsewhere in 

the contract is increased or decreased more than 25 

percent of the original contract quantity. Any 

allowance for an increase in quantity shall apply 

only to that portion in excess of 125 percent of 

original contract item quantity, or in case of a 

decrease below 75 percent, to the actual amount of 

work performed or 

(3) When overruns and underruns of piling amount to more 

than 25 percent of the original bid quantity, 

16
asserted that it was entitled to payment for the additional 

9,323 cubic yards of backfill. 

Kevcor, in its claim letter dated October 16, 1995, 

asserted that payment for the backfill was not limited by the 

measurement applied by VDOT, arguing that neither 

§§ 303.06(d), 109.05, nor any other provision in the contract 

limits the compensation for additional backfill to the amount 

measured by the PB-1 Pipe Bedding "X" dimensions. Kevcor also 

asserted that, under OSHA standards, it was required to 

protect workers by "means of sheeting, shoring, bracing or 

sloping the sides of the trenches" in which they worked. 

Kevcor explained that it was "physically impossible for a 

contractor to comply with the minimum "X" dimension for 

bedding and maintain that trench width to the top of the 

excavation and also provide the necessary protection for 

workers" as required by OSHA standards. Thus, Kevcor 

concluded that VDOT erroneously limited its additional 

compensation for both the backfill and the disposal of 

unsuitable material to the PB-1 Pipe Bedding "X" dimensions, 

and that Kevcor should be paid for an additional 9,323 cubic 

yards of backfill and for the off-site disposal of an 

additional 9,323 cubic yards of unsuitable material. 

 

whether or not such item has been designated as a 

major item. 11-19-91 104(d) 

17
Thus, Kevcor claimed it was entitled to an additional 

amount of $56,497.38 for the backfill and $103,112.38 for the 

off-site disposal of the unsuitable material based on $11.16 

per cubic yard.9 VDOT refused to pay this claim. 

Kevcor, through Asphalt Roads, appealed VDOT's denial of 

claim to the Commissioner of Transportation, pursuant to the 

administrative review procedure provided by Code § 33.1-386. 

The Commissioner also denied the claim, and Asphalt, on its 

own behalf and on behalf of Kevcor, filed its motion for 

judgment in the Circuit Court of the City of Virginia Beach. 

Following an evidentiary hearing, the trial court stated 

from the bench that "the evidence established that Kevcor was 

entitled to additional compensation" for the backfill and 

disposal of unsuitable material, "although not as much, I 

would suspect, as [Asphalt] feels that it should have been 

entitled to on behalf of its subcontractor Kevcor." The court 

went on to award $53,500.26 for the backfill and $98,286.12 

for the disposal of unsuitable material, for a total of 

$151,786.38. While the trial court stated that the amount 

"breaks down to" 8,657 cubic yards at $6.18 per cubic yard for 

the backfill and 8,807 cubic yards at $11.16 per cubic yard 

 9

 Although Kevcor also maintained it was entitled to 

approximately $10.00 a cubic yard for the backfill under 

§ 109.05 of the contract, it agreed to accept the contract 

unit price for select borrow of $6.06 per cubic yard. 

18
for the disposal of unsuitable material, the trial court did 

not indicate the source of these figures or the specific 

contract provision that authorized the additional 

compensation. 

The dispute before the trial court was over VDOT's 

assertion that it only had to pay for the amounts as measured 

by the PB-1 Pipe Bedding "X" dimensions. In resolving this 

dispute, the trial court stated only that it believed the 

evidence established a right to additional compensation. This 

statement, given the posture of the case, indicates that the 

trial court determined only that VDOT and the Commissioner 

were wrong in limiting the amount of material for which Kevcor 

was entitled to compensation to the PB-1 Pipe Bedding "X" 

dimensions. Nothing in the record, in my opinion, indicates 

that the trial court found that the additional 9,000 cubic 

yards that had to be disposed of off site was a "materially 

different condition" under § 104.03 of the contract. 

The specific contract provision that authorized this 

additional payment was not the crucial issue in the trial 

court.10 VDOT had already paid Kevcor for approximately 9,000 

 10 In its brief before the Court of Appeals, Asphalt Roads 

asserted that the only issue which could be decided by the 

trial court was the claim submitted to and denied by the 

Commissioner, specifically Asphalt Roads’ attempt to obtain 

the difference between the actual cost of supplying suitable 

backfill from off site and disposing of unsuitable material 

19
cubic yards of unsuitable material deposited off site under 

§ 104.02.11 It logically follows that the trial court assumed 

that the authorization for payment of the additional 

compensation it awarded was also § 104.02. 

This record does not support the conclusion that the 

trial court made a factual finding that the site conditions 

were materially different than those in the contract. It 

does, however, support the trial court's decision that Kevcor 

was entitled to additional compensation for the amount of 

unsuitable material it disposed of off site, and that such 

compensation was not limited to amounts set out in the PB-1 

Pipe Bedding "X" dimensions. 

Accordingly, I would reverse the decision of the Court of 

Appeals and reinstate that portion of the trial court's 

judgment awarding Kevcor $98,286.12. 

 

and the amount allowed and paid by VDOT. VDOT did not seek a 

set-off or counterclaim for amounts it had already paid. 

Virginia Code § 33.1-387 restricts the trial court to a review 

of the claims denied by the Commissioner. 

11 The record contains a number of documents authored by 

VDOT indicating VDOT's understanding that off-site disposal 

would be compensable under § 104.02. Similarly, there are a 

number of documents authored by Kevcor and Asphalt Roads that 

claimed compensation for the off-site disposal under § 104.02. 

20