This focuses on Public Contract Code § 9204, the new law requiring a minimum claims resolution procedure for claims arising in public contracts (“Section 9204”). Below is a listing of the key aspects of Section 9204, some analysis and practical advice, along with a timeline sequence of how the new statute works. Further below is the full text of the new statute.
New Claims Procedure for Public Works Contracts
What contracts do Section 9204 apply to?—All public works projects everywhere in California entered into on or after January 1, 2017, except when the public entity involved is (a) Dept. of Water Resources, (b) Dept. of Transportation, (c) Dept. of Parks and Recreation, (d) Dept. of Corrections and Rehabilitation, (e) Military Dept., (f) Dept. of General Services, or (g) High-Speed Rail Authority. Any attempt to limit or avoid the effects of Section 9204 through contractual agreement is null and void.
Are Charter Cities and Charter Counties included?—It depends. The statute certainly tries to reach all public works contracts (except for those involving agencies listed in the preceding paragraph), and specifically states that it should apply to public works contracts involving Charter Cities and Charter Counties. Due to California’s “Home Rule” constitutional doctrine, which is conceptually similar to federalism, the applicability of Section 9204 therefore depends on a multiple prong test which has been part of California jurisprudence for decades. See, e.g., California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1; City of El Centro v Lanier (2016) 254 Call.App.4th 1494.
Under the first and likely most important prong of the test, the statute is binding on a Charter City or Charter County if there is no actual conflict between the statute and a charter provision or municipal enactment. Note—even if the statute conflicts with contract language a Charter City has been using for fifty years, that is not an actual conflict, because the contract language is not itself a municipal enactment.
If, however, the Charter City or Charter County has a charter or ordinance which does directly contradict the new statute, the “Home Rule” doctrine might negate the effect of Section 9204. In summary, whether any particular Charter City or Charter County must comply with Section 9204 depends on an individualized analysis focusing on particular municipal enactments and other elements unique to their circumstances. If there is no charter provision, ordinance or other municipal enactment conflicting with Section 9204, however, the new law likely applies to Charter Cities and Charter Counties.
What is the purpose of Section 9204?—The new statute is intended to encourage the timely payment of valid claims on public works projects.
Will Section 9204 be with us forever?—The new statute expires automatically on January 1, 2020, and therefore only impacts contracts entered into during an initial three year period. For it to affect contracts entered into after that date, another statute would have to pass either extending it or making Section 9204 permanent.
Are other public contract claims statutes and procedures negated by the new statute?—No. Existing claims statutes impacting public works remain enforceable and must be read in conjunction with Section 9204. For example, Public Contract Code § 10240 et seq., requires some claims to be arbitrated rather than adjudicated in a court of law. The deadlines and other provisions of those statutes still must be followed as they did before. The only difference is that the provisions of Section 9204 now apply as well. Other examples are Public Contract Code §§ 19100 et seq. & 20104 et seq, which remain the law and in full effect. In addition, pursuant to subparagraph (f) of Section 9204, a public entity may prescribe reasonable change order, claim, and dispute resolution procedures and requirements in addition to the new law, so long as the contractual provisions do not conflict with or otherwise impair the timeframes and procedures set forth in Section 9204.
Does Section 9204 have to be printed out in the public works contracts themselves?—Yes. Section 9204 requires that its term, or a summary thereof, be set forth in the public works contract’s plans or specifications.
Timeline sequence of claim resolution activity required by Section 9204:
- Process begins once contractor submits a claim to owner (consistent with any notice period prescribed by contract or local ordinance) accompanied by “reasonable documentation to support the claim.” Presumably a public entity can prescribe the level of detail of documentation that must be submitted with the claim, as long as it is reasonable. The contractor’s submission of the claim must be done by either registered mail or certified mail, return receipt requested. The claim itself can be for extra time, extra money, relief from liquidated damages, relief from backcharge, etc. Note—Long before contractor gets to this stage, it should ensure its compliance with any other contractual pre-requisites to submitting a claim (e.g., providing written notice of events potentially giving rise to claim for additional time or money within three days of occurrence, etc.).
- Upon receipt, Owner has 45 days to conduct a reasonable review of the claim and provide the claimant a written response which identifies what portion of the claim is disputed and what portion is undisputed. The parties are free to extend this time period by mutual agreement. If the public entity needs approval from its governing body, and the body does not meet during the 45 day period, the owner’s written response is due within 3 days of the publicly noticed meeting of the body following the 45 day period (or mutually extended period).
- If the owner does not provide a written response as required, the claim will be deemed to have been entirely disputed on the date the response was due.
- All amounts the owner identifies in its response as undisputed must be paid within 60 days of the owner’s written response. If it takes longer, those amounts accrue interest at 7% per annum.
- If any part of the claim is disputed by the owner, then after the response (or the time when it is deemed rejected) the contractor may demand in writing an informal conference to meet and confer about the dispute. If this written demand is made, the owner has 30 days to schedule such a conference.
- If after the meet and confer conference some or all of the claim remains in dispute, then within 10 days of the conference, the owner must provide claimant with a written statement which identifies what matters are still outstanding. Again, undisputed amounts must be paid within 60 days of the written statement or be subject to 7% interest.
- If the post-conference owner statement does identify aspects of claim still in dispute, contractor shall provide owner with written notice demanding non-binding mediation. Within 10 days of contractor’s notice, the parties are obligated to agree to a mediator. If the parties cannot agree, each selects a mediator, and those two mediators will choose a third mediator, who will mediate the disputed parts of the contractor’s claim.
- If mediation is unsuccessful, contractor is free to pursue its claim pursuant to contract and/or applicable law (arbitration, litigation, etc.).
- It is very important to comply with all other contractual and statutory requirements involving claims. For instance, complying with Section 9204 does not excuse a failure to submit a Government Code claim as a precondition to filing suit, which must be done within one year of the cause of action accruing. That is a timeline independent of the one contained in Section 9204. Furthermore, the time to submit a Government Code claim can be stayed while a contractor complies with some of the requirements of Public Contract Code § 20104 et seq., but in contrast there is no tolling effect explicitly created by Section 9204.
Does Section 9204 apply to subcontractor pass-through claims?—Somewhat. If a subcontractor has a claim against the owner, it can provide such a claim on a pass-through basis to the original contractor in writing. Reasonable documentation must be included with the subcontractor’s claim. Within 45 days of the original contractor receiving the subcontractor’s claim, the original contractor must notify the subcontractor in writing whether the claim was presented to the owner. If the original contractor did not present the claim to the owner, the original contractor in its written statement must explain the reasons it did not present the claim to the owner. If the subcontractor’s claim is passed through by the original contractor to the owner, the sequence of events detailed above will apply.
Note—the original contractor’s duty to investigate a subcontractor’s claim prior to passing it through to the owner to avoid False Claims Act liability is notoriously unclear. Obviously an original contractor should not pass through a subcontractor’s claim it knows for certain to be false. The amount of investigation, if any, required to insulate a contractor from potential False Claims Act liability may depend on the contractual relationship between it and the owner. For instance, an owner would have an easier time holding the original contractor liable for the submission of a false pass-through claim if the original contract imposes on the contractor a duty to investigate subcontractor claims prior to submission. False Claims Act liability does not arise from mere negligence, and there must at least be a reckless disregard for the truth proven before any defendant can be liable for False Claims Act liability.
Will 7% pre-judgment interest be available for sums unreasonably denied?—Probably. Although Section 9204 does not specify what remedy would be available to a contractor whose claim was wrongly denied, the owner may be liable for 7% interest if it is later determined by court or arbitrator that a reasonable review of the contractor’s claim would have caused a reasonable owner not to dispute the claim. Similarly, if some of the dispute is later deemed reasonable and some not, the 7% would probably apply to only the part of the claim which was unreasonably disputed.
California Public Contract Code § 9204 (full text)
- (a) The Legislature finds and declares that it is in the best interests of the state and its citizens to ensure that all construction business performed on a public works project in the state that is complete and not in dispute is paid in full and in a timely manner.
(b) Notwithstanding any other law, including, but not limited to, Article 7.1 (commencing with Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section 19100) of Part 2, and Article 1.5 (commencing with Section 20104) of Chapter 1 of Part 3, this section shall apply to any claim by a contractor in connection with a public works project.
(c) For purposes of this section:
(1) “Claim” means a separate demand by a contractor sent by registered mail or certified mail with return receipt requested, for one or more of the following:
(A) A time extension, including, without limitation, for relief from damages or penalties for delay assessed by a public entity under a contract for a public works project.
(B) Payment by the public entity of money or damages arising from work done by, or on behalf of, the contractor pursuant to the contract for a public works project and payment for which is not otherwise expressly provided or to which the claimant is not otherwise entitled.
(C) Payment of an amount that is disputed by the public entity.
(2) “Contractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who has entered into a direct contract with a public entity for a public works project.
(3) (A) “Public entity” means, without limitation, except as provided in subparagraph (B), a state agency, department, office, division, bureau, board, or commission, the California State University, the University of California, a city, including a charter city, county, including a charter county, city and county, including a charter city and county, district, special district, public authority, political subdivision, public corporation, or nonprofit transit corporation wholly owned by a public agency and formed to carry out the purposes of the public agency.
(B) “Public entity” shall not include the following:
(i) The Department of Water Resources as to any project under the jurisdiction of that department.
(ii) The Department of Transportation as to any project under the jurisdiction of that department.
(iii) The Department of Parks and Recreation as to any project under the jurisdiction of that department.
(iv) The Department of Corrections and Rehabilitation with respect to any project under its jurisdiction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part 3 of the Penal Code.
(v) The Military Department as to any project under the jurisdiction of that department.
(vi) The Department of General Services as to all other projects.
(vii) The High-Speed Rail Authority.
(4) “Public works project” means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind.
(5) “Subcontractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who either is in direct contract with a contractor or is a lower tier subcontractor.
(d) (1) (A) Upon receipt of a claim pursuant to this section, the public entity to which the claim applies shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. Upon receipt of a claim, a public entity and a contractor may, by mutual agreement, extend the time period provided in this subdivision.
(B) The claimant shall furnish reasonable documentation to support the claim.
(C) If the public entity needs approval from its governing body to provide the claimant a written statement identifying the disputed portion and the undisputed portion of the claim, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, the public entity shall have up to three days following the next duly publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide the claimant a written statement identifying the disputed portion and the undisputed portion.
(D) Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. If the public entity fails to issue a written statement, paragraph (3) shall apply.
(2) (A) If the claimant disputes the public entity’s written response, or if the public entity fails to respond to a claim issued pursuant to this section within the time prescribed, the claimant may demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requested, the public entity shall schedule a meet and confer conference within 30 days for settlement of the dispute.
(B) Within 10 business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, the public entity shall provide the claimant a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. Any disputed portion of the claim, as identified by the contractor in writing, shall be submitted to nonbinding mediation, with the public entity and the claimant sharing the associated costs equally. The public entity and claimant shall mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. If mediation is unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures outside this section.
(C) For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section.
(D) Unless otherwise agreed to by the public entity and the contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.
(E) This section does not preclude a public entity from requiring arbitration of disputes under private arbitration or the Public Works Contract Arbitration Program, if mediation under this section does not resolve the parties’ dispute.
(3) Failure by the public entity to respond to a claim from a contractor within the time periods described in this subdivision or to otherwise meet the time requirements of this section shall result in the claim being deemed rejected in its entirety. A claim that is denied by reason of the public entity’s failure to have responded to a claim, or its failure to otherwise meet the time requirements of this section, shall not constitute an adverse finding with regard to the merits of the claim or the responsibility or qualifications of the claimant.
(4) Amounts not paid in a timely manner as required by this section shall bear interest at 7 percent per annum.
(5) If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim against a public entity because privity of contract does not exist, the contractor may present to the public entity a claim on behalf of a subcontractor or lower tier subcontractor. A subcontractor may request in writing, either on his or her own behalf or on behalf of a lower tier subcontractor, that the contractor present a claim for work which was performed by the subcontractor or by a lower tier subcontractor on behalf of the subcontractor. The subcontractor requesting that the claim be presented to the public entity shall furnish reasonable documentation to support the claim. Within 45 days of receipt of this written request, the contractor shall notify the subcontractor in writing as to whether the contractor presented the claim to the public entity and, if the original contractor did not present the claim, provide the subcontractor with a statement of the reasons for not having done so.
(e) The text of this section or a summary of it shall be set forth in the plans or specifications for any public works project that may give rise to a claim under this section.
(f) A waiver of the rights granted by this section is void and contrary to public policy, provided, however, that (1) upon receipt of a claim, the parties may mutually agree to waive, in writing, mediation and proceed directly to the commencement of a civil action or binding arbitration, as applicable; and (2) a public entity may prescribe reasonable change order, claim, and dispute resolution procedures and requirements in addition to the provisions of this section, so long as the contractual provisions do not conflict with or otherwise impair the timeframes and procedures set forth in this section.
(g) This section applies to contracts entered into on or after January 1, 2017.
(h) Nothing in this section shall impose liability upon a public entity that makes loans or grants available through a competitive application process, for the failure of an awardee to meet its contractual obligations.
(i) This section shall remain in effect only until January 1, 2020, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2020, deletes or extends that date.
SEC. 2. The Legislature finds and declares that it is of statewide concern to require a charter city, charter county, or charter city and county to follow a prescribed claims resolution process to ensure there are uniform and equitable procurement practices.
SEC. 3. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
For more information about this topic please contact:
Victor F. Luke, Esq.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
1880 Century Park East 12th Floor
Los Angeles, CA 90067
The content contained herein is published online by Gibbs Giden Locher Turner Senet & Wittbrodt LLP (“Gibbs Giden”) for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel.
Copyright 2017 Gibbs Giden Locher Turner Senet & Wittbrodt LLP ©
Attorney Newsletter Advertisement