                                 CODE OF VIRGINIA

PUBLIC CONSTRUCTION CONTRACT PROVISIONS BARRING DAMAGES FOR UNREASONABLE DELAYS
DECLARED VOID (§ 2.2-4335)

A. Any provision contained in any public construction contract that purports to
waive, release, or extinguish the rights of a contractor to recover costs or
damages for unreasonable delay in performing such contract, either on his behalf
or on behalf of his subcontractor if and to the extent the delay is caused by
acts or omissions of the public body, its agents or employees and due to causes
within their control shall be void and unenforceable as against public policy.

B. Subsection A shall not be construed to render void any provision of a public
construction contract that:

   1. Allows a public body to recover that portion of delay costs caused by the
   acts or omissions of the contractor, or its subcontractors, agents or
   employees;

   2. Requires notice of any delay by the party claiming the delay;

   3. Provides for liquidated damages for delay; or

   4. Provides for arbitration or any other procedure designed to settle contract
   disputes.

C. A contractor making a claim against a public body for costs or damages due to
the alleged delaying of the contractor in the performance of its work under any
public construction contract shall be liable to the public body and shall pay it
for a percentage of all costs incurred by the public body in investigating,
analyzing, negotiating, litigating and arbitrating the claim, which percentage
shall be equal to the percentage of the contractor&#8217;s total delay claim
that is determined through litigation or arbitration to be false or to have no
basis in law or in fact.

D. A public body denying a contractor&#8217;s claim for costs or damages due to
the alleged delaying of the contractor in the performance of work under any
public construction contract shall be liable to and shall pay such contractor a
percentage of all costs incurred by the contractor to investigate, analyze,
negotiate, litigate and arbitrate the claim. The percentage paid by the public
body shall be equal to the percentage of the contractor&#8217;s total delay
claim for which the public body&#8217;s denial is determined through litigation
or arbitration to have been made in bad faith.

HISTORY: 1991, c. 701, § 11-56.2; 2001, cc. 324, 844.