LEGAL ISSUES Continued from page 20


whenever you or the Engineer considers that an authorized or antici- pated change may impact the critical path or work progress.” Te TIA must be submitted within 15 days of any proposed change to the schedule. Te TIA is, in effect, the contrac-


tor’s notice of delay. If the contractor fails to so notify the owner and fails to complete the project on time, the contractor may be liable for liquidated damages even if the owner caused the delay. In Greg Opinski v. City of Oakdale,


199 Cal.App.4th 1107 (2011), for example, the contract required the contractor, when seeking a time extension, to give written notice to the engineer “promptly (but in no event later than 30 days) after the occur- rence of the event.” Id. at 1112. Te contractor ultimately completed the project seven months late, without ever submitting a written claim to the


owner, and the owner withheld liqui- dated damages. Te contractor sued, claiming that the owner was respon- sible for the delay. Te Court refused to consider the contractor’s delay claim because it failed to provide the owner with notice of its claim. Id. Accordingly, contractors should


endeavor to strictly comply with the TIA provisions of the 2015 Standard Specifications. If more than 15 days have elapsed since a proposed change to the schedule, a contractor should still submit a TIA, because late notice is always better than no notice. Te contractor in Opinski failed to provide any notice at all, so the result might have been different if the contractor had merely been late giving notice. Further, if the contractor meets the


completion date, but encounters delays that it overcomes through acceleration, it may still be able to recover from the owner because the statute that the court relied upon in Opinski, Civil Code section 1511, only applies if


Gelman LLP Officially Changes Name Longtime AGC of California


member, accounting firm Glenn M. Gelman & Associates, changed its name to Gelman LLP, effective January 1, 2016. Te name change announced by


Managing Partner Warren Hennagin and Partner Larry Kane signified the firm’s expansion and positioning for the future. “Since the sad and unfortunate


passing of our founding partner Glenn M. Gelman, we have been committed to the firm’s continued success and growth in spite of the challenges we’ve encountered. We have expanded our leadership team to include new partners and have worked hard to provide outstanding services to our clients,” said Hennagin. Originally opening its doors in


1983, Gelman LLP has grown to offer a wide range of services to a variety


www.AGC-CA.org


there is a “want of performance of an obligation,” or, in other words, a failure to perform. In Opinski, the “want of perfor-


mance” was the contractor’s failure to complete the project on time. Terefore, although the contractor should do its best to submit the TIA within the 15 day timeline, all may not be lost if it submits the TIA promptly and/or completes the project within the time allowed under the contract. In light of the courts’ recent


tendency to strictly construe notice requirements, contractors would be wise to pay particular attention to, and strictly comply with, the notice provisions found in the new Standard Specifications. 


Erin McDonough is a founding


Partner of O’Connor Tompson McDonough Klotsche, a Northern California law firm specializing in construction law. She can be reached at erin@otmklaw.com or (916)993-4540.


MEMBER NEWS JD Supra delivers legal and business


of industries including construction, manufacturing and distribution clients and high net worth individuals. For more information on Gelman LLP, visit www.gelmanllp.com.


Wendel Rosen Partner Wins Industry Recognition Garret Murai, construction partner


at Wendel, Rosen, Black & Dean LLP, the largest law firm in the East Bay, was recently recognized by JD Supra Top Author in its inaugural Readers’ Choice Awards. Murai was honored in the Construction and Insurance categories for the high level of visibility and engagement of his articles among JD Supra’s readers in 2015.


content to professionals in all indus- tries via more than 100 proprietary social feeds, on mobile platforms, in daily email digests and as news across the web. For its 2016 Readers’ Choice Awards, JD Supra examined its 2015 reader data, identifying 36 industries and topics and recognizing the 10 authors within each category who had the highest consistent readership and engagement. Two hundred JD Supra authors were chosen as Top Authors among the more than 34,000 who currently publish on the platform. Murai was selected as the first and third most read author in the Construction and Insurance categories. Murai is the editor of Wendel


Rosen’s California Construction Law Blog, which provides an informative yet wry look at construction law in California. He serves on the Legal Advisory Committee of AGC of California among numerous other industry activities. 


Associated General Contractors of California 21


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