Construction Law Insights

Biscayne Constr., Inc. v. Bd. of Supervs. of Fairfax Cty., 103 Va. Cir. 306 (Fairfax Cnty. Cir. Ct. Oct. 28, 2019)

The issue before the Court was whether the decision of a county’s purchasing agent was a “final decision” of a “public body” under the Virginia Public Procurement Act (“VPPA”). The Board of Supervisors for Fairfax County, Virginia (the “Board”) argued it was, but the Court disagreed.

Per Virginia Code § 2.2-4343(A)(10), the VPPA does not apply to a county that has adopted, by resolution, alternative policies and procedures related to the procurement of goods and services by the county. Here, the Board adopted, by resolution, alternative policies and procedures related to the procurement of goods and services by the county. Therefore, the county is not bound by any provisions in the VPPA.

Section 5(A) (“Contractual Disputes”) and Section 6(A) (“Legal Actions”) of Article 4 to the Board’s Purchasing Resolution provide: (1) that the county’s purchasing agent’s decision is final and conclusive unless appealed within six months of the final decision by instituting a legal action as provided in the Code of Virginia; and (2) no legal action can be instituted until all statutory requirements have been met. The statutory requirements for a “legal action” are found in Virginia Code §§ 2.2-4363(D) (requires a decision by the public body before instituting a legal action) and 2.2-4364(E) (court only has jurisdiction if the action involves a contract dispute with a public body). The Board is a “public body” because it is a legislative body or board created by law to exercise sovereign power and is empowered by law to undertake activities described in VPPA. Thus, a legal action by a contractor can only be taken within six months of receiving the Board’s final decision.

Because there is no provision in the Code of Virginia that authorizes action based upon a final written decision of a county purchasing agent, the language in Section 6(A) incorporating “legal action as provided in the Code of Virginia,” means that Section 5(A) referred to provisions in the Code which govern “legal action” on contractual disputes, as discussed above. Therefore, the Board’s action in disallowing the plaintiff’s claim by letter from the clerk of the Board (dated June 6, 2018) and the plaintiff’s filing of the action on October 16, 2018 (within 6 months of June 6, 2018) gave the court subject matter jurisdiction under the VPPA.

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