                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


AFCON, INCORPORATED, an Ohio           
corporation,
                Plaintiff-Appellant,
                 v.                             No. 02-1914

BELL BCI COMPANY,
              Defendant-Appellee.
                                       
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
               Leonie M. Brinkema, District Judge.
                          (CA-02-80-A)

                       Argued: May 9, 2003

                      Decided: May 27, 2003

       Before NIEMEYER and MOTZ, Circuit Judges, and
    Joseph R. GOODWIN, United States District Judge for the
     Southern District of West Virginia, sitting by designation.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Peter Daniel Welin, THOMPSON HINE, L.L.P., Colum-
bus, Ohio, for Appellant. Richard O’Shea Wolf, MOORE & LEE,
L.L.P., McLean, Virginia, for Appellee. ON BRIEF: Scott A. Har-
vey, THOMPSON HINE, L.L.P., Washington, D.C., for Appellant.
Charlie C.H. Lee, MOORE & LEE, L.L.P., McLean, Virginia, for
Appellee.
2                 AFCON, INC. v. BELL BCI COMPANY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   In this diversity contract dispute, the general contractor on a con-
struction project, Bell, BCI Company, enlisted the services of Afcon,
Inc., to do work originally undertaken by another subcontractor. Dis-
satisfied with the amount received in payment from Bell, Afcon sued
Bell for breach of contract and unjust enrichment. The district court
granted summary judgment to Bell. We affirm.

                                   I.

   In July and August, 1999, Bell entered into two contracts with the
Alexandria Sanitation Authority of Alexandria, Virginia, to serve as
the general contractor for improvements to the city’s wastewater
treatment plant. Shortly thereafter, Bell entered into four written sub-
contracts with R&R Geo-Construction, Inc. in connection with the
sanitation contracts. A few months later, R&R informed Bell that it
could not perform its obligations under the four subcontracts. Shortly
thereafter, Bell entered into discussions with Afcon.

   On November 15, 1999, Afcon sent a letter to Bell that offered to
provide the sheeting and shoring work covered by two of the four
R&R subcontracts and to split profits arising from that work, 30% to
Bell, 70% to Afcon. On November 23, 1999, Bell responded by send-
ing Afcon an "Agreement Outline," which states that "[a]s Bell is con-
sidering entertaining a contract with Afcon for . . . the following must
be provided and considered prior to agreement;" the list includes vari-
ous terms such as rates and applicability for per diems, insurance, etc.
The Agreement Outline also states that "Supplement A previously
written for each contract will apply in its entirety." "Supplement A"
was an attachment to the original R&R subcontracts, which contains
a number of requirements, including that the subcontractor furnish a
payment and performance bond.
                  AFCON, INC. v. BELL BCI COMPANY                     3
   On November 29, 1999, Afcon replied to Bell’s Agreement Out-
line. Afcon’s response provided various rates and per diem amounts,
described an insurance arrangement, and stated that "[d]ue to unusual
circumstances, the contract clauses are to delete any reference to
Bond, liquidated damages or any punitive damages to Afcon, Inc."
Bell never responded to the November 29 letter. On December 1,
1999 Afcon sent two letters to Bell proposing to furnish all labor,
equipment and materials to install the sheeting and shoring systems
covered by two of the four R&R subcontracts. Afcon acknowledges
that Bell never accepted the terms of these letters.

   On January 8, 2000, Afcon wrote still another letter to Bell discuss-
ing arrangements for performing the piling work covered by the
remaining two R&R subcontracts. This letter stated that Afcon had
arranged to work with WM Brode Co. for pile driving, and noted
"that another local piling contractor has been brought in the picture."
Afcon concedes that Bell never accepted the January 8th proposal.
Instead, Bell wrote Afcon that its submission was not in the proper
format and instructed Afcon to resubmit its bid. Afcon resubmitted its
proposal, to which Bell did not respond. Sometime thereafter Bell
entered into a contract with another subcontractor, Midlantic Piling,
Inc. to perform some of the work covered by the original piling con-
tracts.

   Beginning sometime on or before November 15, 1999, Afcon per-
formed sheeting and shoring work on the Project. Afcon sent weekly
forms entitled "reimbursement" to Bell, detailing labor costs, per
diem expenses, and overhead expenses incurred in performing this
work. Bell regularly paid Afcon all of the requested amounts. Afcon
contends that it also submitted monthly pay requests to Bell "indicat-
ing percentages of work completed pursuant to a schedule of values
for the sheeting and shoring work." Afcon further asserts that "these
pay requests indicated the amount due on a percentage complete basis
against the total subcontract amounts, less the amount of wage
advances, expense advances, overhead advances, material expenses
and equipment charges." However, Afcon did not produce any
monthly statements substantiating this contention.

  On August 16, 2000, after the sheeting and shoring work had been
completed, Afcon submitted a final invoice to Bell indicating an
4                 AFCON, INC. v. BELL BCI COMPANY
amount due based on the R&R subcontract amounts. Bell refused to
pay the amount listed on this final invoice.

   On January 15, 2001, Afcon sued Bell, alleging inter alia unjust
enrichment and breach of contract. The district court granted sum-
mary judgment to Bell, finding that it had paid Afcon the fair value
of all services rendered by Afcon and the parties had never agreed
upon a contract. Afcon timely appealed.

                                  II.

   Because Bell paid all amounts charged by Afcon for labor costs,
per diem costs, and overhead expenses in connection with the sheet-
ing and shoring work Afcon performed, the district court correctly
held that Afcon’s quantum meruit claim fails.

   Afcon’s contract claim requires a bit more discussion. Afcon con-
tends that Bell breached a contract to pay it on the same terms as
Bell’s original contract with R&R. Under Virginia law, which the par-
ties agree applies here, "[u]ntil the parties have a distinct intention
common to both and without doubt or difference, there is a lack of
mutual assent and, therefore, no contract." Persinger & Co. v. Lar-
rowe, 477 S.E.2d 506, 509 (Va. 1996). While "the law imputes to a
person an intention corresponding to the reasonable meaning of his
words and acts," Marefield Meadows, Inc. v. Lorenz, 427 S.E.2d 363,
365 (Va. 1993) (internal quotation marks and citation omitted), "[i]n
the absence of circumstances from which an acceptance may be
implied, an acceptance will not be presumed from a mere failure to
decline a proposal." Boone v. Standard Accident Ins. Co., 66 S.E.2d
530, 535 (Va. 1951) (citations omitted); see also Andrews Large &
Whidden, Inc. v. Capman & Wood, Inc., 37 Va. Cir. 251, 254-5
(1996) (citing Boone for same proposition).

   Applying these principles to the facts at hand inevitably leads to
the conclusion that the parties never entered into a contract. Indeed,
during his deposition, Atul Gupte, the sole owner of Afcon, admitted
facts that preclude finding a contract between Bell and Afcon. Gupte
conceded that as of November 23, Bell and Afcon had not reached an
agreement on the terms of Afcon’s work. Gupte also admitted that
Bell never responded to Afcon’s letter of November 29 or accepted
                  AFCON, INC. v. BELL BCI COMPANY                    5
the terms of Afcon’s December 1 letters. Finally, Afcon’s January 8
letter constitutes an offer, for which there is no evidence of accep-
tance by Bell. For these reasons, we agree with the district court that
Afcon has failed to offer any evidence from which a reasonable jury
could conclude that Afcon entered into a contract with Bell.

                                 III.

  Accordingly, the judgment of the district court is

                                                         AFFIRMED.
