Spearin Doctrine Permits California Contractor to Recover for Extra Work Despite Public Agency's Written Change Order Requirement

In Weeshoff Constr. Co. v. Los Angeles County Flood Control Dist., 152 Cal.Rptr. 19 (1979), a general contractor recovered compensation for extra work on a public works project based upon the court finding the public agency waived the requirement for written change orders.  The Weeshoff court based its ruling on precedence involving private parties.  In the last few years, California Courts of Appeal have precluded engineers performing work for public agencies from recovering for extra work because they failed to comply with the written change order requirements in their contracts.  See P&D Consultants, Inc. v. City of Carlsbad, 119 Cal.Rptr.3d 253 (2010); Katsura v. City of San Buenaventura, 65 Cal.Rptr.3d 762 (2007).

In a recent case, a general contractor, G. Voskanian Construction, entered into two construction contracts with the Alhambra Unified School District.  G. Voskanian Construction, Inc. v. Alhambra Unified School District, 139 Cal.Rptr.3d 286 (2012).  Under one contract G. Voskanian agreed to move portable buildings.  Under the other it agreed to install a fire alarm system in the relocated buildings.  The plans for the fire alarm contract, however, did not identify all the classrooms within the portable buildings, thereby necessitating extra work.  The school district refused to pay the contractor for extra work under both contracts based upon the contractor's failure to comply with the standard contractual requirement for issuance of written change orders before extra work is performed.

The G. Voskanian Court affirmed the contractor's recovery for extra work on the relocation contract because the school district had executed written change orders after completion of the work.  The timing of the issuance was held to be irrelevant.  The school district had not, however, issued any written change orders under the fire alarm contract.  The Court of Appeal permitted G. Voskanian to recover for the work because the school district's issuance of incorrect plans was a breach of the implied warranty of their correctness.  The school district's legal argument that oral modifications of a public works contract are unenforceable was simply irrelevant according to the Court of Appeal.