PRIOR HISTORY: [***1]

Appeal by respondent from judgment of the North Carolina Board of State Contract Appeals entered 18 July 1985.

Reversed.

OVERVIEW: The Administrator based his denial of the contractor's claim on the lack of a "changed conditions" provision in its contract with the State, apparently resolving the claim alleging breach of contract or alteration of plans. Pursuant to N.C. Gen. Stat. § 136-29(b) (1981), the contractor could file suit against the Administrator only as to such portion of the claim as was denied. The amended version of the statute, N.C. Gen. Stat. § 143-135.16(c) (Cum. Supp. 1985), did not permit the contractor to rely upon any grounds for relief on appeal that were not set forth specifically in his notice of appeal filed with the Board. In overturning the Board's decision, the court found that the contractor failed to set forth in its appeal notice any intent to pursue a theory of breach of contract or alteration of plans. Such a strict reading was in accordance with the principle of retaining to the State all sovereign immunity not expressly waived. The court held that the same standards should apply to the appeal to the Board as would have applied had the contractor filed suit. To hold otherwise would have expanded the contractor's rights against the State's sovereign immunity.

OUTCOME: The court reversed the Board's decision.

Attorney General Lacy H. Thornburg, by Assistant Attorneys General Thomas H. Davis, Jr. and Evelyn M. Coman, for the Department of Transportation.

C. Thomas Ross for petitioner-appellee.

Wells, Judge, wrote the opinion. Chief Judge Hedrick and Judge Martin concur.

WELLS

[*647] [**854] In its first argument, the DOT contends that the Board erred by failing to dismiss Thompson-Arthur's claim for lack of subject [**855] matter jurisdiction and failure to state a claim upon which relief can be granted. DOT argues that Thompson-Arthur changed both the theory and the substance of the claim after the claim was denied by the Administrator and that these changes divested the Board of jurisdiction to hear the appeal.

It is an established principle of jurisprudence, resting on grounds of sound public policy, that [HN1] a state may not be sued in its own courts or elsewhere unless it has consented by statute to be sued or has otherwise waived its immunity from suit. Smith v. Hefner, 235 N.C. 1, 68 S.E. 2d [***6] 783 (1952); Mattox v. State, 21 N.C. App. 677, 205 S.E. 2d 364 (1974). By application of this principle, a subordinate division of the state or an agency exercising statutory governmental functions may be sued only when and as authorized by statute. Smith v. Hefner, supra. Waiver of sovereign immunity may not be lightly inferred and statutes waiving this immunity, being in derogation of the sovereign right to immunity, [*648] must be strictly construed. Guthrie v. State Ports Authority, 307 N.C. 522, 299 S.E. 2d 618 (1983).

The sole statutory grounds that allow suit against the State Highway Administrator are provided in N.C. Gen. Stat. § 136-29 (1981). See In re Huyck Corp. v. Mangum, Inc., 309 N.C. 788, 309 S.E. 2d 183 (1983). That statute reads, in pertinent part, as follows:

(a) Upon the completion of any contract for the construction of any State highway awarded by the Department of Transportation to any contractor, if the contractor fails to receive such settlement as he claims to be entitled to under his contract, he may . . . submit to the State Highway Administrator a written and verified claim for such amount as he deems himself entitled to [***7] under the said contract setting forth the facts upon which said claim is based. In addition, the claimant, either in person or through counsel, may appear before the State Highway Administrator and present any additional facts and argument in support of his claim. . . .

(b) As to such portion of the claim as is denied by the State Highway Administrator, the contractor may, within six (6) months from receipt of said decision, institute a civil action for such sum as he claims to be entitled to under said contract by the filing of a verified complaint and issuance of summons in the Superior Court of Wake County or in the superior court of any county wherein the work under said contract was performed. The procedure shall be the same as in all civil actions except as herein and as hereinafter set out.

(c) All issues of law and fact and every other issue shall be tried by the judge, without a jury. . . .

A case similar to the one sub judice is Bridge Co. v. Highway Comm., 30 N.C. App. 535, 227 S.E. 2d 648 (1976). In that case, the contractor had presented its claim to the Administrator on the theory that the Department of Transportation had misrepresented the moisture [***8] content of the soil below the site and the claim was denied on the basis that there was no misrepresentation. At trial, the court agreed with this decision on the same basis. The contractor argued on appeal that the statute provided for a trial de novo and therefore the trial court should have considered the [*649] contractor's claim on the additional theories of changed conditions, extra work or reclassification of materials. This Court held that the contractor could sue the Commission only in the manner provided by the statute and was therefore bound by the theory of the claim brought before the Commission. Bridge Co. v. Highway Comm., supra. The words of the statute that call for this conclusion are that the contractor may sue the Administrator "[a]s to such portion of the claim as is denied." G.S. 136-29(b). This strict reading is in accordance with the principle of retaining to the State all sovereign immunity that is not expressly waived.

In 1983 the Legislature [HN2] amended the statute to allow appeal of the Administrator's decision to the Board of State Contract [**856] Appeals in lieu of instituting a civil action in superior court. N.C. Gen. Stat. § [***9] 136-29(c1) (Cum. Supp. 1985). DOT argues that the same standards should apply to Thompson-Arthur's appeal to the Board as would have applied had Thompson-Arthur filed suit in superior court. We agree. Though the statute terms the Board an alternative to civil suit, the claim allowed to the Board is nevertheless a waiver of sovereign immunity, the terms of which are to be strictly construed. By this logic we apply the same restrictions on maintaining a claim to the Board as those for a claim to superior court, for there is no language, express or implied, that the creation of this alternative was to expand the substantive rights of the contractor against the sovereign immunity of the State.

To the same effect, the language of N.C. Gen. Stat. § 143-135.16(c) (Cum. Supp. 1985) is very strict: "The appellant shall not be permitted to rely upon any grounds for relief on appeal which were not set forth specifically in his notice of appeal filed with the Board." Though the Administrator based his denial of Thompson-Arthur's claim on the lack of a "changed conditions" provision in the contract, Thompson-Arthur did not set forth in its appeal notice any intent to pursue theories of equitable [***10] adjustment, extra work, breach of contract or alteration of plans; this last provision the one upon which the Board apparently based its award.

As we reverse the Board's decision on the grounds set forth above, we do not find it necessary to address DOT's remaining contentions.

[*650] Reversed.