OPINION BY Judge McCULLOUGH.

Ferguson Electric Co., Inc. (Ferguson) appeals from the September 23, 2009, order of the Board of Claims (Board), which sustained the preliminary objections filed by the Department of General Services (DGS) and dismissed Ferguson's claim for lack of jurisdiction. We affirm.

On January 14, 1994, DGS and Ferguson entered into a contract for the performance of electrical work in the construction of the state correctional institution at Houtzdale, Pennsylvania. The contract provides, among other things, that disputes arising between a contractor and DGS are to be resolved in accordance with the following three-step procedure: (1) a construction conference; (2) a pre-claim hearing, and (3) a claim filed with the Board pursuant to the Act of May 20, 1937, P.L. 728, as amended, formerly 72 P.S. §§ 4651-1—45651-10 (the Board of Claims Act). (Reproduced Record (R.R.) at 702a-04a.) This "three-tiered" dispute resolution procedure was in effect until 1998, when the Commonwealth Procurement Code (Code) was enacted.1

During the course of construction, Ferguson sought payment from DGS for the cost of additional work associated with numerous change orders. On December 5, 1996, in accordance with the contract, the parties participated in a construction conference on the outstanding change orders.2 (R.R. at 320a-36a.) At the conclusion of the conference, DGS granted Ferguson the opportunity to submit evidence of the actual costs it incurred in performing the work for each of the change orders. DGS advised Ferguson that it could not address the change orders until evidence of actual costs was submitted. (R.R. at 321a-22a.)

By letter dated September 12, 1997, DGS informed Ferguson that DGS had not yet received any additional information and asked Ferguson to confirm that it still intended to submit evidence of actual costs. (R.R. at 338a.) Ferguson did not respond to the correspondence and did not submit any additional evidence. Believing that it was Ferguson's responsibility to advance its own claim, DGS did not make a second request for additional evidence or initiate any further communication with Ferguson.

Ferguson took no action for approximately five years. Then, on May 20, 2002, Ferguson submitted a claim to DGS, which included a demand for payment of the change orders. (R.R. at 346a—58a.) By letter dated May 24, 2002, DGS returned the claim to Ferguson's legal counsel, explaining that the claim should have been filed with the Board, and not DGS. However, Ferguson did not file the claim with the Board; instead, via a series of letters in 2002, Ferguson ultimately informed DGS that it wished to resolve this matter in accordance with the procedures established by the Code. Ferguson promised to provide DGS with supporting documentation but never did.3 (R.R. at 363a, 364a, 371a, and 475a.) On October 1, 2003, Ferguson filed a Right-to-Know Act4 request with DGS demanding the production of numerous documents related to the construction project.5 (R.R. at 373a-75a.)

Approximately five years later, on April 23, 2007, Ferguson sent a letter to DGS, asking it to schedule a construction claims conference. By letter dated August 1, 2007, and sent certified mail, DGS responded as follows:

(R.R. at 377a.) (Emphasis added.) On August 15, 2007, Ferguson sent a letter to DGS, objecting to the rejection of its claims and requesting another construction conference. (R.R. at 476a.) DGS did not respond.

On March 12, 2008, Ferguson filed a claim with the Board, which contained counts for breach of contract, unjust enrichment, and quantum meruit. Ferguson averred that its total damages on the construction project were $1,607,415.90. The claim was filed more than seven months, approximately 224 days, after DGS's August 1, 2007, letter.

In response, DGS filed preliminary objections to the claim asserting: (1) lack of jurisdiction; (2) insufficient specificity of the pleading; (3) legal insufficiency of the pleading; and (4) failure to exhaust a statutory remedy.

The Board conducted evidentiary hearings on November 5, 2008, and December 4, 2008. After review, the Board found that DGS's August 1, 2007, letter constituted definitive and affirmative notice to Ferguson that its claim would not be paid. Applying section 1712.1 of the Code, the Board concluded that Ferguson's March 12, 2008, claim was untimely filed, and, therefore, the Board lacked jurisdiction. Accordingly, the Board sustained the preliminary objection regarding lack of jurisdiction and dismissed Ferguson's claim.6

On appeal to this Court,7 Ferguson first contends that the Board erred as a matter of law by determining that its claim accrued on August 1, 2007. Under the 1998 and 2002 versions of the Code, as well as the repealed Board of Claims Act, the limitation period on a claim commences when it "accrues." A claim accrues when (1) a claimant is first able to litigate his or her claim, e.g., when the amount due under the claim is known and the claimant is capable of preparing a concise and specific written statement detailing the injury, and (2) the claimant is affirmatively notified that he or she will not be paid by the Commonwealth. Darien Capital Management, Inc. v. Public School Retirement System, 549 Pa. 1, 700 A.2d 395 (1997). The denial of a claim must be unequivocal, id., and both prongs of the Darien test must be satisfied before a claim may be considered to have accrued. Knorr.

Ferguson argues that the August 1, 2007, letter from DGS did not affirmatively and unequivocally deny any of its claims because the letter does not expressly state that the claims would not be paid. In its August 1, 2007, letter, DGS unequivocally stated that Ferguson waived its right to pursue its claim. While DGS did not use the words "will not be paid" or "denied," the clear import of the letter is that Ferguson would not be paid. Ferguson recognized this in the August 15, 2007, letter, stating that it was inappropriate for DGS to "blindly reject" the claims. (R.R. at 476a.) Further, the August 1, 2007, letter was DGS's final response to Ferguson's intermittent attempts to receive payment from DGS for the change orders.

Ferguson argues that this case is controlled by Knorr, where the Court determined that a letter issued by an agency did not contain a final and unequivocal denial of the appellant's claim. However, in contrast to the facts here, the letter at issue in Knorr was not a clear and unequivocal statement that the appellant's claim would not be paid, but rather was merely a summary of the problems experienced on the construction project and a request for additional information. Also, while the Court observed that the agency's letter lacked language stating that it was a final decision and informing the contractor that it had a right to appeal, Knorr did not hold that such language is mandatory.

Moreover, the record reflects that Ferguson was capable of preparing a concise and specific written statement detailing the injury as early as May 20, 2002, when Ferguson submitted a claim to DGS that set forth the details of its alleged losses and demanded specific amounts of money. (R.R. at 347a-58a.) Also, by letter dated April 23, 2007, Ferguson informed DGS that it had hired an expert and prepared documentation to support its entitlement to additional funds. (R.R. at 376a.) Therefore, we conclude that Board correctly determined that Ferguson's claim accrued on August 1, 2007.

Next, Ferguson contends that the Board erred by applying section 1712.1 of the Code to this dispute, instead of the three-tier procedure set forth in the parties' contract, to determine that its claim was untimely. However, the record reflects that the parties did initially follow the three-tier procedure, but that process was suspended following the 1996 construction conference in order to allow Ferguson to submit evidence of the actual costs it incurred in performing the work for change orders. The suspension became perpetual due to Ferguson's failure to submit any additional evidence. During this protracted period, the General Assembly enacted the Code and changed the procedure for enforcing a contract claim. Importantly, the record reveals that Ferguson informed DGS that Ferguson wished to proceed in accordance with the new procedure established by the Code. Ferguson's counsel confirmed this by letter dated August 7, 2002:

(R.R. at 475a.)

Also, the General Assembly included a provision in the 2002 amendments to the Code regarding the applicability of the statute to unresolved claims. Section 21.2 of Act 142 of 20028 provides as follows:

(Emphasis added.) Because Ferguson's claim did not accrue until August 1, 2007, long after the effective date of Act 142, it follows that the Code, as amended in 2002, applies to the instant dispute even though the contract was executed in 1994.9

Moreover, we observe that Ferguson's claim was untimely filed regardless of whether we apply the 1998 or 2002 version of the Code. Under those statutes, the maximum possible time period from the date the claim is submitted to the contracting officer to the date the claim is filed with the Board is 150 days and 135 days respectively. The record demonstrates that Ferguson's claim was filed approximately 224 days after its claim accrued on August 1, 2007, and approximately 210 days from August 15, 2007, when Ferguson informed DGS that it objected to the rejection of its claims and requested another construction conference. Thus, the claim was filed far beyond the time limits permitted by either the 1998 or 2002 versions of the Code.

Ferguson next argues that, under the Contract Clauses of the Constitutions of the United States and the Commonwealth of Pennsylvania, the enactment of the Code cannot alter the terms of the parties' pre-existing contract. However, the record indicates that Ferguson agreed to amend the terms of the contract by seeking resolution of this dispute under the Code. We also note that Ferguson had ample opportunity following the 1996 construction conference to submit additional data and pursue its claims under the provisions of the contract, but did not do so.

Ferguson also contends that the Board erred by determining on preliminary objections that the statute of limitations had expired, because the statute of limitations is an affirmative defense and must be raised in new matter. While this observation is true, a party is required to file preliminary objections to preliminary objections challenging this procedural irregularity, and the failure to do so waives the right to object to the form of the pleading. Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 415 A.2d 53 (1980); Stilp v. Commonwealth, 910 A.2d 775 (Pa. Cmwlth.2006). Ferguson did not file preliminary objections to DGS's preliminary objections on the ground that DGS improperly raised this affirmative defense. Hence, Ferguson waived the right to object that the statute of limitations was raised in an improper manner. Duquesne Slag Products; Stilp. Moreover, the record reveals that DGS raised preliminary objections asserting lack of jurisdiction, Pa. R.C.P. No. 1028(a)(1), and failure to exhaust administrative remedies, Pa. R.C.P. No. 1028(a)(7). These objections involved questions of fact and, consistent with Pa. R.C.P. No. 1028(b)(2), the Board conducted evidentiary hearings and created a substantial record. Based on that record, the Board properly determined that it lacked jurisdiction and that Ferguson's claims should be dismissed. We find no error in this procedure.

Ferguson further contends that DGS is equitably estopped from asserting the six-month limitation period under sections 1712 and 1712.1 of the Code, relying upon the rationale in Department of Public Welfare v. UEC, Inc., 483 Pa. 503, 397 A.2d 779 (1979), where the Supreme Court articulated the following:

Id., 483 Pa. at 513-14, 397 A.2d at 784 (emphasis added).

The Board concluded that the situation here was not at all analogous to UEC. Rather, the Board found that DGS did not engage in any fraud or concealment, deception, or misrepresentation that lulled Ferguson into a false sense of security regarding the necessity for initiating legal action; nor did DGS assure Ferguson that it would be paid. The Board explained as follows:

Board's Decision at 34-35 (citations omitted) (footnote omitted). The Board correctly analyzed UEC, and the Board's findings and rationale are amply supported by the record. Therefore, we conclude that this issue is without merit.

Finally, Ferguson contends that the Board erred by dismissing its claim, when it is undisputed that DGS is holding a contract balance in the amount of $54,221.80 and that Ferguson is entitled to compensation for the change orders. However, even assuming for the sake of argument that Ferguson has a meritorious claim against DGS, the Board properly found that the claim was untimely and that the Board lacked jurisdiction. When a claim is untimely and the Board lacks jurisdiction, the Board cannot adjudicate the merits of the underlying claim. Department of Public Welfare v. Shapiro, 91 Pa.Cmwlth. 64, 496 A.2d 887 (1985). Therefore, this contention must fail.

Accordingly, the Board's order is affirmed.

ORDER

AND NOW, this 1st day of July, 2010, the September 23, 2009, order of the Board of Claims is hereby AFFIRMED.