Bay Cities Paving & Grading, Inc. v. Hensel Phelps Construction Co.

Opinion

CHRISTIAN, J.

Bay Cities Paving and Grading, Inc. appeals from a judgment that it take nothing upon its complaint against Hensel Phelps Construction Company.

Appellant submitted bids to respondent for excavation and asphalt paving subcontracts in connection with construction of the Bay Area Rapid Transit (BART) station at Concord, California. Respondent informed appellant that appellant’s bid for the excavation work was too high, but that appellant’s bid for the paving was almost the lowest bid. Appellant then cut its paving bid by $8,931, and respondent agreed to list appellant as its designated subcontractor for the paving.

Respondent submitted its total bid as prime contractor to BART. Included with the bid was the required “designation of subcontractors,” wherein respondent listed both itself and appellant as the subcontractors responsible for the paving and excavation work. Respondent was subsequently awarded the construction contract by BART.

After the contract was awarded, appellant asserted that it was the designated subcontractor for both the excavation and paving work, and sought an agreement from respondent that appellant perform the excavation at a price different from appellant’s subcontract bid. Respondent claimed it had specified itself as responsible for the excavation, declined appellant’s offer, and arranged for another company to perform the excavation. Respondent also offered appellant a written subcontract for the paving work, but appellant refused it. At respondent’s request, and without opposition from appellant, BART substituted another subcontractor to do the paving.

[365]

Appellant then commenced this action against respondent, alleging breach of contract and violation of the statute regulating the designation of subcontractors in public works contracts.

1

Appellant contends that the trial court erred in determining that respondent did not violate the Subletting and Subcontracting Fair Practices Act by the manner in which respondent inserted itself and appellant on its list of designated subcontractors. In its designation of subcontractors, respondent listed both itself and appellant on the same line and indicated that the portion of work to be done was excavation and asphalt paving without differentiating the work to be done by each of the parties. The purpose of the Subletting and Subcontracting Fair Practices Act is to prevent the practices of bid shopping and bid peddling in connection with public works projects.