7.19 VPPA CLAIMS AND CLAIM PROCEDURES
7.1901 In General. Nothing will cut off a contractor's entitlement to additional time or compensation more readily or more completely than the contractor's failure to give all of the required notices or comply with the prescribed claims procedures. 432 When a contractor encounters hidden or
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differing conditions, extra work, or changes in the work, or is delayed by some event or occurrence, the contractor should immediately check the contract documents for the relevant procedures and notice requirements and comply with all of those procedures and requirements. 433
Similarly, when the contractor intends to make a claim against the public body, the VPPA establishes two essential claims procedures. The contractor must give proper and timely notice of intent to file the claim and submit a timely claim. 434
The VPPA also requires that public contracts include a claims procedure. In the event such procedures are not included, the VPPA has default procedures. A contractor should not assume the claims procedures are the same in all public contracts. The VPPA claims procedures, for example, do not apply to VDOT road and bridge contracts, which have their own claims procedures. 435 Also, a county, city, or town may exempt itself from the VPPA claims procedures by adopting alternative policies and procedures. 436 A contractor, therefore, should not assume that the procedures on local government public works projects will be the same as for state projects. In any event, the contractor must comply with the claims procedures in both the VPPA and in any statutes, regulations, or ordinances pertaining to claims against counties or other local governments. 437 In other words, complying
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with the VPPA procedures is necessary but may not be sufficient. For example, if a contractor's claim is disallowed by a county, to appeal that decision the contractor must, within 30 days of the decision or within 30 days of service of the decision if the contractor is not present, serve a notice of appeal on the clerk of the governing body and execute a bond to the county with sufficient surety subject to the clerk's approval. The contractor must then file a complaint within six months. 438
7.1902 Notice of Intent to File Claim. Filing a written notice of intent is mandatory to preserve the contractor's right to institute and maintain a legal action for a contract claim against a public body. 439 The written notice must be a document in the form of a letter or equivalent communication, not meeting minutes, that is delivered to the public body and clearly states the contractor's intention to file a claim. 440 The notice of intent must be given either "at the time of the occurrence or beginning of the work upon which the claim is based." 441 Failure to give a notice of intent, or giving untimely notice, will bar the claim. 442 The purpose of the notice is not to obstruct the contractor but to protect the public body by allowing it an opportunity to evaluate the situation before the work is performed and costs are incurred. 443 A public body's actual or constructive knowledge of a claim does not eliminate a contractor's obligation to give timely written notice to preserve its claim. 444 Likewise, a public body cannot waive the notice requirements and cannot be estopped from raising them. 445
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There is no specific requirement that the notice of intent be separate and distinct from the claim itself in time or in form. Because more than one event can trigger the filing of a notice of intent, the time for giving notice will depend on the circumstances of a particular case. 446 For example, a dispute over payment due under the contract may not arise until the work is completed and payment is withheld, which would prevent a contractor from giving notice of intent to file a claim for payment at the beginning of the work upon which the claim is based. 447 In that circumstance, the occurrence is the withholding of payment, and a notice of intent given at the time of the occurrence is timely. In other words, the time of occurrence is deemed to be when the parties develop a legitimate dispute over the claim. 448
In some cases, the notice of intent may be the claim itself. 449 However, in Dr. William E.S. Flory Small Business Development Center, Inc. v. Virginia Department of Business Assistance, 450 the plaintiff's notice of intent was not timely even though it was submitted when payment was refused, because the plaintiff knew before providing the services on which the claim was based that the agency would not pay for the services unless the plaintiff had submitted certain paperwork prior to providing the services, which the plaintiff never submitted. 451
If the contractor intends to give a notice of intent, its "written document . . . must clearly give notice of the contractor's intent to file its claim" or risk having its claim barred. 452 Routine documents generated in the course of a construction project do not qualify as a notice of intent. 453 For example, even though the contractor may submit a letter summarizing its dispute with the public body and refusing to comply with the public body's demand to
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perform disputed work, that letter may not constitute a notice of intent. 454 Likewise, invoices submitted for payment or transmittal letters may not constitute notices of intent. 455
The issue of whether a required notice was given is for the fact-finder to determine, and its decision will not be set aside unless plainly wrong. 456
7.1903 Contract Claims Procedures.
A. Submitting a Claim to the Public Body. Another mandatory step in the claims process is filing a written claim, along with all practically available supporting evidence and documentation, with the public body for a final decision no later than 60 days after final payment. 457 Although claim procedures are governed generally by statute, public bodies are required to include a claims procedure in their contracts. 458 For contracts that do not contain claims procedures, a default procedure is provided in the VPPA. 459 Where a claims procedure, whether in the contract or local ordinance, is not consistent with the VPPA, the VPPA procedure will control. 460
B. Meaning of "Claim." What is a "claim" for the purposes of the VPPA? Although the VPPA does not define the term, the VDOT Road and Bridge Specifications define a claim as
The Contractor's written request or demand for an adjustment to the Contractor's compensation or to the Contract time, for costs, expenses, or other damages, adjustment of the Contract terms, or for any entitlement available under the Contract, made within the time, in
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the form, and pursuant to the provisions for claims specified in the Contract Documents. 461
The DGS General Conditions also do not define the term. For contracts in accordance with the DGS General Conditions and other public contracts without this definition, case law gives some insight into what is not a claim. For example, a written settlement proposal is not a claim. 462 Invoices or demands for payment of invoices are the "routine and anticipated components of construction projects [that] generally do not provoke irresolvable disputes"; accordingly, such documents are not...
