Publications and Articles
FORESEEABILITY OF BREACH OF CONSTRUCTION CONTRACT DAMAGES By Bernard S. Kamine
Proving damages from the breach of a construction contract: Foreseeability, the “objective” constraint, the role of “subjective” facts, and how judges occasionally usurp the jury’s decision-making on these fact questions.
SUBSTITUTING LISTED SUBCONTRACTORS ON CALIFORNIA PUBLIC WORKS PROJECTS by Bernard S. Kamine
The procedures and grounds for seeking permission from the awarding authority to substitute a listed subcontractor on a public works project.
NO DAMAGE FOR DELAY CONTRACT CLAUSES by Bernard S. Kamine
KNOCK OUT INVALID AFFIRMATIVE DEFENSES BY DEMURRER TO ANSWER By Bernard S. Kamine
WHAT YOU NEED TO KNOW ABOUT BID PROTESTS By Bernard S. Kamine
How to challenge the low bid. How to defend against a challenge to your bid. When competitive bidding is required. Bid protest procedures. What documents to inspect. Grounds for protests. Costs and risks of bid protests.
DIFFERING SITE CONDITIONS By Bernard S. Kamine
Reasons for differing site conditions (DSC) clauses (also known as changed conditions clauses), types of DSC, limits on owner efforts to circumvent DSC clauses, proving a DSC exists. Versions appeared in the ECA Magazine and LA Daily Journal.
NOTICE, CLAIM AND LAWSUIT DEADLINES By Bernard S. Kamine
Definitions of key terms. Time limits for various actions on private and government construction projects, including notice of bid mistake, request to substitute a listed subcontractor, confirmation of supplier’s bid, submission of “or-equal” substitution, preliminary notice, bond claim notice, mechanics lien, stop payment notice, Government Code claim. Deadlines for lawsuits for relief from forfeiture of bid bond, to foreclose mechanics lien, to enforcement stop payment notice, to recover on payment bond, to challenge prevailing wage violation assessment. This is an updated version of chapter 1 in Kamine, PUBLIC WORKS CONSTRUCTION MANUAL: A LEGAL GUIDE FOR CALIFORNIA (BNi Building News, 1996); it appeared in ECA Magazine 2/14.
WHY COMPETITIVE BIDDING PROHIBITS SOLE-SOURCING AND MUST ALLOW OR-EQUAL SUBMITTALS By Bernard S. Kamine
Sole-sourcing violates the principles of competitive bidding. The statutes and regulations authorizing or-equal submissions merely implement those underlying principles. Versions appeared in L. A. Daily Journal, 6/9/05 and ECA Magazine 4/05.
CALIFORNIA OR-EQUAL REQUIREMENTS By Bernard S. Kamine
The scope and timing of California or-equal requirements, and the exceptional situations when sole-sourcing will be allowed. Versions appeared in L. A. Daily Journal, 12/30/03 and ECA Magazine 1/04.
EVERYTHING YOU EVER WANTED TO KNOW ABOUT EXTRA WORK AND THE CHANGES CLAUSE By Bernard S. Kamine
Explains why contracts have a clause allowing change orders, describes the limits on the owner’s power to order changes, lays out various bases for extra work claims, and describes contract clauses designed to control or prevent extra work claims and how the courts respond to those clauses.
WHEN LIQUIDATED DAMAGES CAN AND CANNOT BE ENFORCED By Bernard S. Kamine
Every public works project that overruns the contract time, as extended, enters into the realm of liquidated damages. There are many reasons why liquidated damages may not be enforced, but they generally involve just a few legal concepts: (1) Whether any damages were actually suffered. (2) Whether the prescribed liquidated damages meet minimum requirements for reasonableness. (3) Whether the contract language requires the all-or-nothing or apportionment-of-delay analysis. (4) Whether liquidated damages are barred by acts or omissions of the owner which prevented timely performance, amount to waiver, or estop the owner from enforcing the liquidated damages provision. Versions appeared in the ECA Magazine 4/03 and 5/03.
CALTRANS DISPUTE RESOLUTION BOARD SPECIFICATION FLAWS By Bernard S. Kamine
Explains why 2017 amendments to the Caltrans specifications limiting the jurisdiction of dispute resolution boards and dispute resolution advisors (essentially a one-person DRB) to just the four corners of the contract have some merit, but are done in a back-door approach that is ineffective under California law.
CONSTRAINTS ON BIDDER EXPERIENCE REQUIREMENTS By Bernard S. Kamine
Explains the test for the validity of bidder experience requirements that restrict the pool of bidders, with examples, and when experience submissions, with the bid, can be an issue of bid responsiveness, but evaluation of the bidders is always an issue of bidder responsibility.
CONSTITUTIONALITY OF DISGORGEMENT OF MONEY PAID FOR LICENSE DEFECT By Bernard S. Kamine