HomeMy WebLinkAboutAGENDA REPORT 1987 1202 CC REG ITEM 11BJOHN GALLOWAY
Mayor
ELOISE BROWN
Mayor Pro Tern
CLINT HARPER, Ph.D.
Councilmember
JOHN PATRICK LANE
Councilmember
MAUREEN W. WALL
City Clerk
THOMAS P. GENOVESE
City Treasurer
TO:
FROM:
DATE:
SUBJECT:
MOORPARK ITEM, iiR
MEMORANDUM
STEVEN KUENY
City Manager
CHERYL J. KANE
City Attorney
PATRICK RICHARDS, A.I.C.P.
Director of
Community Development
R. DENNIS DELZEIT
City Engineer
JOHN V. GILLESPIE
Chief of Police
The Honorable City Council
Thomas P. Genovese, Deputy City Manager
November 25, 1987
Item 11.B. of the December 2, 1987 City Council Agenda
As the City Council is aware, this item, Award of Contract Moorpark City
Hall Project, was continued to the December 2, 1987 agenda. City staff is
currently compiling the information requested by the City Council regarding
the subcontractors list of the bid document. It is anticipated that this
information along with a project budget /funding detail will be available for
distribution on Monday, November 30, 1987.
799 Moorpark Avenue Moorpark, California 93021 (805) 529 -6864
//4/ /97.
MOORPARK
CLINT HARPER,Ph.D. STEVEN KUENY
Mayor City Manager
ELOISE BROWN � CHERYL J. KANE
Mayor Pro Tern City Attorney
THOMAS C. FERGUSON t /113° PATRICK RICHARDS,A.I.C.P.
Councilmember �/' Director of
1t /A14% Community Development
JOHN GALLOWAY a
Councilmember ° / m R. DENNIS DELZEIT
JOHN PATRICK LANE City Engineer
4` 'y� JOHN V.GILLESPIE
Councilmember
MAUREEN W.WALL Chief of Police
City Clerk THOMAS P.GENOVESE
City Treasurer
MEMORNDUMA
T O : The Honorable City Council
F ROM : Thomas P. Genovese, Deputy City Manage
DATE : December 1 , 1987
SUBJECT : Award of Contract - Moorpark City Hall Project
Background
On November 23 , 1987 , the City Council reviewed the bids received
on November 12 , 1987 for the Moorpark City Hall project. Attached
as Exhibit A is the report transmitted at the November 23, 1987
City Council meeting. As indicated in the November 23 report,
the City received three (3) bids for the project, with the lowest
bid being received from Burns-Pacific Construction.
As the City Council is aware, the Moorpark City Hall project was
bid with alternates to accommodate any receipt of bids in excess
of the construction estimates or funding available. Listed below
are the four (4) alternate bids and the respective amounts associated
with each alternate as submitted by the three (3) bidders on the
project.
Item Item Description Burns-Pacific D. I.A.L. Parton &
Construction Services Edwards
Amount Amount Amount
1 . Complete building $463 , 625 . $524 , 972 . $536 , 652 .
as described in
plans and specs
(City Hall and
conference room)
2 . City Hall and $461 , 000 . $523 , 000 . $530 , 852 .
conference room. No
trellis over walkway.
799 Moorpark Avenue Moorpark, California 93021 (805) 529-6864
MEMO to Honorable City Council Page Two
From: Thomas P. Genovese
Date: December 1 , 1987
Subj : Award of Contract - Moorpark City Hall Project
3 . City Hall; no $445 , 000 . $505, 000 . $506 , 447 .
conference room
or trellis .
4 . City Hall ; no $423 , 000 . $487 , 000 . $489 , 517 .
confernce room,
trellis , landscape
or irrigation.
Review
During the review of the bids for consideration of award, the
Council expressed concern regarding the subcontractors ' list and
the City' s ability to control the makeup or changes in such list .
Upon the request of the Council , City Staff has proceeded to :
1) research the ability of the City to control the subcontractors
list and 2) verify the subcontractors list for license and
complaint status .
1 . In review of the California Government Code regarding the
Subletting and Subcontracting Fair Practices Act , the Contractor
is required to list all subcontractors who perform portions
of the work which are in excess of one-half of one percent
of the total bid. Exhibit B indicates the subcontractors
lists submitted by the three bidders of the Moorpark City Hall
project. From the list submitted, the prime contractor cannot
substitute any person as a subcontractor in place of the sub-
contractor listed in the original Bid without the consent of
the Agency. Although the City cannot specify the subcontractor
to be chosen, the City may reject the substitution. Attached
as Exhibit C are the sections of the California Government
Code applicable to the Subletting and Subcontractors Fair
Practices Act.
2. Listed below are the subcontractors listed on the low bid
received from Burns-Pacific Construction. Identified are the
contractors license number and those subcontractors listed
on the subcontractors list of other project bidders (identified
by asterisk) . No contractor on the list has a bond filed
against it.
Subcontractor License No. Work Performed
* Plantica Landscape Corp. 419516 Landscape & Irrigation
Penco Fire Protection 482354 Fire Protection
* Center Glass 244559 Glass & Glazing
* R. P. Richards 199946 HVAC, Sheet Metal, Plumbing
* A & H Steel Fabricators 228324 Structural Steel
* Channel Island Roofing 395828 Roofing
R. H. Ness Electrical 433206 Electrical
M & M Lathing, Inc. 356077 Lath & Plaster
J & E Painting Services 507567 Painting
4
• h I
MEMO to Honorable City Council Page Three
From: Thomas P. Genovese
Date: December 1 , 1987
Subj : Award of Contract - Moorpark City Hall Project
Project Funding and Budget
As previously expressed to the City Council in this Memorandum,
the Moorpark City Hall Project was bid with alternatives to
accommodate any bids in excess of the construction estimate or
funding available. As indicated in the budget analysis explained
below, the City has expended approximately $40, 000 . to date for
the preparation of all plans and specifications . Of this $40, 000 . ,
approximately $35 , 500 . was expended last fiscal year and the
balance expended this fiscal year.
The current estimated balance of funds available for the project
as of January 1 , 1988 is $520, 818. This estimated balance includes
interest accrued to January 1 , 1988 on the July 1 , 1987 balance
minus any expenditures or anticipated encumbrances to this date.
The project costs anticipated for the project total $520, 579 .
which includes a 7% contingency for any change orders and related
items such as construction staking and computer cabling. Also
included in the project cost are expenses for contractual services
such as construction supervision and inspection.
Costs not included in the total project cost are items such as
furniture or the acquisition of a new telephone system. It is
anticipated at this time that the telephone system may be leased
and should any furnishings be acquired, the general fund may
need to be utilized if the City Hall Construction fund were to be
depleted.
Funds Available
Funds Available as of $544 , 418
July 1 , 1986 (with all
interest and transfers
accounted for)
Expenditures Fiscal Year 86/87 35 , 533 .
July 1 , 1987 Balance $508 , 885 .
Interest to Jan. 1 , 1988
@ . 065 - interest factor on
balance of $508, 885 . 16 , 539 .
Expenses to date for Fiscal Year 87/88 4 , 606 .
Revenue for 1987/88 Fiscal Year 11 , 933.
minus expenses for 1987/88 Fiscal
TOTAL FUNDS AVAILABLE FOR PROJECT $520 , 818 .
Project Costs
Contract Amount $463 , 625 .
Contingency 7% 32, 554 .
Contractual Services (Contract Admin/Insp) 24 , 500 .
TOTAL PROJECT COST $520 , 679
4
• k 1
MEMO to The Honorable City Council Page Four
From: T. P. Genovese
Date: December 1 , 1987
Subj : Award of Contract - Moorpark City Hall Project
Summary
As indicated previously in this memorandum, the project was bid
with alternates to allow for cutbacks where the City Council may
feel it is necessary. And, as indicated above, there are some
costs not specifically included in the current project cost
such as furnishings and telephone system. Currently, it is anti-
cipated that additional monies will be available for furnishings
and telephone system through three areas :
1 . Additional interest on the balance of funds after the
January 1 , 1988 date.
2 . Additional interest due to the conservative . 065 factor
utilized. Current average rate of 6. 8 - 7 . 0% .
3. Any used portion of the projected 7% contingency.
In summary of the savings available through the selection of
alternates , it is estimated that the elimination of the Trellis
over the walkway would decrease the total project cost by $2 , 625 . ;
elimination of the Trellis and Conference Room would decrease the
project cost by $18 , 625 . ; and elimination of the Trellis , Conference
Room and Landscape would decrease the project costs by $40 , 625 .
RECOMMENDED ACTION:
Award of contract to Burns-Pacific Construction in the amount of
$463 , 625 .
MOORPgRK
o fCity COLined �4CIFoRNIq
Alen
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1
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By ,,�
MOORPARK CITY HALL PROJECT
EXHIBIT "A"
MOORPARK
JOHN GALLOWAY STEVEN KUENY
Mayor City Manager
ELOISE BROWN PPP°" `"�I CHERYL J. KANE
Mayor Pro Tem £°�/`�Z City Attorney
CLINT HARPER, Ph.D. �° PATRICK RICHARDS,A.I.C.P.
Councilmember rt
Director of
g V'� Community Development
JOHN PATRICK LANE Ca 4�� R. DENNIS DELZEIT
Councilmember 9� v
MAUREEN W.WALL °qgr City Engineer
City Clerk `� 'J JOHN V.GILLESPIE
THOMAS P.GENOVESE Chief of Police
City Treasurer
MEMORANDUM
TO: The Honorable Mayor and City Council
FROM: Thomas P. Genovese, Deputy City Manager
%
DATE: November 23, 1987
SUBJECT: AWARD OF CONTRACT MOORPARK CITY HALL PROJECT
Background Information:
On Thursday, November 12, 1987 sealed bids from three (3) contractors
were received and opened for the Moorpark City Hall project. As
previously indicated to you in a memorandum of November 13, 1987, the
bids received were as follows:
ITEM ITEM DESCRIPTION BURNS-PACIFIC D. I.A. L. PARTON &
CONSTRUCTION SERVICES EDWARDS
AMOUNT AMOUNT AMOUNT
1. Complete building as described $463,625. $524,972. $536,652.
in plans and specifications
(City Hall and conference room)
2. City Hall and conference room. $461,000. $523,000. $530,852.
No trellis over walkway.
3. City Hall; no conference room $445,000. $505,000. $506,447.
or trellis.
4. City Hall; no conference room, $423,000. $487,000. $489,517.
trellis, landscape, or
irrigation.
799 Moorpark Avenue Moorpark, California 93021 (805) 529-6864
As the City Council is aware, the City Hall project was bid with
alternates to accommodate the receipt of bids in excess of the
construction estimate. This is indicated in the attached memorandum
dated August 3, 1987. These alternates are included in the bid
receipt information.
The low bidder on the project is an experienced and reputable firm,
qualified to perform the work. Because the bid received of $463,625.
for Item I is below the budgeted amount, which includes the entire
site developed as planned, City staff is recommending alternative No.
I be chosen in the award. City staff is completing a complete final
budget on the project, which will include other costs such as
furnishings and contract administration/inspection, for the City
Councils review. It is still recommended that should cut backs in
the project scope be necessary, interior furnishings could be reduced
or eliminated.
RECOMMENDED ACTION:
Award of contract to Burns-Pacific Construction in the amount of
$463,625.
TPG:rjh
Attachment
1
MOORPARK
CLINT HARPER, Ph.D. STEVEN KUENY
Mayor City Manager
ELOISE BROWN CH ERYL J. KANE
o °o City Attorney
Mayor Pro Tern f� ?
THOMAS C. FERGUSON PATRICK RICHARDS, A.I.C.P.
•
Gouncilmember e� Director of
JOI1N GALLOWAY Obodis
� Community Development
Councilmerber R. DENNIS DELZEIT
City Engineer
JOHN PATRICK LANES-'
Councilmember JOHN V. GILLESPIE
Chief of Police
MAUREEN W.WALL
City Clerk THOMAS P. GENOVESE
City Treasurer
MEMOR A NDUM
TO : The Honorable City Council
FROM : Thomas P. Genovese, Deputy City Manager
DATE : November 13 , 1987
SUBJECT : MOORPARK CITY HALL BIDS
TI'ie bids for the City Hall project were received on Thursday,
November 12, 1987 . The details of the receipt of bids are
indicated on the attachment to this memorandum. It is anticipated
that all references and background checks will be completed in
time for a recommendation of award at the November 23, 1987
City Council meeting.
TPG:jd
Attachment
799 Moorpark Avenue Moorpark, California 93021 (805) 529-6864
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1
MOORPARK
STEVEN KUENY 1
CLINT HARPER,Ph.D. City Manager t
Mayor CHERYL J.KANE
ELOISE BROWN 4. rP. /
Mayorf �-o1 City Attorney
Pro Tern
THOMAS C.FERGUSON ���° PATRICK RICHARDS, A-I-C.P-
Director of
Councilmember _Ilw� lift Community Development
JOHN GALLOWAYbere, 0 R. DENNIS DELZEIT
Councilmember City Engineer
JOHN PATRICK LANE ,^
`rE° �'` JOHN V.GILLESPIE
IE
Councilmember Chief of Police
MAUREEN WALL THOMAS P.GENOVESE
City Clerk MEMOR ANDUM City Treasurer
-VC) : The Honorable City Council
FROM : Thomas P. Genovese , Deputy City Manager ��
DATE : . August 3 , 1987
SU BUJ ECT : Proposed City Hall Facility Bid Authorization
BACKGROUND INFORMATION
As the City Council is aware, the City staff has been working
with D. I . aL. Services on the development of the City Hall plans
and specifications . The final approved floor plan and design
is currently in review with Building and Safety and the review
is expected to be completed next week.
To summarize the project details , information regarding the
project has been divided into four areas : Design Concept , Site
Location, Expandability and Future Applications of the Facility.
DESIGN CONCEPT
Relating the buildings (Library, Community Center, new City
Hall) , was considered of prime importance to furthering the
campus plan concept.
The front entry area will have a gathering patio on the exterior,
with an open lobby inside for staff and public interaction.
In future uses , this area could be a patio either open or enclosed.
The scale of all the buildings are similar , with the high point
of the planned project the same height above grade level as
the Community Center. The materials for the planned project
are the same as the existing - cream colored stucco, red tile
roof, dark stained wood, accent arches and brick caps on site
and planter walls .
799 Moorpark Avenue Moorpark, California 93021 (805) 529-6864
1
SITE LOCATION
The planned City Hall project is situated close to the existing
Community Center facility to allow interaction between the
main meeting room and administrative offices_.when the City
Council , Planning Commission or Parks and Recreation Commission
is in session.
The new City Hall program called for administrative offices
and a small public lobby. Additionally, a separate conference
room which will serve for closed sessions of the City Council
was incorporated. Though planned primarily for City business
purposes this room could also he used for public meetings .
Since the existing building is substantially lower in elevation
than the planned project , the most practical location for this
board room was as an attachment to the existing facility. Any
conferences called by administrative personnel could be held
in one of the unstaffed offices , conference area in the work
station layout , or the separate board room. Additionally,
any of the western offices could be used as a conference room.
EXPANDABILITY
The current design of the facility allows for substantial ex-
pandability through the use of the open office space concept .
This concept allows furniture to be relocated and therefore
enlarge or contract office space areas . Architectural program
standards for space planning allow the following square footage :
City Manager 260
Engineers , Administrative Staff 120
Administrative Staff 170
Support Staff 80
The planned facility allows for 27 persons in the future, with
an average space allotment in the overall building of 133 square
feet per person. The open area has under floor conduits to
allow any number of work stations to access telephone , computer
and electrical with a minimum of construction. The offices
in the back have interior walls that are partially of glass
non-bearing construction to enable them to be removed at a
later date , if required. The open area is planned for moveable
systems furniture.
2
FUTURE APPLICATIONS OF THE FACILITY
The planned facility has been designed with maximum flexibility.
The perimeter walls are load bearing shear walls , and since
all the interior gravity loads are handled through the use
of steel columns and clear span beams , all interior partitions
are non-bearing. This design concept allows the interior walls
(with the exception of the toilet rooms) to be rearranged
at a later date , if the use changes .
One major architectural feature is the main work area which
has an open beam ceiling with clerestory windows at the peak.
The other work areas and offices have suspended ceilings that
can be changed easily to satisfy other needs . Additionally,
the heating, ventilation and air conditioning is zoned into
three main areas for even more flexibility in the future.
SUMMARY
The present design of the facility requires the salvage of
the two Pepper trees to the north of the building with a proposed
relocation of one (1) Palm tree , two (2) Crabapple trees , one
(1) Pine tree and five (5) Eucalyptus trees . The relocation
of the five Eucalyptus relate to the expansion of the parking
facility.
A copy of the plans and specifications of the project have
been placed at the Council Table. Also located at the Table
is a colored rendering of the elevations and site plan. The
facility has been designed to be flexible , energy efficient
(by utilizing natural light from clerestory windows and photo
sensors to adjust light level as needed and efficient air con-
ditioning units pursuant to the rebate requirements of Southern
California Edison) , and aesthetically compatible with the other
buildings on the site. Should you have any questions during
your review of the plans and specifications please feel free
to contact me. Listed below -is the Tentative Project Schedule
for the new proposed facility :
TENTATIVE PROJECT SCHEDULE
Advertise for Bids August 19 , 1987
Open Bids September 19 , 1987
Award Contract October 7 , 1987
Start Construction October 22 , 1987
Complete Construction May 22 , 1987
3
As the City Council is aware , the City currently has available
$510 , 420 for the construction of the new City Hall facility.
The current construction estimate is $525 , 000 which includes
a trellis over the patio area that is to be bid as an alternate
bid item. This construction estimate does not include the
utility fees , construction supervision or interior furniture
improvements . Although the current construction estimate ,
which includes a 20% contingency, is higher than the current
balance of funds available, City staff is recommending that
the project be bid as designed. The three primary reasons
for this recommendation are:
1 . After speaking with the architect on the project
it is expected that the cost of construction
will probably be closer to $500 , 000 due to
the current activity in the building industry.
2 . If cutbacks on the project scope are needed
it would be best to cutback on interior
improvements or alternate items . The building
as currently designed does not include excessive
items that can be readily eliminated.
3 . Alternative funding mechanisms may be explored
when the bids have been received.
The current estimated budget and estimated expenses to date
for this project are :
Expended to Date :
Design, Plans & Specifications 35 , 000
Proposed Expenditures :
Architectural Administration 20 , 000
Furnishings 30 , 000
Construction (plus contingency) 525 , 000
Utilities and Contingency 15 , 000
Total Project Cost Estimate 625 , 000
RECOMMENDED ACTION
Authorize the advertisement for bids for the construction of
the proposed City Hall facility.
Pam Sharky, the architect for the proposed City Hall facility,
will be in attendance at the meeting for a short presentation.
4
, MOORPARK CITY HALL PROJECT
EXHIBIT "B"
MEMMMIln
•
PROPOSAL
DESIGNATION OF SUBCONTRACTORS
In compliance with the Subletting and Subcontracting Fair
Practices Act, California Goverment Code Section 4100 et
seq. , bidder proposes to subcontract certain portions of
the work which are in excess of one-half of one percent of
the bid and to procure materials and equipment from
suppliers and vendors as follows:
NAME, ADDRESS, AND PHONE PORTION OF WORK,
NUMBER OF SUBCONTRACTORS, MATERIALS, OR
SUPPLIERS, AND VENDORS EQUIPMENT
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C-4
PROPOSAL
DESIGNATION OF SUBCONTRACTORS
In compliance with the Subletting and Subcontracting Fair
Practices Act, California Goverment Code Section 4100 et
seq_ , bidder proposes to subcontract certain portions of
the work which are in excess of one-half of one percent of
the bid and to procure materials and equipment from
suppliers and vendors as follows:
NAME, ADDRESS, AND PHONE PORTION OF WORK,
NUMBER OF SUBCONTRACTORS, MATERIALS, OR
SUPPLIERS, AND VENDORS EQUIPMENT
Earthwork
2 !A)r, �gy Landscape
1- Paving
4. _4 Concrete
5. GJuQti2it Masonry
6. eve CA2-r P Structural Steel
Cabinets
8 7 Framing
9. GuA0,-\ Roofing
10. +� G s�Ll E Insulation
11. Glass
12. Lath and Plaster
13. raE�r+r l Drywall
14. Tile
15. �rnr ' +''" Acoustical _
(Continued on Sheet C-4A)
C-4
, NME„ ADDRESS, AND PHONE PORTION OE WORK, -
NUMBER OF SUBCONTRACTORS, MATERIALS, OR -
SUPPLIERS, AND VENDORS EQUIPMENT
16. r�cwa��/ Flooring !
17. : i .. Painting i
•
18. . , ►c,1:1-1, -PPS Plumbing -
19. 4 _sr •< i�' 6r�.%r Fire Protection .•
HVAC
21 -7-14- Electrical
•
t,
i i L .
-Pa'Elm) $ owLd
PROPOSAL
DESIGNATION OF SUBCONTRACTORS
In compliance with the Subletting and Subcontracting Fair
Practices Act, California Goverment Code Section 4100 et
seq. , bidder proposes to subcontract certain portions of
the work which are in excess of one-half of one percent of
the bid and to procure materials and equipment from
suppliers and vendors as follows:
NAME, ADDRESS, AND PHONE PORTION OF WORK,
NUMBER OF SUBCONTRACTORS, MATERIALS, OR
SUPPLIERS, AND VENDORS EQUIPMENT
***See Attached***
•
C-4
PROJECT: Moorpark City Hall
ARCHITECT: D. I .aL. Services _
CONTRACTOR: Parton & Edwards Construction , Inc.
ESTIMATOR: Don Erickson
BID DATE: November 12 , 1987 @ 3 :00pm
SQ FT: 5,455 PRICE PER SQ FT:
SECTION NAME SEC.# SUBCONTRACTOR ADDRESS
Permits 01000 Parton & Edwards S.B.
Test & Inspctn 01100 NIC
Temporaries 01500 Parton & Edwards S.B.
Demo 02000 Parton & Edwards S.B.
Grading 02200 Wyatt Oxnard
Landscape 02400 Plantica Oxnard
AC Paving 02600 Patterson Ventura
Concrete 03300 Mendez Santa Paula
CMU 04400 Powers Camarillo
Steel 05500 A&H S.B.
Ro Carpentry 06100 Fitzgerald Camarillo
Fin Carpentry 06200 Parton & Edwards S.B.
Cabinets 06400 Coastal S.E.
Insulation 07200 UCIC S.B.
Roofing 07300 Channel Island Ventura
Sheet Metal 07600 Incl . in 15600
Doors 08100 Capitol S.B.
Fin Hardware 08700 Montgomery L .A.
Glass 08800 Center Oxnard
Plaster 09200 Lopez Ventura
Gypsum Board 09250 Marik S.B.
Tile 09300 Desert Ventura
Ac. Ceiling 09500 Empire Newberry Park
Flooring 09600 Howard's Ventura
Painting 09900 A&B Oxnard
Acessories 10000 Prod. Originators Ventura
Plumbing 15400 Carroll S.B.
Fire Protect 15500 Central Coast Carpinteria
HVAC 15600 Cabrillo Oxnard
Electrical 16000 Taft Oxnard
Miscellaneous 17000 Parton & Edwards S.S.
,MOOREARK CITY HALL PROJECT
EXHIBIT "C"
•
tle 1 Div. 5 SUBLETTING AND SUBCONTRACTING § 4100
• Chapter 2
SUBLETTING AND SUBCONTRACTING
Sec.
544.
4100. Short title.
139, 4100.5.Application of chapter.
4101. Legislative finding; bid shopping and bid peddling.
4102. Renumbered.
4103. Preservation of rights and remedies.
f this 4104. Identification of subcontractors by bidders.
4105. Circumvention of identification requirements. 4
fr 4106. Failure to specify subcontractor; performance of work; subcon-
"' < tracting after award.
• 4106.5.Renumbered.
4107. Substitution of subcontractors; consent; assignment of subcon-
yx, tract; subcontracting after award.
4107.2.Carpeting; specifying labor subcontractor in bid.
4107.5.Clerical error in listing subcontractor; objections by listed subcon-
tractor; substitution of intended subcontractor.
4108. Subcontractors' performance bonds.
4109. Conditions under which subcontract permitted after failure to
designate subcontractor in bid.
19 ' 4110. Violation of chapter as contract violation; hearing; cancellation;
penalty.
4111. Violation of chapter as grounds for discipline.
4112. Contractor's noncompliance not defense in action by subcontractor.
4113. Subcontractor; prime contractor.
Cross References
Contractors License Law,see Business and Professions Code§7000 et seq.
State purchases and services,see§14780 et seq.
Law Review Commentaries
. Bid shopping and peddling in the sub- .. .
contract construction industry. (1970) 18
U.C.L.A.Law Rev. 389.
§ 4100. Short title
This chapter may be cited as the "Subletting and Subcontracting
Fair Practices Act"
(Stats.1943, c. 134, p. 980, § 4100. Amended by Stats.1949, c. 1453, p. 2535,
i.'
§ 1; Stats.1963, c. 2125, p. 4411, § 1.)
Historical Note
The 1949 amendment declared that the "streets or highways, including bridges".
chapter did not apply to contracts for the Previously the section declared that the
construction, improvement or repair of chapter did not apply to contracts for the
383
';:.., ..
,f.
`l!i
`F
§ 4100 PUBLIC WORK AND PURCHASES Title 1 -..c Div. 5
construction, improvement or repair of Provisions formerly contained in this r.1.
"State highways, including bridges, nor to section prior to the 1963 amendment are
city or county projects financed in whole now contained in § 4100.5.
or in part with motor vehicle fuel funds". Derivation: Stats.1941, c. 1283, p. 3230, I. In genet
The 1963 amendment rewrote this sec- § 1. %-ix Bid shopp
tion to read as it now appears. when done
contract fc
Forms
See West's California Code Forms,Government.
§ 4101
The
Library References ,,
peddling i
Municipal Corporations«326 et seq. C.J.S. Municipal Corporations § 1142 et ji,
public lIT
States C=90 et seq. seq.
C.J.S.States §§154,155, 160. •y4$ workman
full benef
Notes of Decisions " tractors,
Construction and application I other evil
Purpose 2
perform in accordance with bid. Saliba- (Added by
Kringlen Corp. v. Allen Engineering Co.
(1971) 92 Cal.Rptr.799, 15 C.A.3d 95.
I. Construction and application
Where electrical contractor's mistaken 2. Purpose <:'
bid was due to failure of its estimator to The purpose of Subletting and Subcon- !;; - Former §
take into account that he was dealing with tracting Fair Practices Act was not limit- 134, p. 981
half-size plans although estimator knew ed to providing the awarding authority 1945, c. 138(
plans were half-size and general contras- with opportunity to approve substitute
tor was not aware of mistake until ten subcontractors, but also to protect the
minutes before bids were opened, general public and subcontractors from the evilsim
contractor was entitled to recover from attendant upon practices of bid shopping Municipal
electrical contractor the additional monies and bid peddling subsequent to the award u#• States C
which general contractor was required to of prime contract for a public facility.
pay to have work performed by another Southern California Acoustics Co. v. C. V.
414
electrical contractor after electrical con- Holder, Inc. (1969) 79 Cal.Rptr. 319, 456
tractor which submitted bid refused to P.2d 975,71 C.2d 719.
AV In general
Definitions
§ 4100.5. Application of chapter Purpose 2
With the exclusion of that portion of work covering street lighting =`
and traffic signals, this chapter does not apply to the balance of con- I. in gene,
tracts for the construction, improvement or repair of streets or high- Where pr
was, including bridges. bid in comp
ytwo projec
(Added by Stats.1963,c. 2125,p.4411, § 2. Amended by Stats.1972,c. 834,p. schedule m:
in bid, prim
1488, § 1.) liable to me
contracting
detrimental
Historical Note L. Smith
The 1972 amendment inserted the exclu- The provisions now contained in this '; Inc. (1977)
sion of work covering street lighting and section were formerly contained in § 4100 735.
traffic signals and inserted the words "the prior to the 1963 amendment. ' 2. Purpose
balance of" preceding "contracts", '-
Purpose c
tices of bid
Library References
connection
Municipal Corporations C '326 et seq. C.J.S. Municipal Corporations § 1142. :- HenselBay Citiess
States G490 et seq. C.J.S.States §§ 154,155, 160. '°
Cal.Rptr. 6;
384 'A,,,
,
II
Title 1 I
F Div. 5 SUBLETTING AND SUBCONTRACTING § 4101
ained in this 4.,'
mendment are 'd {
:- Notes of Decisions
1283, P. 3230, 1. In general
Bid shopping is not against public policy Saliba-Kringlen Corp. v. Allen Engineer-
when done by general contractor awarded ing Co. (1971) 92 Cal.Rptr. 799, 15 C.A.
contract for construction of freeway. 3d 95.
§ 4101. Legislative finding; bid shopping and bid peddling
The Legislature finds that the practices of bid shopping and bid
ions § 1142 et : : peddling in connection with the construction, alteration, and repair of
public improvements often result in poor quality of material and
60. , workmanship to the detriment of the public, deprive the public of the '
full benefits of fair competition among prime contractors and subcon- '
tractors, and lead to insolvencies, loss of wages to employees, and 1
t ,J other evils.
•
i bid. Saliba- ' (Added by Stats.1963, c. 2125, p. 4411 igineering Co. , § 4.) i
C.A.3d 95.
Historical Note
and Subcon- al Former § 4101, enacted by Stats.1943, c. § 4103 and amended by Stats.1963, c.
was not limit- 134, p. 981, § 4101, amended by Stets. 2125, p. 4411, § 4.
ling authority 1945,c. 1380, p.2576, § 1,was renumbered I
we substitute -,
o protect the ?''
'rom the evils
Library References
11
' bid shopping Municipal Corporations C=326 et se
to the award q• C.J.S. Municipal Corporations § 1142 et
public facility. -'_r;, States G•t90 et seq. seq.
sCo. v. C. V. C.J.S. States §§ 154, 155, 160. i
Rptr. 319, 456
Notes of Decisions
In general I i'.
" Definitions 3
Purpose 2
.eet lighting - The
lnce of con- ., purpose of subletting and subcon-
1. In general tracting fair practices act was not limited
rtS or high- to providing the awarding authority with
4, Where prime contractor utilized mason's opportunity to approve substitute sub- it
bid in compiling its total bid for construe- contractors, but also to protect the pub-
tion project, but inadvertently failed to lie and subcontractors from the evils at-
372,c.834,p. schedule mason on list of subcontractors tendant upon practices of bid shopping
in bid, prime contractor could not be held and bid peddling subsequent to the award
liable to mason under Sublettingand Sub- of prime contract for a public facility.
contracting Fair Practices Act, absent Southern California Acoustics Co. v. C. V.
detrimental reliance on part of mason. C. Holder, Inc. (1969) 79 Ca1.Rptr. 319, 456
L. Smith Co., Inc. v. Roger Ducharme, P.2d 975,71 C.2d 719.
tamed in this Inc. (1977) 135 Cal.Rptr. 483, 65 C.A.3d 'I
Lined in § 4100 ;, 735. 3. Definitions
t w� 2. Pur pose "Bid shopping", practice sought to be
p prevented by this Act, is use of lowest bid :++1
Purpose of this Act is to prevent prac- already received by general or prime con- 12,
tices of bid shopping and bid peddling in tractor to pressure other subcontractors
connection with public works projects. into submitting even lower bids. Bay Cit- ? II!
lions § 1142. Bay Cities Paving & Grading, Inc. v. ies Paving & Grading, Inc. v. Hensel I
lio Hensel Phelps Const. Co. (1976) 128 Phelps Const. Co. (1976) 128 Cal.Rptr. I''
Cal.Rptr. 632, 56 C.A.3d 361. 632, 56 C.A.3d 361. Ij
385
•
f I ,',
f
§ 4102 PUBLIC WORK AND PURCHASES Title 1 '
§ 4102. Renumbered § 4104 and amended by Stats.1963, c. 2125,
p.4411, § 5 '
•
§ 4103. Preservation of rights and remedies
Nothing in this chapter limits or diminishes any rights or reme-
dies, either legal or equitable, which:
(a) An original or substituted subcontractor may have against
the prime contractor,his successors or assigns.
(b) The State or any county, city, body politic, or public agency
may have against the prime contractor, his successors or assigns, in-
cluding the right to take over and complete the contract.
(Formerly § 4101, enacted by Stats.1943, c. 134, p. 981, § 4101. Amended
by Stats.1945, c. 1380, p. 2576, § 1. Renumbered § 4103 and amended by
Stats.1963, c. 2125, p. 4411, § 4.)
Historical Note
The 1945 amendment, throughout the The 1963 amendment substituted
section, referred to the "general contrac- "prime" for "general" preceding "contrac-
�' tor" instead of to the "contractor", and in tor"in both subdivisions.
subd. (b), it deleted "public corporation" Former § 4103, enacted by Stats.1943, e.
from the list of political bodies. 134, p. 981, § 4103, amended by Stats.
The 1945 amendatory act contained the 1945, c. 1380, p. 2576, § 3, was renumber-
following provision: "If any provision of ed § 4106 and amended by Stats.1963, e.
this act, or the application thereof to any 2125, p. 4412, § 7.
person or circumstance, is held invalid, Derivation: Stats.1941, c. 1283, p. 3230,
the remainder of the act and the applica-
tion of such provisions to persons or cir-
cumstances other than those as to which
it is held invalid, shall not be affected
thereby."
Library References
Municipal Corporations C=)326 et seq. C.J.S.S Municipal Corporations § 1142 et
States C�90 et seq.
q.
C.J.S.States§§154,155, 160.
Notes of Decisions
I. In general tor's bid in computing prime bid, there is
Where general contractors awarded "bid chiseling" forbidden by Bid Listing
prime contracts formally solicit bid from Law. People v. Inland Bid Depository
subcontractor using another subcontrac- (1965) 44 Cal.Rptr. 206, 233 C.A.2d 851.
§ 4104. Identification of subcontractors by bidders
Any officer, department, board or commission taking bids for the
construction of any public work or improvement shall provide in the
specifications prepared for the work or improvement or in the gener-
al conditions under which bids will be received for the doing of
tth
e
work incident to the public work or improvement that any person
386
r-
.. rrr
Iiiii
,i
4,_
1
Title 1 Div. 5 SUBLETTING AND SUBCONTRACTING § 4104
c. 2125, making a bid or offer to perform the work, shall, in his bid or offer,
set forth:
(a) The name and the location of the place of business of each
subcontractor who will perform work or labor or render service to the
prime contractor in or about the construction of the work or im-
r reme- provement, or a subcontractor licensed by the State of California
who, under subcontract to the prime contractor, specially fabricates
against and installs a portion of the wcrk or improvement according to de-
tailed drawings contained in the plans and specifications, in an
agency `:> amount in excess of one-half of 1 percent of the prime contractor's
A`'� total bid.
;ns, in- :.
(b) The portion of the work which will be done by each such sub- r
= contractor under this act. The
,mendedprime contractor shall list only one �,
nded by Y subcontractor for each such portion as is defined by the prime con-
tractor in his bid.
(Formerly § 4102, enacted by Stats.1943, c. 134, p. 981, § 4102. Amended
by Stats.1945, c. 1380, p. 2576, § 2. Renumbered § 4104 and amended by
ibstituted `' Stats.1963, c. 21
contrac- k. ' 25 p. 4411, § 5; Stats.1971, c. 376, p. 743, § 1; Stats.1971,
:$ C. 1584, p. 3195, § 1.)
::li,
s.1943, c.
)y Stets. 0.. Historical Note
e1963 ec. The 1945 amendment, in subd. (a), re- The 1971 amendments inserted in subd.
l quired the name and location of the "place (a) subcontractors licensed by the state
w of business" of each subcontractor instead who, under subcontract to the prime con-
p. 3230, . of the name and location of the "mill, tractor, specially fabricate and install a
-_,.< i shop, or office". Reference was made to portion of the work or improvement ac-
- I the "general contractor" instead of to the cording to detailed drawings contained in
"contractor". The percentage restriction the plans and specifications.
I was added. In subd. (b), reference was
i.-:i made to work to be done by each "such" Former § 4104, enacted by Stats.1943, e.
subcontractor "under this act", 134> p. 981, § 4104, amended by
i 1945, c. 1380, p. 2576, § 4, was renumbmber-
er-
: . y For partial validity provision of the ed § 4107 and amended by Stats.1963, c. •
1142 et 1945 act, see Historical Note under § 2125, p.4412, § 8.
;1 4103.
° The 1963 amendment added the second Derivation: Stats.1941, c. 1283, p. 3230,
1 '• sentence of sabd. (b) relating to the list- § 1.
Ij ing of subcontractors.
there is Cross References i
Listing !-''
Carpeting,sublet of subcontract,see§4107.2. +
..2d 851.
Library References
Municipal Corporations C=t332• C.J.S. Municipal Corporations § 1151.
States C=98. C.J.S.States §§ 160 to 167, $
'or the s
.a:
in the r_E,; Notes of Decisions
Acceptance of bids 2 ,
genet- , Bid chiseling 5 I. Construction and application ,
Of the ; Construction and application I A public body has neither the power nor l
the obligation at the time of or after
Jerson h,' Designation of subcontractors 3 awarding the prime contract, to substitute
Existence of subcontract 4 a California subcontractor in place of an 1
387 � '
1,
I,
i
Y
§ 4104 PUBLIC WORK AND PURCHASES Title 1
out-of-state subcontractor whose bid is of performance, there was exchange of
not more than 5 per cent lower than the writings which led to preparation of docu-
California subcontractor under §§ 4107, ment which was finally sent to mason,
4334 and this section. 18 Ops.Atty.Gen. who signed it and returned it to prime
185 contractor, but prime contractor never
signed it and informed mason that it could •
2. Acceptance of bids not proceed with masonry work because,
through prime contractor's inadvertence,
In absence of an agreement to the con- mason had not been scheduled as subcon- _
trary listing of subcontractor in prime bid tractor on bid proposal submitted to own- is
for public school construction was not an er and therefore could notbcontract existed be legally uti- ¶;
implied acceptance of subcontractor's bid lized on project, no su
by general contractor, since the listing by between parties. C. L. Smith Co. Inc. v.
general contractor of subcontractors he Roger Ducharme, Inc. (1977) 1,35 Cal.
intends to retain is in response to statuto- R tr.483,65 C.A.3d 735.
ry command and cannot reasonably be p y
construed as an expression of acceptance. Where subcontractor did not rely on any
Southern California Acoustics Co. v. C. promise by school construction general
V. Holder, Inc. (1969) 79 Cal.Rptr. 319, contractor, but only on the listing of sub-
456 P.2d 975,71 C.2d 719. o ntrd
on estriction on general contrtors actor's
by s r cto section r's
i,, right to change its listed subcontractors •
3. Designation of subcontractors
without consent of school district under §
p Prime contractor, which was to exca-
1 4107, and general contractor neither ac-
vate, by designating both itself and paving cepted subcontractor's offer, nor made
subcontractor on same line in designation any promise or offer to subcontractor in-
of subcontractors for paving and excavat- tended to induce action or forbearance of
ing violated this Act. Bay Cities Paving a definite and substantial character, sub
,I• & Grading, Inc. V. Hensel Phelps Const. contractor had no cause of action for
t °i Co. (1976) 128 Cal.Rptr. 632, 56 C.A.3d
:i 1 breach of contract against general con-
361. tractor which obtained school district's
Where it was agreed that subcontractor consent to change of subcontractors.
lfil
was to pave and prime contractor was to Southern California Acoustics Co. v. C. V.
excavate and prime contractor was willing Holder, Inc. (1969) 79 Cal.Rptr. 319, 456
3
: to allow subcontractor to pave but sub- Y.2d 975,?1 C.2d 719.
contractor refused unless it was also A mistake, through which corporation
awarded excavation work, there was no subcontracting to do steel work on junior
benefit of bargain to be recovered by sub- high school auditoriums and connecting
contractor; thus it was not entitled to re- shelter, for construction of which another
cover from prime contractor which had vi- corporation aware of such mistake, had
olated this section by, in designating sub- general contract with school district,
contractors, listing both itself and subcon- seemingly agreed to perform for $37,700
tractor on same line without differentiat- for work reasonably worth at least
ing the work to be done by each. Id. $47,000 because of failure to exclude from
subcontract steel decking specifically ex-
,,,,::.
This section does not require a prime eluded in subcontractor's oral bids, was so
contractor to list in his bid hardware sup- essential and fundamental that parties'
pliers who deliver packaged, finished hard- minds never met on subcontract as exe-
ware to the job site to be installed by cuted and subcontractor was entitled to
someone other than the supplier. 49 rescission thereof. Brunzell Const. Co. v.
Ops.Atty.Gen. 15, 2-7 67. G. J. Weisbrod Inc. (1955) 285 P.2d 989,
i• 134 C.A.2d 278. " '
4. Existence of subcontract n
Where prime contractor received unso 5• Bid chiseling
licited oral bid for masonry work from Where general contractors awarded
mason, figures submitted were used by prime contracts formally solicit lower bid
prime contractor in compiling its total bid, from subcontractor using another subcon-
after prime contractor was awarded prime tractor's bid in computing prime bid, there
contract, it sent to mason a form of sub- is "bid chiseling" forbidden by Bid Listing to
contract agreement for purpose of deter- Law. People v. Inland Bid Depository
mining terms and conditions of its offer (1965) 44 Cal.Rptr. 206, 233 C.A.2d 851. ',;<:
§ 4105. Circumvention of identification requirements
Circumvention by a general contractor who bids as a prime con-
tractor of the requirement under Section 4104 for him to list his sub-
388
z,,
Title 1 Div. 5 SUBLETTING AND SUBCONTRACTING § 4106
exchange of "
n of aocn- 'r contractors, by the device of listing another contractor who will in i I
nt to mason, I'. turn sublet portions constitutingthe majority of the work covered by "
it to prime J y
rector never ' the prime contract, shall be considered a violation of this chapter and that it could shall subject such prime contractor to the penalties set forth in Sec-
,vork because, ' "
inadvertence, A -1- tions 4110 and 4111.
71.
.d as subcon- ` Added byp itted to own- ( Stats.1963, c. 2125, 4411 § 6.)
.e legally uti-
tract existed Historical Note
h Co., Inc. v.
'7) 135 Cal. ! Former § 4105, enacted by Stats.1943,c. 4109 and amended by Stats.1963,c.2125,p.
134, p. 981, § 4105, amended by Stats.1945, 4413, § 10.
t rely on any < ; c. 1380, p. 2577, § 5, was renumbered §
tion general
sting of sub-
Library References
section and r Municipal Corporations i 375.
contractor's C.J.S. Municipal Corporations § 1208 et
ibcontractors States @�109. seq
trict under § C.J.S. States
§§ 151, 153, 174 to 176.
neither ac-
nor made
, nor e § 4106. Failure to specify subcontractor; performance of work;
in-
rbearance
of �'; f
iracter, sub- subcontracting after award h
action for R If aprime contractor fails to specify a subcontractor or if a prime
;eneral con- �
of district's contractor specifies more than one subcontractor for the same por-
}co}contractors.
v. tion of work to be performed under the contract in excess of one-half
";,
tr. 319, 45s of 1 percent of the prime contractor's total bid, he agrees that he is
P
fully qualified toperform that portion himself, and that he shall per-
corporation
k on junior „ form that portion himself. ;�
connectinge:
lid' another . If after award of contract such prime contractor shall, except as
dstake, had provided for in Sections 4107 or 4109, subcontract any such portion
of district, l�`'-,
for district,
` '''' of the work, such prime contractor shall be subject to the penalties r
at least named in Section 4111.
xclude from
afically ex- �° (Formerlyby I
,ids, was so § 4103, enacted Stats.1943, c. 134, p. 981, § 4103. Amended
at pansies' • by Stats.1945, c. 1380, p. 2576, § 3. Renumbered § 4106 and amended by
ict as eae- '' Stats.1963,c.2125,p.4412,§ 7.) I ••-
entitled to ,'+
mat. Co. v. , Historical Note I'11
5 P.2d 989,
i
The 1945 amendment referred to "gen- formed under the contract in excess of
eral contractor" instead of to "contrac- one-half (1f2) of one per cent (1%) of I
tor" and added the percentage limitation, the general contractor's total bid, he awarded i For
lower bid .' partial validity provision of the agrees to perform that portion himself."
4103.
1945 act, see Historical Note under § Former § 4106, enacted by Stats.1943, c. "I'�
er subcon- 134,
bid, there p. 981, § 4106, amended by State.
Bid Listing ' i The 1963 amendment rewrote the sec- 1945, c. 1380, p. 2577, § 6, was renumber- i'
Depository tion, which previously read: "If a general ed § 4110 and amended by Stats.19G3, c.
:.A.2d 851. �L,- contractor fails to specify a subcontractor 2125, p.4413, § 11.
for any portion of the work to be per- Derivation: Stats.1941, c. 1283, p. 3230. II
Notes of Decisions
k' ul
In general I �'
I. In general
me con- 4 � `
his sub- Standing 2 • Where prime contractor utilized mason'st'1 :
��:.. 38�bid in compiling its total bid for construe- 1
M M,i
11',L
+ jI
,1,CL I
i+
t .
§ 4106 PUBLIC WORK AND PURCHASES Title 1 Div
tion project, but inadvertently failed to 2. Standing the the
schedule mason on list of subcontractors Where subcontractor was not designated ;i I
in hid, prime contractor could not be held or intended to perform excavation work i
liable to mason under Subletting and Sub- on public contract, it had no standing to
contracting Fair Practices Act, absent contest whether or not prime contractor p; ! Stlt
detrimental reliance on part of mason. C. improperly retained a subcontractor to
L. Smith Co., Inc., v. Roger Ducharme, perform that work. Bay Cities Paving & g1V�
735. (1976) 128 Cal.Rptr. 632, 56 C.A.3d 361.Inc. (1977) 135 Cal.Rptr. 483, 65 C.A.3d Grading, Inc. v. Hensel Phelps Const. Co. tor'
not:
add
§ 4106.5j. Renumbered § 4111 and amended by Stats.1963, c. so
2125, p. 4413, § 12 SO Il
,4 file
• con:
§ 4107. Substitution of subcontractors; consent; assignment of :,
subcontract; subcontracting after award noti
No prime contractor whose bid is accepted shall: :`'`; trac
f
(a) Substitute any person as subcontractor in place of the sub-
tor';
contractor listed in the original bid, except that the awarding author-
ity, or its duly authorized officer, may, except as otherwise provided tran
in Section 4107.5, consent to the substitution of another person as a •1.:. orig.
i.
subcontractor: 1.
of th
(1) When the subcontractor listed in the bid after having had a Chan
reasonable opportunity to do so fails or refuses to execute a written At,
contract, when such written contract, based upon the general terms, tracl
conditions, plans and specifications for the project involved or the prim
terms of such subcontractor's written bid, is presented to him by the r. nate
..
prime contractor, (For
(2) When the listed subcontractor becomes bankrupt or insolvent, ; by Si
Stats
or 1 c. 88�
(3) When the listed subcontractor fails or refuses to perform his
subcontract, or
(4) When the listed subcontractor fails or refuses to meet the >s11,1 The
bond requirements of the prime contractor as set forth in Section 4108, paragr
tor" ii
or r. subd.
"such"
made t
lj
(5) When the prime contractor demonstrates to the awarding au-
thority, or its duly authorized officer, subject to the further provi- in the
sions set forth in Section 4107.5, that the name of the subcontractor pr visi
aaaea.
was listed as the result of an inadvertent clerical error, or r der
1 (6) When the listed subcontractor is not licensed pursuant to the 4 03. E
Contractors License Law, or The
il (7) When the awarding authority, or its duly authorized officer, . lion, wl
determines that the work performed by the listed subcontractor is "No 1
;, ;°. ceptea
substantially unsatisfactory and not in substantial accordance with awarait
• 390
' I:
1 ; ; < Div. 5 SUBLETTING AND SUBCONTRACTING § 4107
a
the plans and specifications, or that the subcontractor is substantially •
ed delaying or disrupting the progress of the work.
rk
to Prior to approval of the prime contractor's request for such sub-
to or rs. ... stitution the awarding authority, or its duly authorized officer, shall l
& give notice in writing to the listed subcontractor of the prime contrac-
Do. tor's request to substitute and of the reasons for such request. Such i
:,r.. notice shall be served by certified or registered mail to the last known , 1
4. address of such subcontractor. The listed subcontractor who has been
c' so notified shall have five working days within which to submit written
1
objections to the substitution to the awarding authority. Failure to
file such written objections shall constitute the listed subcontractor's
consent to the substitution.
of U �
; If written objections are filed, the awarding authority shall give
notice in writing of at least five working days to the listed subcon-
,
tractor of a hearing by the awarding authority on the prime contrac- t
lb_ ,': tor's request for substitution. ,
or- ,;` (b) Permit any such subcontract to be voluntarily assigned or ,, , '
led 3 transferred or allow it to be performed by anyone other than the
s a a original subcontractor listed in the original bid, without the consent ( ,.
of the awarding authority,or its duly authorized officer. I
d a (c) Other than in the performance of "change orders" causing
ten changes or deviations from the original contract, sublet or subcon- t ..
ms, tract any portion of the work in excess of one-half of 1 percent of the ' i
the prime contractor's total bid as to which his original bid did not desig-
the nate a subcontractor.
(Formerly § 4104, Enacted by Stats.1943, c. 134, p. 981, § 4104. Amended ' l'
ent,
by Stats.1945, c. 1380, p. 2576, § 4. Renumbered § 4107 and amended by 1
• • Stats.1963, c. 2125, p. 4412, § 8; Stats.1963, c. 332, p. 705, § 1; Stats.1974,
c. 889, p. 1889, § 1; Stats.1975, c. 678, p. 1482, § 25.) il ' i
1 his f
Historical Note i 1
x
the The 1945 amendment, in the opening 1)
P g "(a) Substitute any person as subcon- t,' 4
6108, , paragraph, referred to "general contrac- tractor in place of the subcontractor desig-
• tor" instead of to the "contractor". In nated in the original bid.
subd. (b), reference was made to any "(b) Permit any such subcontract to be
au- 'such" subcontract and reference was assigned or transferred or allow it to be
made to the original subcontractor "listed performed by anyone other than the origi-
rOVl- in the bid". In subd. (c), the percentage nal subcontractor listed in the bid. )
actor provision was added. A subd. (d) was "(c) Sublet or subcontract any portion
added. of the work in excess of one-half ( y) of ! ., ;
oneper cent 1 `
For partial validity ( %) of the general contrac- Pi ,provision of the
0 the 1945 act, see Historical Note under tor's total bid as to which his original bid
4103. did not designate a subcontractor. ti
"(d) The awarding authority may con •
-
The 1963 amendment rewrote thq. sec- sent to the substitution of another person 6i;�
[jeer, tion,which previously read: as a subcontractor, when the subcontrac- 1
('
"No general contractor whose bid is ac- tor named in the bid after having had a ` a' i
or is cepted shall, without the consent of the reasonable opportunity to do so, fails or �� '` i i i ?
with awarding authority, either: refuses to execute a written contract, I'
391
j fxS
! ,,,
il' i
4l
L )
§ 4107 PUBLIC WORK AND PURCHASES Title 1
Note I
when said written contract, based upon The 1974 amendment included, through-
the general terms, conditions, plans and out the section, following "awarding au-
specifications for the project involved, or thority", the words "or its duly authorized
the terms of such subcontractor's written officer"; added the last two sentences of
bid, is presented to him by the contrac- the second paragraph of subd. (a); and
tor." added the third paragraph of subd. (a)
The 1969 amendment rephrased subd. relating to written objections.
(a) by inserting numbered subparagraphs; The 1975 amendment amended the sec-
in the introductory provision of subd. (a), Lion without change in the text.
added the exception as to § 4107.5; in Former § 4107, enacted by Stats.1943, c.
subpar. 2, added bankruptcy as a ground 134, p. 981, § 4107, was renumbered §
for substitution; inserted the subject 4112 and amended by Stats.1963, c. 2125,
matter contained in subpars. (5), (6), and p. 4413, § 13:
(7); and substantially rewrote the first
and second sentences of the second para- Derivation: Stats.1941, c. 1283, p. 3230,
graph of subd. (a) relating to notice of § 1.
prime contractor's request to substitute.
Cross References
Contractors License Law,see Business and Professions Code§7000 et seq.
Library References
Municipal Corporations C=z)374(1). C.J.S. Municipal Corporations § 1208 et
States f31081,6. seq.
C.J.S.States §§174 to 183.
Notes of Decisions
Burden of proof 9 asserting claim of clerical error, and
Construction and application I plaintiff was entitled to recover from
Damages 5 prime contractor the benefit of the bar-
Estoppel 8 gain it would have realized had it not
Existence of subcontract 3 been wrongfully deprived of subcontract.
Penalties 6 Coast Pump Associates v. Stephen Tyler
Pleadings 7 Corp. (1976) 133 Cal.Rptr. 88, 62 C.A.3d
Purpose 2 421.
Substitution of subcontractors 4 Once prime contractor's bid has been
accepted for public project, it may not re-
tain new subcontractors or substitute new
I. Construction and application subcontractors for existing subcontractors
without approval of awarding authority.
p + Where prime contractor utilized mason's Bay Cities Paving & Grading, Inc. v.
a�l � bid in compiling its total bid for construe- Hensel Phelps Const. Co. (1976) 128
tion project, but inadvertently failed to Cal.Rptr.632,56 C.A.3d 361.
schedule mason on list of subcontractors
.
in bid, prime contractor could not be held A general contractor on a public con-
liable to mason under Subletting and Sub- tract could not recover from a subcon •
-
contracting Fair Practices Act, absent tractor for breach of such subcontract
detrimental reliance on part of mason. C. where contractor failed to comply with
L. Smith Co., Inc. v. Roger Ducharme, applicable provisions of § 4100 et seq., `''
Inc. (1977) 135 Cal.Rptr. 483, 65 C.A.3d governing performance of subcontracts by
735. a party other than original subcontractor
listed in its bid, and where such violation
Even if prime contractor's bid had re- was an integral and essential part of the
fleeted savings afforded by subcontract bid transaction upon which its asserted cause }"
lower than plaintiff's bid, where plaintiff's of action was based. Kiely Corp. v. Gib-
name and make of machinery it offered to son (1965) 41 Cal.Rptr. 559, 231 C.A.2d
supply were shown on bid form, prime 39
contractor which obtained'permission, aft-
er award of contract, to use other ma- No contractual relationship is created
chiueiy supplied by lower bidder violated between subcontractor and general con-
Subletting and Subcontracting Fair Prac- tractor by the submission by general con-
tices Act in absence of prime contractor's tractor of bid using subcontractor's bid,
cjPlYjwitlj41o7.5Proceduresfort11ouljjjjePtedbYjjjjj g au-
392
BOON
§ 4107
l'
Div. 5
SUBL
ETTING AND SUBCONTRACTING
Note 4
thority. Klose v. Sequoia Union High the prime contractor, the prime contrac-
Dist. (1953) 258 P.2d 515, 118 C. t yo n t r
A.2d 2d 636. tractor for the listed subcontracto and
the awarding authority may not consent
Subcontractor, whose name is submitted to such a substitution until the contract is
with bid of general contractor, secures no presented to the listed subcontractor and
legal rights as result of acceptance of he, after having had a reasonable oppor-
general contractor's bid by awarding au- tunity to do so, fails or refuses to execute
thority. Id. the written contract. Southern California .
Acoustics Co. v. C. V. Holder, Inc. (1969)
v,1
2. Purpose 79 Cal.Rptr. 319, 456 P.2d 975, 71 0.2d
This section was intended to protect 719,
,• original subcontractor against replacement Where general contractor for school
by another subcontractor. Coast Pump construction listed plaintiff acoustical tile
Associates v. Stephen Tyler Corp. (1976) subcontractor as required by § 4104 re-
133 Cal.Rptr.88,62 C.A.3d 421. quiring inclusion of names of subcontrac-
Purpose of this section forbidding prime tors who are to perform one-half of one !
;:
contractor, once his bid is accepted, from percent or more of construction work, and j
substituting subcontractor designated in subcontractor acting on assumption that
original bid, except with consent of con- its bid had been accepted refrained from i
tracting agency is to protect original sub- bidding on other construction jobs to re- ( '
contractor against replacement by either main within his bonding limits, and gener- '1
another subcontractor or by the prime al contractor requested permission from
r contractor. Bay Cities Paving & Grading, school district to substitute another sub-
Inc. v. Hensel Phelps Const. Co. (1976) contractor, general contractor had no
128 Cal.Rptr.632,56 C.A.3d 361. right to substitute another subcontractor
in place of the plaintiff, and school dis- I
3. Existence of subcontract trict had no right to consent to that sub- ,
Where prime contractor received unso- stitution. Id.
licited oral bid for masonry work from Contractor could not, without consent of
mason, figures submitted were used by county sanitation district, substitute itself
prime contractor in compiling its total bid, for "earth work" subcontractor named in
after prime contractor was awarded prime bid on public work for performance of the } -
t contract, it sent to mason a form of sub- "earth work" after contractor declined to 1
• contract agreement for purpose of deter- enter into contract with subcontractor
r mining terms and conditions of its offer even though subcontractor was willing to k'.;
of performance, there was exchange of do so, and therefore, district properly
writings which led to preparation of docu- withheld part of contract price as penalty {
n ment which was finally sent to mason, for contractor's violation of his contract.
who signed it and returned it to prime Fred J. Early, Jr., Co. v. County Sanita if-
Rcontractor, but prime contractor never tion Dist. No. 2 of Los Angeles County
's signed it and informed mason that it could (1963) 29 Cal.Rptr. 633, 214 C.A2d 505.
Y not proceed with masonry work because,
v. through prime contractor's inadvertence, Where general contractor, in making bid
,8 mason had not been scheduled as subcon- for repair of high school, inadvertently in- • - -
tractor on bid proposal submitted to own- aerted wrong name for the electrical sub-
er and therefore could not be legally uti- contractor, and bid of the one wrongfully
p_ 1 lized on project, no subcontract existed named was$500 higher than bid of the one
n_ between parties. C. L. Smith Co., Inc. v. who was intended to be named, board of
ct Roger Ducharme, Inc. (1977) 135 Cal. trustees had authority to consent to sub-
th Rptr.483,65 C.A.3d 735. stitution of proper name for the electrical
4•, •
No contractual relationship is created subcontractor. Klose v. Sequoia Union
by between subcontractor and general con- High School Dist. (1953) 258 P2d 515,118
C
A 2d 636.
Iortractor by the submission by general con-
on
' tractor of bid using subcontractor's bid,
he A prime contractor does not violate this
though bid is accepted by awarding au- section, prohibiting substitution of subcon-
iseib- thority. Klose v. Sequoia Union High 1 '
ib tractors once prime contractor's bid has
School Dist. (1953) 258 P. 515, 118 C. I '
'2d A2d 636. been accepted, if he permits a subcontrac-
tor to use additional subcontractors to i '
4. Substitution of subcontractors perform certain phases of the subcontract. a
fed 50 Ops.Atty.Gen.14,8-9-67. , c
bn- Unless a listed subcontractor becomes " r
en- insolvent or fails or refuses to perform a A public body has neither the power nor =`
)id, written contract for work or fails or re- the obligation at the time of or after I ;,
au- fuses to meet the bond requirements of awarding the prime contract, to substitute
393
PPIIIIIIMIIMIIIIMMMMMMIMIIIIMIIPIINIIIIIRI
1 Div. 5
§ 4107 PUBLIC WORK AND PURCHASES Title5
Note 4 law, submitted § 41
a Californiaf-Stae subcontractor in e of n tplaintiff's sname required
among listed subcontrac-
not-more subcontractor whose bid is 1
not more thanu 5 per cent lower than the
reportlandl,actingfon assumption that its
43ad trade newspaper
California section.
under Op §§ hid had been accepted, refrained from 1854 and this section. 18 Ops.Atty.Geu. ding on other construction jobs in order .r,
bid-
185. to remain within bonding limits, and that
thereafter the general contractor request- ent Cl�
5. Damages ed permission from school district to sub- ent ll
In action by general contractor for sub-
stitute another subcontractor for the ing au
plaintiff, which consent was granted,
performfoor'sin failureb to honortinhis bid to plaintiff stated a cause of action against
certain subcontracting work at an ies of
agreed price, awarding general contractor general contractor for breach of statutory in eofs
as damages the amount representing the duty. Southern California Acoustics Co.
difference between the subcontractor's bid v. C. V. Holder, Inc. (1969) 79 Cal•Rptr. ifl err
and the actual cost to the general con 319,456 P.2d 975,71 C.2d 719. A
cto
tractor for the performance of the job
was proper where the general contractor 8 Estoppel traC A
made reasonable efforts to negotiate a School district employee's advice to
o
contract with other subcontractor but was prime contractor that it should take no adver'
Winters
unsuccessful in doing so. Norcross21, 9 v. ction to substitute subcontractor before time
Winters (1962) 25 Cal.Rptr. 821, 209 C. contract was signed and that a request
A.2d 207. for substitution would be granted after ing at
contract was awarded did not estop school prime
•
6. Penalties district from assessing penalty against
Where general contractor entered into contractor for substitution of subcontrac ;;s�7; such
construction contract with county before tor where district was without power to -.;
1961 amendment to § 4106 (renumbered; permit substitution. Merco Const. Engi- . worki
see, now, § 4110) and after effective date neers, Inc. v. Los Angeles Unified School : adver
of section, contractor violated this section, Dist. of Los Angeles County (1969) 79 i y. r
county had right to recover the ten per- Ca1.Rptr.23,274 C.A.2d 154.
cent penalty provided for in § 4106 (re- Sect(
numbered; see, now, § 4110) as amended, ry,CO
since no substantial change in the rights 9. Burden of proof 'No
+'
of contractors was made by the amend- Plaintiff who asserted violation by
ment. 39 Ops.Atty.Gen.283. prime contractor of Subletting and Sub- o
Sub-
contracting Fair Practices Act did not roc a
7. Pleadings have burden of proving defendant's non- the a
Where plaintiff alleged that it submitted compliance with Act. Coast Pump A sso-133 part(
to general contractor for school construe- ciates v. Stephen Tyler Corp. ( p6
tion a subcontract bid, that general con- Cal.Rptr.88,62 C.A.3d 421. fact I
are f
4107.2. Carpeting; specifying labor subcontractor in bid areni
;' No subcontractor listed by a prime contractor under Section 4104
op
as furnishing and installing carpeting, shall voluntarily sublet his sub- the it
contract with respect to any portion of the labor to be performed un- tract
less he specified the subcontractor in his bid for such subcontract to 682, not s
` the prime contractor. the 1
claim.
(Added by Stats.1975, c. 271, p. §
1.
Library References -
Municipal Corporations )332. C.J.S. Municipal Co po16t ons § 1151. inten
States �98. C.J.S.States §$ work
the a
to tl
awai
shall
394
,
Title 1 I)iv. 5 SUBLETTING AND SUBCONTRACTING § 4107.5 i
i.
submitted § 4107.5. Clerical error in listingsubcontractor; objections
ubcontrac- by
newspaper 'A listed subcontractor; substitution of intended sub-
,n that its ',
from bid- contractor i
in order i
, and that
r request-
'et to sub-
The prime contractor as a condition to assert a claim of inadvert-
ent clerical error in the listing of a subcontractor shall within two i
for the working days after the time of the prime bid opening by the award-
; granted, ing authority give written notice to the awarding authority and cop-
ion against
,f statutory ies of such notice to both the subcontractor he claims to have listed
oustics Co. in error and the intended subcontractor who had bid to the prime con-
9 Ca1.Rptr. ,
tractor prior to bid opening.
Any listed subcontractor who has been notified by the prime con- 1
advice to tractor in accordance with the provisions of this section as to an in-
ad take no advertent clerical error shall be allowed six workingdays from the !
etor before Y ;,
a request time of the prime bid opening within which to submit to the award-
anted after ing authority and to the prime contractor written objection to the
?stop school
ity against prime contractor's claim of inadvertent clerical error. Failure of ! ,
subcontrac- such listed subcontractor to file such written notice within the six
it power to
Jonst. Engi- working days shall be primary evidence of his agreement that an in-
,if led School advertent clerical error was made. i;
(1969) 79
The awarding authority shall,after a public hearing as provided in ;! .
Section 4107 and in the absence of compelling reasons to the contra-
iolation by ry,consent to the substitution of the intended subcontractor:
ig and Sub- (a) If (1) the prime contractor, (2) the subcontractor listed in er-
ket did not
udant's non- ror and (3) the intended subcontractor each submit an affidavit to
Pump Asso- the awarding authority along with such additional evidence as the
(1976) 133
parties may wish to submit that an inadvertent clerical error was in
fact made, provided that the affidavits from each of the three parties
n bid are filed within eight working days from the time of the prime bid
ctic^ 4104 opening, or
t his sub
ormed un
(b) If such affidavits are filed by both the prime contractor and
the intended subcontractor within such specified time but the subcon-
tractor I '
ontract to whom the prime contractor claims to have listed in error does
not submit within six working days, to the awarding authority and to
the prime contractor, written objection to the prime contractor's
claim of inadvertent clerical error as provided in this section.
If such affidavits are filed by both the prime contractor and the
011s § 1151. intended subcontractor but the listed subcontractor has, within six
working days from the time of the prime bid opening, submitted to
the awarding authority and to the prime contractor written objection
to the prime contractor's claim of inadvertent clerical error, the
awarding authority shall investigate the claims of the parties and
shall hold a public hearing as provided in Section 4107 to determine
395
,
• 0 .
§ 4107.5 PUBLIC WORK AND PURCHASES Title 1 Div. 5
the validity of such claims. Any determination made shall be based
on the facts contained in the declarations submitted under penalty of
perjury by all three parties and supported by testimony under oath The 19
meat bo
and subject to cross-examination. The awarding authority may, on bond".
its own motion or that of any other party, admit testimony of other
contractors, any bid registries or depositories, or any other party in
possession of facts which may have a bearing on the decision of the
awarding authority. " Payment
(Added by Stats.1969, c 332, p. 706, § 3.)
Cross References
Alunicip
Perjury and subornation of perjury,see Penal Code§ 118 et seq. " States
Notes of Decisions
I. In general tices Act, in absence of prime contractor's
Even if prime contractor's bid had re- complying with this section procedures for , . I. In get
fleeted savings afforded by subcontract bid asserting claim of clerical error, and Even tl
lower than plaintiff's bid, where plaintiff's plaintiff was entitled to recover from cont nitre(
name and make of machinery it offered to prime contractor the benefit of the bar- loge conk
supply were shown on bid form, prime gain it would have realized had it not formance
contractor which obtained permission, aft- been wrongfully deprived of subcontract. this sveti,
er award of contract, to use other ma- Coast Pump Associates v. Stephen Tyler ?{ coutracto:
chinery supplied by lower bidder violated Corp. (1976) 133 Cal.Rptr. 88, 62 C.A.3d
Subletting and Subcontracting Fair Prac- 421.
§ 4108. Subcontractors' performance bonds § 41
(a) It shall be the responsibility of each subcontractor submitting
bids to a prime contractor to be prepared to submit faithful perform- Sul
ance and payment bond or bonds if so requested by the prime con- of one-
tractor. which l
be pern
(b) In the event any subcontractor submitting a bid to a prime after a
contractor does not, upon the request of the prime contractor and at authori
the expense of the prime contractor at the established charge or pre- sity.
mium therefor, furnish to such prime contractor a bond or bonds is-
sued by an admitted surety wherein the prime contractor shall be (Forme:
named the obligee, guaranteeing prompt and faithful performance of by Stat:
' Stats.l9
such subcontract and the payment of all claims for labor and materi-
als furnished or used in and about the work to be done and performed
under such subcontract, the prime contractor may reject such bid and
make a substitution of another subcontractor subject to the provi- The 19
age prov
sions of Section 4107. Such bond or bonds may be required at the For pc
expense of the subcontractor only if the prime contractor in his writ- 1945 act.
ten or published request for subbids (1) specifies that the expense for 4103.
such bond or bonds shall be borne by the subcontractor and (2) clear-
ly specifies the amount and requirements of such bond or bonds.
Alunicip
(Added by Stats.1963, c. 2125, p. 44L2, § 9. Amended by Stats.1974, c. 544, z States
p. 1248, § 6.) C.J.S.
396
•
• I
1
-
Title 1 , f `' Div. 5 SUBLETTING AND SUBCONTRACTING § 4109
be based
!nalty of ,. _ = Historical Note
ler oath "' The 1974 amendment substituted "pay- Former § 4108, enacted by Stats.1945, c.
y ment bond" for "labor and materials 1380, p. 2577, § 7, was renumbered § 4113 1,
may, on +y bond". and amended by Stats.1963, c. 2125, p.
of other 4413, § 14.
party in a 1
in of the Cross References
Payment bond for public works,see Civil Code§3247 et seq.
ors'
e '' Library References '
'a'''- Municipal Corporations C 344 et seq. C.J.S. Municipal Corporations § 1171 et
' States CS101. seq.
:,i•F _( C.J.S.States§§ 184 to 193.
-
F.
Notes of Decisions
ontractor's
cedures for I. In general
•
error, and Even though general contractor which self against loss resulting from non-per-
!over from contracted to perform work for public col- formauce, and surety which issued $2,500
)f the bar- lege could have required delivery of per- bond on behalf of subcontractor was not
had it not a' formance bond by subcontractor under thereby relieved of liability on such bond. it
subcontract. this section, such a bond was not general Bailey-Sperber, Inc. v. Yosemite Ins. Co. -
phen Tyler .,5 contractor's sole means of protecting it- (19761 1a4 Cal.$ntr. 740, 64 C.A.3d 725.
62 C.A.3d d,
§ 4109. Conditions under which subcontract permitted after fail-
ure to designate subcontractor in bid
tbmitting
perform- Subletting or subcontracting of any portion of the work in excess
ime con- of one-half of 1 percent of the prime contractor's total bid as to
which no subcontractor was designated in the original bid shall only
be permitted in cases of public emergency or necessity, and then only
•
) a prime after a finding reduced to writing as a public record of the awarding
or and at 4 authority setting forth the facts constituting the emergency or neces-
:e or pre- sity.
bonds is- ,4
snail be •••+ (Formerly § 4105, enacted by Stats.1943. c. 134, p. 981, § 4105. Amended ,'#: -
by Stats.1945, c. 1380, p. 2577, § 5. Renumbered § 4109 and amended by
mance of •4 Stats.1963, c. 2125, p. 4413, § 10.)
d materi- -'r
erformed _ •
Historical Note I
h bid and ,
The 1945 amendment added the percent- The 1963 amendment referred to "prime J.
he provi- •
I • age provisions. contractor's" instead of "general contrac- }I
ed at the For partial validity provision of the tor's".
his writ- 1945 act, see Historical Note under § Derivation: Stats.1941, c. 1283, p. 3230,
:pence for 4103. § 1.
(2) clear- Library References
iS. ; i
• Municipal Corporations C=353. C.J.S. Schools and School Districts § 1
)74, c. 544, States t3=105. 304. ;;I
C.J.S. Municipal Corporations § 1182. C.J.S.States § 169.
• 397 1
{
is
ir..... _ _ _
. ... .
•
§ 4110 PUBLIC WORK AND PURCHASES Title I
Div. 5
§ 4110. Violation of chapter as contract violation; hearing; can- any opportunity
cellation; penalty present any fact
the exercise of
A prime contractor violating any of the provisions of this chapter predicated. Men
v. Los Angeles U
violates his contract and the awarding authority may exercise the op- Angeles County
tion, in its own discretion, of (1) cancelling his contract or (2) assess- 274 C.A.2d 154.
ing the prime contractor a penalty in an amount of not more than 10 2. construction ;
percent of the amount of the subcontract involved, and this penalty 4 .
Ashall be deposited in the fund out of which the tract general cunt
p prime contract is �£ could not
awarded. In any proceedings under this section the prime contractor ,P f tractor for bres
where contractor
shall be entitled to a public hearing and to five days' notice of the , applicable provis
time and place thereof. Y1,; ! governing perfori
a party other th
(Formerly4106, enacted byStats.1943, c. 134, listed in its bid,
§ p. 981, § 4106. Amended
was an integral ,
by Stats.1945, c. 1380, p. 2577, § 6; Stats.1961, c. 1963, p. 4140, § 1. Re- <' transaction upon
numbered § 4110 and amended by Stats.1963, c. 2125, p. 4413, § 11. >' of action was ba:
Amended by Stats.1969, c. 332, p. 706, § 2.) ,,, 3on (1965) 41 C
Where general
Historical Note construction cons
_ ''' 1961 amendment
The 1945 amendment, in the first sen- The 1961 amendment gave the awarding effective date of ;
tence, referred to "general contractor" in- authority the option of canceling the con- ed § 4107, relate
stead of "contractor". The second sen- tract or assessing a penalty of not more work done by su
tence, which declared that after a viola- than 10 percent of the amount of the sub- right to recover
tion the contractor could not recover for contract or both, and provided that the ':`": provided for in 1
any of the materials furnished on the penalty would be deposited in the fund out (;ti_; since no substant
public work or improvement, was deleted, of which the contract was awarded. ;-' of contractors w
and a second and third sentence were sub- ment. 39 Ops.Ati
The 1963 amendment referred to "prime
sutured which provided that the penalty contractor" instead of "general contrac
would be 20 percent of the amount of the tor„ 3. Status of subc
subcontract and that the penalties re-
covered would be paid to the state trea- The 1969 amendment deleted subset. (3) t No contractual
surer who would deposit them in the gen- which contained an option of both cancel- , between subconti
eral fund. ling the contract and assessing the penal- _ tractor by the su
For partial validity provision of the ty and added the second sentence. tractor of bid u;
though bid is ac
1945 act, see Historical Note under § Derivation: Stats.1941, c. 1283, p. thority. Klose
4103. 3230, § 1. School Dist. (195
A.2d 636.
Cress References Subcontractor,
with bid of gener.
Circumvention of identification requirements,see§4105. legal rights as
general contracto
thority. Id.
Library References
4. Mistake
Municipal Corporations €=>375. C.J.S. Municipal Corporations § 1208 et A mistake thr
States C=>109. seq. • subcontracting to
C.J.S. States §§ 151, 153, 174 to 176. high school audi
•
Notes of Decisions
Construction and application 2 I. Validity
§ 4111.
-
Liquidated damages 5 This section authorizing awarding au- +'
Mistake 4 thority, in its discretion, to assess 10% Violation
Status of subcontractor 3 penalty against prime contractor who vio- ing with Secti
Validity I hates the provisions of Chapter 2 violates
Withholding contract price 6 due process in that it does not provide Code constitul
398 *
4
?4
Title 1
Div. 5 SUBLETTING AND SUBCONTRACTING § 4111
,aring; can- any opportunity to the contractor to shelter, for construction of which another
present any facts or arguments on which corporation, aware of such mistake, had
the exercise of that discretion might be general contract with school district,
this chapter . predicated. Merco Coust. Engineers, Inc. seemingly agreed to perform for $37,700
v. Los Angeles Unified School Dist. of Los for work reasonably worth at least
.cise the op- : i Angeles County (1969) 79 Cal.Rptr. 23, $47,000 because of failure to exclude from
(2) assess_ 274 C.A.2d 154. subcontract steel decking specifically ex-
Ieluded in subcontractor's oral bids, was so
ore than 10 ,, 2, Construction and application essential and fundamental that parties'
4 isminds never met on subcontract as exe-
his penalty
x_. A general contractor on a public con- cuted and subcontractor was entitled to
contract is •w-�Mx'. tract could not recover from a subcon- rescission thereof. Brunzell Const. Co. v. !
COritraC+ tractor for breach of such subcontract G. J. Welsbrod Inc. (1955) 285 P.2d 989,
where contractor failed to comply with 134 C.A.2d 278.
rtice of the 7 s applicable provisions of § 4100 et seq.,
governing performance of subcontracts by Where general high school,
inadvertently inmaking bid i t
a for ed wrongr of school, lecrivalib-
party other than original subcontractor serted name for the electrical sub-
3. Amended listed in its bid, and where such violation contractor, and bid of the one wrongfully j
i0, § 1. Re_ was an integral and essential part of the named was � '
transaction upon which its asserted cause $500 highero beran bid of the
4413, § 11. of action was based. Kiely Corp. v. Gib- one who was intended to named, board i
son (1965) 41 Cal.Rptr. 559, 231 C.A.2d of trustees had authority to consent to '
k 39, proper name for the elec-
substitution of �,
trical subcontractor. Klose v. Sequoia !'i
Where general contractor entered into Union High School Dist. (1953) 258 P.2d j
construction contract with county before 515, 118 C.A.2d 636.
1961 amendment to this section and after
the awarding effective date of section, contractor violet- 5. Liquidated damages {
!eling the con- ed § 4107, relating to public construction
of not more work done by subcontractors, county had Where school district was specifically
iint of the sub- right to recover the ten percent penalty authorized by this section to provide for
ided that the provided for in this section, as amended, penalty for substitution or deletion of
n the fund out since no substantial change in the rights subcontractors, school district did not vio-
arded. of contractors was made by the amend- late Civ.C. § 1670 (repealed; see, now,
Ted to "prime ; ment. 39 Ops.Atty.Gen.283. Civ.C. § 1671) prohibiting contracts fixing
1 t
feral contras- damages for breach of an obligation when
3. Status of subcontractor district assessed penalty against contrac- t
for for making substitution. Merco I i
ed subsec. (3) No contractual relationship is created Const. Engineers, Inc, v. Los Angeles Uni- fLi
f both cancel- • between subcontractor and general con- fied School Dist. of Los Angeles County ',,�.
in the penal-
tractor by the submission by (1969) 79 Cal.Rptr. 23, 274 C.A.2d 154.
g general con-
nce. tractor of bid using subcontractor's bid,
though bid is accepted by awarding au-
c. 1283, p. thority. Klose v. Sequoia Union High 6. Withholding contract price
School Dist. (1953) 258 P.2d 515, 118 C. Contractor could not, without consent of
•
A.2d 636. county sanitation district, substitute itself
Subcontractor, whose name is submitted for "earth work" subcontractor named in
bid on public work for performance of the
with bid of general contractor, secures no
"earth work" after contractor declined to
legal rights as result of acceptance of
general contractor's bid by awarding au- enter into contract with subcontractor
thoHty. Id. even though subcontractor was willing to
do so, and, therefore, district properly
ors 1.08 et a` 4• Mistake withheld part of contract price as penalty
§ for contractor's violation of his contract.
A mistake through which corporation Fred J. Early, Jr., Co. v. County Sanita- '
174 to 176. subcontracting to do steel work on junior tion Dist. No. 2 of Los Angeles County
high school auditoriums and connecting (1963) 29 Cal.Rptr. 633, 214 C.A.2d 505.
§ 4111. Violation of chapter as p grounds for discipline
awarding au-
assess logo Violation of this chapter by a licensee under Chapter 9 (commenc-
ctor who vio- ing with Section 7000) of Division 3 of the Business and Professions
cer 2 violates i
not provide Code constitutes grounds for disciplinary action by the Contractors 1
399
i
i
Id
§ 4111 PUBLIC WORK AND PURCHASES Title 1 x Di
State License Board, in addition to the penalties prescribed in Section m
4110.
sit
(Formerly § 4106.5, added by Stats.1961, c. 1963, p. 4141, § 2. Renumbered ~
§ 4111 and amended by Stats.1963,c.2125,p.4413, § 12.) re
Historical Note ``` (F
The 1963 amendment referred to "Sec- :
41
tion 4110"instead of"Section 4106". :.; 19
Cross References
Circumvention of identification requirements,see§4105.
Disciplinary proceedings against contractors, see Business and Professions Code § 7090 par
et seq. +r` for
Subcontracting after award,see§4106. F
194
Library References , 410
Licenses C=11(5),38.
C.J.S.Licenses§§30,43,44. �.
Ls:. Iv
§ 4112. Contractor's noncompliance not defense in action by sub- S
contractor
The failure on the part of a contractor to comply with any provi •
-
sion of this chapter does not constitute a defense to the contractor in
any action brought against him by a subcontractor.
(Formerly § 4107, enacted by Stats.1943, c. 134, p. 981, § 4107. Renumber-
ed§ 4112 and amended by Stats.1963, c.2125, p.4413, § 13.) Sec
41f.
Historical Note 41t
The 1963 act renumbered this section Derivation: Stats.1941, c. 1283, p. 3230, r;_ 41E
without changing the text. § 1. 41E
Library References 41E
Municipal Corporations C=374(1). C.J.S. Municipal Corporations § 1208 et
States C=108%,(. seq.
C.J.S.States§§174 to 183.
•
Notes of Decisions
I. Construction and application brought against him by a subcontractor, §
In view of provision of this section that without such privilege having been extend-
failure on the part of a public contractor ed to the general contractor, failure of
• to comply with certain provisions pertain- contractor to comply would be deemed to
ing to transfer or substitution of subcon- bar his right to maintain a suit against a tra
tractors other than original subcontrac- subcontractor for breach of contract. to
tors listed in bid shall not constitute a de- Kiely Corp v. Gibson (1965) 41 Cal.Rptr.
fense to the contractor in any action 559, 231 C.A.2d 39. cau
am
ace
§ 4113. Subcontractor; prime contractor sa, cat
As used in this chapter, the word "subcontractor" shall mean a clu(
contractor, within the meaning of the provisions of Chapter 9 (corn- M. thi:
400
of
I
Div. 5
CONTRACTOR'S RESPONSIBILITY § 4150
mencing with Section 7000) of Division 3 of the Business and Profes- i 1 ,
sions Code,who contracts directly with the prime contractor. ! i
I
"Prime contractor" shall mean the contractor who contracts di- it
rectly with the awarding authority.
(Formerly § 4108, added by Stats.1945, c. 1380, p. 2577, § 7. Renumbered § '' t
4113 and amended by Stats.1963, c. 2125, p. 4413, § 14. Amended by Stats. i t
1974, c. 423, p. 1023, § 3.)
IP
Historical Note
The 1963 amendment added the second The 1974 amendment rewrote the first
paragraph which defines "prime contrac- paragraph, which previously read: "As tor". used in this chapter, the word `subcon-
For partial validity tractor' shall have the meaningI' I
provision of the by the provisions of Chapter given to it
1945 act, see Historical Note under § 9 of Division
4103. 3 of the Business and Professions Code." '� '
i1
Library References ''
Municipal Corporations «326 et seq. {
States C=90 et seq. C.J.S. Municipal Corporations § 1142 et 1; s;
seq.
C.J.S. States §§ 154, 155, 160. I'
Chapter 2.5 j'
CONTRACTOR'S RESPONSIBILITY FOR WORK
Sec. I;. yi ___
4150. Exclusion of acts of God; insurance. I 'i� i
4151 Definitions. `i ';ii'
�II
4152. Applicability.
4153. Changes in contracts to comply with environmental requirements
and standards. i
4154. Contracts; termination, amendment, or modification of public con-
tracts; competitive bids. (
Chapter 2.5 was added by Stats.1971, c. 1703, p. 3642,
l '. 1
§ 1.
1
i
§ 4150. Exclusion of acts of God; insurance
Construction contracts of public agencies shall not require the con-
tractor 11
to be responsible for the cost of repairing or restoring damage 1 i, i
to the work, which damage is determined to have been proximately !'i''
caused by an act of God, in excess of 5 percent of the contracted i'
amount, provided, that the work damaged is built in accordance with 7
accepted and applicable building standards and the plans and specifi- t; i,
i � 3
cations of the awarding authority. However, such contracts may in- !
elude provisions for terminating the contract. The requirements of
this section shall not be mandatory as to construction contracts fi- i' i
401 -w--. i .
11
I
—.:. 4442.01...d:%;1 - 4,Y,