California Court of Appeal Holds that Prime Contractor Is Not Liable to Subcontractor Under the Subletting and Subcontracting Fair Practices Act for Failing to Grant a Subcontract where Subsequent Change Order Eliminates the Subcontractor's Work

In Affholder, Inc. v. Mitchell Engineering, Inc. (App. 1 Dist. 2007) 153 Cal.App.4th 510, the First Appellate District Court held that a prime contractor is not liable under the Subletting and Subcontracting Fair Practices Act (California Public Contract Code Section 4100 et sq.) for failing to grant a subcontract to the subcontractor originally listed in a public agency project bid, which was accepted by the public agency, where the public agency subsequently granted a change order that effectively deleted the work the subcontractor bid to perform and added new work which the subcontractor did not bid and was not listed to perform. The court noted that if a change order calls for the performance of new work that can reasonably be construed as outside the scope of the originally specified work, then Section 4107(c) of the Public Contract Code permits the prime contractor to subcontract out that work even though no subcontractor was initially specified in the bid.