UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

YATES CONSTRUCTION COMPANY,
INCORPORATED,
Plaintiff-Appellant,

v.

FAIRFAX COUNTY WATER AUTHORITY,                                     No. 96-1946
Defendant-Appellee,

and

AMERICAN CAST IRON PIPE COMPANY,
Third Party Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-95-1449-A)

Argued: May 7, 1997

Decided: June 19, 1997

Before RUSSELL and HALL, Circuit Judges, and
TRAXLER, United States District Judge for the
District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Timothy Francis Brown, WATT, TIEDER & HOFFAR,
L.L.P., McLean, Virginia, for Appellant. Stuart A. Raphael, HUN-
TON & WILLIAMS, McLean, Virginia, for Appellee. ON BRIEF:
Robert G. Watt, Thomas J. Powell, WATT, TIEDER & HOFFAR,
L.L.P., McLean, Virginia, for Appellant. Thomas J. Cawley, HUN-
TON & WILLIAMS, McLean, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Yates Construction Company, Inc., appeals the district court's
order granting summary judgment to the Fairfax County Water
Authority in Yates' contract action. We affirm.

I

In 1989, the Authority contracted with Yates for the installation of
11,385 feet of water pipeline. This $4,000,000 contract set a comple-
tion date of March 14, 1990. Because of various delays, the project
was not completed until February 17, 1992. In an August 18, 1989,
letter complaining of one such delay caused by the Authority's failure
to obtain an easement, Yates noted that the Authority

          should expect that we will request that we be compensated
          for extra costs due to such delays. At this time, we do not
          know that extent of the delays to the project or the amounts
          of any associated costs, when such has been determined, the
          information will be communicated to you.

However, during the construction of the pipeline, only one specific
claim -- $10,490 in increased costs for leasing a Komatsu excavator
-- was made for damages arising out of a delay attributable to the
Authority.

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On September 5, 1991, nine months after beneficial use was
achieved, Yates submitted a detailed request for some $494,000 in
extra costs, primarily for additional work. Only a single delay claim
-- the Komatsu excavator claim -- was included. On September 16,
1991, Yates wrote that it was "computing damages for delays over
and above those costs submitted for additional work."

Almost four years later, in April, 1995, Yates made an administra-
tive claim for an additional $2,492,783, which comprises the
$494,000 in the 1991 claim, plus $2,000,000 for delay-related costs.1
After the claim was denied administratively, Yates filed this diversity
action. The district court granted summary judgment to the Authority
on Yates' delay claims on the ground that the contract required that
notice be given within five days of the event giving rise to the claim
and that substantiation of the claim be submitted within twenty days
thereafter. Yates appeals.

II

The Virginia Public Procurement Act, Va. Code Ann.§ 11-35 et
seq. (Michie 1993), applies to contracts between public entities and
private companies. Subsection 11-69(A) provides:

           Contractual claims, whether for money or other relief, shall
           be submitted in writing no later than sixty days after final
           payment; however, written notice of the contractor's inten-
           tion to file such claim shall have been given at the time of
           the occurrence or beginning of the work upon which the
           claim is based. Nothing herein shall preclude a contract
           from requiring submission of an invoice for final payment
           within a certain time after completion and acceptance of the
           work. . . . Pendency of claims shall not delay payment of
           amounts agreed due in the final payment.
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1 Va. Code § 11-69(B) requires that public bodies "include in [ ] con-
tracts a procedure for the consideration of contractual claims" by an
administrative body prior to filing a court action. Yates' delay claims
were denied administratively because they were filed too late, which is
the same basis of the district court's ruling.

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Yates' argument is that the sixty days is the only limit on when
claims can be filed and, inasmuch as final payment was never
received prior to the 1995 claim,2 this 60-day period had not even
begun to run. The Authority argues that the 60-day limit is akin to a
statute of repose that establishes an absolute point beyond which no
claims whatsoever can be filed, but that it is no bar to other agreed
upon limits. Moreover, the Authority contends that Yates never gave
notice of its intent to claim anything approaching $2,000,000 in delay
damages prior to the 1995 claim. The district court agreed with the
Authority.3

The focus of the appeal is the legal validity of the contractual 25-
day claim period. It is clear that a party cannot waive provisions that
are specifically set out in the Act. See Schlosser v. Board of
Supervisors, 428 S.E.2d 919 (Va. 1993) (dispute mechanism set out
in Act requires disinterested person to hear appeals, and private con-
tractor could not contract with the county to have his administrative
appeal heard by county executive). Yates' statutory interpretation
arguments fail to convince us that the legislature intended that the 60-
day limit be the expression of a specific and unalterable policy that
preempts all other time limits regarding the filing of claims.

The Public Procurement Act embodies important policy consider-
ations designed to protect both private contractors and public agen-
cies. If a contractor has claims he intends to make, it makes perfect
sense to require that the agency be informed about them early on so
that the agency can mitigate future damages. The Virginia Supreme
Court has recognized that the Act's time limits can be modified by
agreement. See Board of Supervisors v. Sampson , 369 S.E.2d 178,
180 (Va. 1988) ("Parties to a contract may agree that a claim under
the contract must be enforced within a shorter time limit than that
fixed by statute if the contractual provision is not against public pol-
icy and if the agreed time is not unreasonably short.").
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2 The Authority was retaining $111,000 from final payment to cover
claims it had against Yates.
3 Yates' complaint contained other claims that were eventually settled
prior to this appeal being filed. The Komatsu excavator claim was
included in the settlement.

                    4
Additional support for the Authority's position can be found in the
legislative history of the Act. For example, the Advisory Committee
noted that "[t]he emphasis in the legislation is upon prompt identifica-
tion and disposition of contractual claims. For that reason, the legisla-
tion requires submission of claims no later than 60 days after final
payment." Office of the Sec'y of Admin. & Finance, Final Report:
Virginia Procurement Law Study (Nov. 1, 1980). Neither the terms of
§ 11-69(A) itself nor the policies underlying the Act foreclose all
other time limits upon which the parties might agree.

Yates' backup argument is that twenty-five days is an unreasonably
short period in which to substantiate delay claims because the full
cost of a given delay is often not calculable until after the project is
completed. The contractual limits, however, do not require precision.
Here, we have a four-year period between the last delay-related event
and the first notice of the disputed delay claims. Yates does not con-
tend that it needed all that time to compute its claims, and, while
twenty-five days might be unreasonably short in a given setting or
with respect to a particular claim, there has been no such showing in
this case.

The judgment below is affirmed.

AFFIRMED

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