New Liquidated Damages Provision for Public Works Contracts

James R. Wakefield, P.C.'s Construction Law Legal Blogs

Licensed for 36 years

Attorney in Newport Beach, CA

James R. Wakefield, P.C.

Free initial consultation, Credit cards accepted, Fixed hourly rates

Serving Newport Beach, CA

  • Serving Newport Beach, CA

  • Free initial consultation, Credit cards accepted, Fixed hourly rates

Senior Partner at firm Cummins & White, LLP

Serving Newport Beach, CA

Free initial consultation, Credit cards accepted, Fixed hourly rates

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On January 1, 2016, Section 7203 of the California Public Contract
Code went into effect, impacting public works construction projects.
Initially, the statute seems to provide protection for the unwary
contractor doing business with a public entity in California. It
prohibits the public entity from pursuing damages for delay from a
contractor if the public works contract contains a clause that expressly
requires a contractor to be responsible for delay damages, and the
delay damages are not liquidated to a set amount. Liquidated in
this instance means the contract sets forth a specific dollar amount
per day that the contractor can be liable for if there is a delay caused
by the contractor in lieu of actual delay damages.

Unfortunately, between the specific exceptions for certain state
agencies, and the language of the statute itself, one wonders whether it
provides any additional safeguard for contractors. First, Section 7203
does not apply to contracts with the Departments of Transportation,
Corrections, Water Resources, Water Ways, Military, or General Services.
From a fiscal perspective, the state exceptions to Section 7203
probably dwarf the departments affected by the statute.

Second, by its language, Section 7203 applies only to public works
contracts that contain a clause “that expressly requires a contractor to
be responsible for delay damages.” What if the contract contains no
such language? Does Section 7203 apply if the contract merely provides
that the parties acknowledge that the public entity will suffer harm if
the project is not completed by a particular date? What if the contract
says nothing at all except that the project is to be completed by a
specific deadline? Can a public entity obtain damages or a “set-off” of
sums owed if it can prove it was harmed? We assume that the answer is
yes. The courts will not infer a circumstance that is not clearly
indicated by the statute.

Section 7203 seems to provide illusory protection for contractors at
best. You’ll want to carefully read your public works contracts or have a
lawyer review them to ensure compliance with this new law. If you have
questions, feel free to contact me via email at jwakefield@cwlawyers.com or call me at (949) 852-1800.

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