(a) (1) Notwithstanding any other provision of law, a contractor may, subject to paragraphs (2) and (3), bring an action in a court of competent jurisdiction to recover from the body awarding a contract for a public work or otherwise undertaking any public work any increased costs incurred by the contractor as a result of any decision by the body, the Department of Industrial Relations, or a court that classifies, after the time at which the body accepts the contractor’s bid or awards the contractor a contract in circumstances where no bid is solicited, the work covered by the bid or contract as a “public work,” as defined in this chapter, to which Section 1771 applies, if that body, before the bid opening or awarding of the contract, failed to identify as a “public work,” as defined in this chapter, in the bid specification or in the contract documents that portion of the work that the decision classifies as a “public work.”
(2) The body awarding a contract for a public work or otherwise undertaking any public work is not liable for increased costs in an action described in paragraph (1) if all of the following conditions are met:
(A) The contractor did not directly submit a bid to, or directly contract with, that body.
(B) The body stated in the contract, agreement, ordinance, or other written arrangement by which it undertook the public work that the work described in paragraph (1) was a “public work,” as defined in this chapter, to which Section 1771 applies, and obligated the party with whom the body makes its written arrangement to cause the work described in paragraph (1) to be performed as a “public work.”
(C) The body fulfilled all of its duties, if any, under the Civil Code or any other provision of law pertaining to the body providing and maintaining bonds to secure the payment of contractors, including the payment of wages to workers performing the work described in paragraph (1).
(3) If a contractor did not directly submit a bid to, or directly contract with a body awarding a contract for, or otherwise undertaking a public work, the liability of that body in an action commenced by the contractor under subdivision (a) is limited to that portion of a judgment, obtained by that contractor against the body that solicited the contractor’s bid or awarded the contract to the contractor, that the contractor is unable to satisfy. For purposes of this paragraph, a contractor may not be deemed to be unable to satisfy any portion of a judgment unless, in addition to other collection measures, the contractor has made a good faith attempt to collect that portion of the judgment against a surety bond, guarantee, or some other form of assurance.
(b) When construction has not commenced at the time a final decision by the Department of Industrial Relations or a court classifies all or part of the work covered by the bid or contract as a “public work,” as defined in this chapter, the body that solicited the bid or awarded the contract shall rebid the “public work” covered by the contract as a “public work,” any bid that was submitted and any contract that was executed for this work are null and void, and the contractor may not be compensated for any nonconstruction work already performed unless the body soliciting the bid or awarding the contract has agreed to compensate the contractor for this work.
(c) For purposes of this section:
(1) “Awarding body” does not include the Department of General Services, the Department of Transportation, or the Department of Water Resources.
(2) “Increased costs” includes, but is not limited to:
(A) Labor cost increases required to be paid to workers who perform or performed work on the “public work” as a result of the events described in subdivision (a).
(B) Penalties for a violation of this article for which the contractor is liable, and which violation is the result of the events described in subdivision (a).
(Added by Stats. 2003, Ch. 804, Sec. 2. Effective January 1, 2004.)
Last modified: October 25, 2018