Virginia Law

A. Every contractor whose bid is accepted shall, before commencing work, enter into a contract with the Commissioner of Highways that shall fully set out the time when work shall commence and when the contract shall be completed as well as the time and manner for the payment for the work. Whenever the Commissioner of Highways or his designee publicly opens and announces all bids received for each invitation to bid, it shall be announced at the same time if the lowest read bid exceeds the maximum tolerance of the Department's estimate for the work represented by that bid.

B. The contract shall require that the contractor comply with all requirements, conditions, and terms of the contract, including environmental permits that are part of the contract. If the contractor violates a contract provision and the violation results in environmental damage or if the contractor violates environmental laws or environmental permits, the Department may suspend the contractor from future bidding or initiate debarment. In addition, the Department may recover either (i) the loss or damage that the Department suffers as a result of such violation or (ii) any liquidated damages established in such contract plus (iii) reasonable attorney fees and expert witness fees. Any damages and costs collected under this section shall be deposited into the Transportation Trust Fund and used for transportation purposes as determined by the Board.

Code 1950, § 33-105; 1958, c. 573; 1970, c. 322, § 33.1-191; 1999, c. 405; 2001, cc. 418, 432; 2002, c. 303; 2014, c. 805.

A. Upon the completion of any contract for the construction of any state highway project awarded by the Board or by the Commissioner of Highways to any contractor, if the contractor fails to receive such settlement as he claims to be entitled to under the contract for himself or for his subcontractors or for persons furnishing materials for the contract for costs and expenses caused by the acts or omissions of the Department, he may, within 60 days after the final estimate date, deliver to the Department, through proper administrative channels as determined by the Department, a written claim for such amount to which he deems himself, his subcontractors, or his material persons entitled under the contract. The final estimate date shall be set forth in a letter from the Department to the contractor sent by certified mail. The claim shall set forth the facts upon which the claim is based, provided that written notice of the contractor's intention to file such claim shall have been given to the Department at the time of the occurrence or beginning of the work upon which the claim and subsequent action is based. Within 90 days from receipt of such claim, the Department shall make an investigation and notify the claimant in writing by certified mail of its decision. The claimant and the Department may, however, mutually extend such 90-day period for another 30 days.

B. If dissatisfied with the decision, the claimant shall, within 30 days from receipt of the Department's decision, notify the Commissioner of Highways, in writing, that he desires to appear before him, either in person or through counsel, and present any additional facts and arguments in support of his claim as previously filed.

C. The Commissioner of Highways shall schedule such appearance to be held within 30 days of receiving the claimant's written request. The claimant and the Commissioner of Highways may, however, mutually agree to schedule such appearance to be held after 30 days but before 60 days from the receipt of the claimant's written request.

D. Within 45 days from the date of the appearance before him, the Commissioner of Highways shall make an investigation of the claim and notify the contractor in writing of his decision. The claimant and the Commissioner of Highways may, however, mutually agree to extend such 45-day period for another 30 days. If the Commissioner of Highways deems that all or any portion of a claim is valid, he shall have the authority to negotiate a settlement with the contractor, but any such settlement shall be subject to the provisions of § 2.2-514.

E. Failure of the Department or the Commissioner of Highways to render a decision within the time period specified in subsections A and D, or within such other period as has been mutually agreed upon as provided in this section, shall be deemed a denial of the claim.

If the Commissioner of Highways determines that a claim has been denied as the result of an administrative oversight, then the Department reserves the right to reconsider the claim.

1976, c. 230, § 33.1-386; 1982, c. 320; 1991, c. 691; 1994, c. 67; 2001, c. 175; 2007, c. 162; 2014, c. 805.

No suit or action shall be brought against the Department by a contractor or any persons claiming under him or on behalf of a subcontractor of the contractor or a person furnishing materials for the contract to the contractor on any contract executed pursuant to this article or by others on any claim arising from the performance of the contract by the contractor, subcontractor, or person furnishing materials to the contractor, unless the claimant has exhausted the review process provided by § 33.2-1101. Further, no such suit or action shall be brought unless such suit or action is brought within 12 months from receipt of the decision of the Commissioner of Highways. In no event shall any delay therein on the part of the contractor, subcontractor, or person furnishing materials be construed as a reason for extending the time within which such suit or action must be brought. In any case brought against the Department on behalf of a subcontractor or person furnishing materials to the contractor, lack of privity between the parties shall be no defense; however, any such case brought on behalf of a subcontractor or person furnishing materials to the contractor shall only be brought for costs and expenses caused by the acts or omissions of the Department and shall not be brought for costs and expenses caused by the contractor.

1976, c. 230, § 33.1-192.1; 1982, c. 647; 1991, c. 691; 2014, c. 805.

As to such portion of the claim as is denied by the Commissioner of Highways, the contractor may institute a civil action for such sum as he claims to be entitled to under the contract for himself or for his subcontractors or for persons furnishing materials for the contract by the filing of a petition in the Circuit Court of the City of Richmond or where the highway project that is the subject of the contract is located. Any civil action brought on behalf of a subcontractor or person furnishing materials for the contract shall only be brought for costs and expenses caused by the acts or omissions of the Department and shall not be brought for costs and expenses caused by the contractor. Trial shall be by the court without a jury. The submission of the claim to the Department within the time and as set out in § 33.2-1101 shall be a condition precedent to bringing an action under this article and the Department shall be allowed to assert any and all defenses in a case brought by or on behalf of the subcontractor or a person furnishing materials to the contractor which are available to the contractor.

1976, c. 230, § 33.1-387; 1982, c. 320; 1991, c. 691; 2014, c. 805.

The provisions of this article shall apply to all contracts executed and proceedings initiated after June 30, 1976, and may be made applicable to existing contracts by mutual consent of the contracting parties.

1976, c. 230, § 33.1-388; 1982, c. 320; 2014, c. 805.

The provisions of this article shall be deemed to enter into and form a part of every contract entered into between the Board and any contractor on or after July 1, 1976, and no provision in said contracts shall be valid that is in conflict herewith.

1976, c. 230, § 33.1-389; 2014, c. 805.

For the purposes of this article:

"Highway contractors' association" means any association, bureau, agency, or other medium, incorporated or unincorporated, whose object or work is to promote the common welfare of, furnish information to, promote cooperation among, stimulate the demand for the services of, or advertise the members thereof.

"Member of highway contractors' association" means any individual partnership, or corporation engaged in contracting for the construction, repair, and maintenance of highways and highway bridges and for supplying labor, material, machinery, and supplies for use in highways and bridges that is a member of, stockholder in, subscriber of, or contributor to, or that is in any way affiliated with, any highway contractors' association.

Code 1950, §§ 33-270, 33-271; 1970, c. 322, §§ 33.1-336, 33.1-337; 2014, c. 805.

Every highway contractors' association domiciled in the Commonwealth shall, upon request from the Secretary of the Commonwealth, within 30 days of such request, but no more often than once a calendar year, furnish in writing to the Secretary of the Commonwealth the following information:

1. The names and post office addresses of all of its members. When any member is a firm, the names and addresses of the members of the firm shall be furnished. When any member is a corporation, the names of the officers of the corporation shall be furnished.

2. The names and post office addresses of the officers of the highway contractors' association and the duties and salaries of the officers.

3. The property and income of the highway contractors' association and by whom the same is paid.

4. An itemized statement of the expenditures of such association.

5. A copy of the charter and bylaws, if incorporated, and a copy of the constitution and bylaws, if unincorporated, of such association.

Such statements shall become public records.

Code 1950, § 33-272; 1970, c. 322, § 33.1-338; 1977, c. 206; 2014, c. 805.

All papers, accounts, and records of every nature of every highway contractors' association, a member of which submits a bid for any construction, maintenance, or repair of any public highway or bridge or for the supplying of labor, material, or supplies for any such construction, repair, or maintenance, whether such highway association is domiciled in Virginia or is a foreign highway contractors' association doing business in Virginia, shall be at all times during business hours open to examination and inspection by the Governor, the Attorney General, the Comptroller, the Auditor of Public Accounts, the Board and any member thereof, and the duly authorized agent or representative of any of such officers or of the Board.

Code 1950, § 33-273; 1970, c. 322, § 33.1-339; 2014, c. 805.

If any highway contractors' association, whether domiciled in Virginia or not, on application of any person authorized by this article to examine and inspect its records, refuses to permit such examination and inspection of its papers, accounts, and records, or fails to produce at its principal office for examination and inspection any of its papers, accounts, or records when requested so to do, or knowingly withholds from examination and inspection any of its papers, accounts, and records, for the purpose of secreting any of its acts or activities or the amount or sources of or the use made of its revenue, the person requesting or making such examination and inspection shall report the fact to the Governor, who shall certify the fact to the Commissioner of Highways.

No contract for highway or highway bridge construction, repair, or maintenance or for the supplying of any labor, materials, or supplies for such construction, repair, or maintenance shall be thereafter let to any member of such association until the Governor has certified to the Board that a full examination and inspection of the papers, accounts, and records of such association has been made with the free consent and cooperation of such association and that such examination and inspection discloses nothing in the purposes, methods, or activities of such association detrimental to the public interest or tending to prevent competition in or increase the cost of highway and highway bridge construction, repair, or maintenance in the Commonwealth and that none of its revenue has been used for political purposes.

Code 1950, § 33-274; 1970, c. 322, § 33.1-340; 2014, c. 805.

If upon any such inspection or examination as is provided for in this article it is found that any highway contractors' association of which any individual, partnership, or corporation holding a contract for the construction, maintenance, or repair of any public highway or bridge or for supplying any labor, materials, or supplies for any such construction, repair, or maintenance is a member has made use of methods or engaged in activities tending to prevent competition in the bidding on such contract or to increase the cost of such contract to the Commonwealth or county or has brought to bear or endeavored to bring to bear political influence to secure for such member such contract, then the Board may, at its option, cancel and annul such contract, paying thereon for the work done or labor, material, and supplies furnished only the reasonable value of the work done or labor, material, and supplies furnished.

Code 1950, § 33-275; 1970, c. 322, § 33.1-341; 2014, c. 805.

Every individual, partnership, or corporation bidding upon any proposed contract for the construction, repair, or maintenance of any part of any public highway or bridge and for supplying any labor, material, or supplies to be used in any such construction, repair, or maintenance shall file with such bid a sworn statement giving the name and location of the principal office of every highway contractors' association of which it is or has been a member during the preceding 12 months. No bid not accompanied by such certificate shall be considered by the Board or the Commissioner of Highways in letting any contract bid upon, nor shall any such contract be let by the Board or the Commissioner of Highways to any bidder failing to file the certificate required by this section.

Code 1950, § 33-276; 1970, c. 322, § 33.1-342; 2013, cc. 585, 646; 2014, c. 805.

Every member of any highway contractors' association who bids upon any work let by the Board or the Commissioner of Highways shall file with his bid an affidavit in substance as follows: that the bidder neither directly nor indirectly has entered into any combination or arrangement with any person, firm, or corporation or entered into any agreement the effect of which is to prevent competition or increase the cost of construction or maintenance of highways or bridges.

The Board or the Commissioner or Highways shall prescribe the form of this affidavit and no bid shall be accepted unless accompanied by such affidavit.

Code 1950, § 33-277; 1970, c. 322, § 33.1-343; 2013, cc. 585, 646; 2014, c. 805.