Lozano Smith's Construction Advice and Litigation ("CAL") practice area provides timely and cost-sensitive legal services related to public works construction projects of all kinds. We assist clients with project planning, contract language, and bid issues at the beginning of a project; project management and change orders during a project; and completion, payment, claims, and litigation at project closeout. Our dispute resolution and litigation expertise spans all controversies, whether common (extra work, delay, and stop payment notices) or complex (contractor defaults, termination, surety takeovers, and false claims). We have also successfully represented clients in disputes regarding construction consultants and construction defects.
Lozano Smith has advised and represented school districts, cities, counties, community college districts, and special districts on virtually all aspects of construction since the firm's inception in 1988. We adhere to a philosophy of helping our clients avoid costly delays and costs by proactively identifying and avoiding potential claims whenever possible, yet simultaneously protecting their interests and preparing for litigation in the event disputes cannot be resolved.
To learn more about the breadth of our construction expertise, please click on any of the following areas of expertise:
To facilitate the success of a project from its beginning, Lozano Smith coordinates with its clients to ensure that their delivery methods comply with current (and sometimes complex) legal requirements. Every project is different, and our CAL attorneys can help your agency choose from the various project alternatives that exist to best meet project goals.
Lozano Smith advises clients about advantages and disadvantages of the delivery methods, especially design-build due to its increased availability.
Effective planning at the outset of a project, along with a thorough understanding of the associated legal, economic and political challenges, provides an agency with the best opportunity to deliver a project successfully without legal conflict at its conclusion.
Lozano Smith has special expertise addressing issues unique to our school district clients. We often assist school districts with legal issues ranging from state funding to obtaining site approvals for new schools, helping them navigate the channels of the State Allocation Board, Office of Public School Construction, and California Department of Education.
After determining your delivery method, nothing is more critical to the success of your project than solid contracts to govern your relationships with your construction team members, including architects, engineers, construction managers, inspectors, and contractors. Lozano Smith draws on its vast experience in reviewing and litigating contracts to develop documents for our clients that emphasize clarity, reasonableness, and protection of our clients' rights. We draft contracts to help maximize the chances of finishing projects on time and on budget, while protecting the public agency owner from frivolous claims.
In addition to review of a public agency's current documents, we also offer sets of form contracts and related documents ready for a public agency's immediate use. These sets are updated at least annually to reflect changes in the law and best practices.
During the bidding stage, our CAL attorneys assist public agencies with pre-qualification procedures, bid protests relating to bid responsiveness and contractor responsibility, and bid withdrawals.
Lozano Smith collaborates with public agencies and their construction consultants to provide sound legal advice when a dispute arises during a project. By understanding the key factors of a dispute, our attorneys can efficiently advise a client on the immediate legal issues at hand, while at the same time preserving rights and evidence for later claims. We believe in open lines of communication between all members of the construction team and maintenance of good working relationships with contractors and consultants, while simultaneously protecting our client's interests.
Our CAL attorneys have managed and resolved disputes with contractors, subcontractors, construction managers, sureties, architects, and engineers during projects. For those occasions when work is significantly delayed, we have significant experience helping agencies get the project back on track — usually by convincing the contractor to increase its efforts, but if necessary by terminating the contractor and finishing the project with the surety or others. We also have experience with contractor defaults, and we can get your project out of the bankruptcy court as quickly as possible.
Our mission is to do everything possible to help our clients complete their projects as quickly as reasonably possible, thus minimizing claims after completion.
For completion of the work and financial closeout, our CAL attorneys help public agencies negotiate the maze of statutory requirements to avoid late payment penalties and other pitfalls. We advise public agencies on the delicate matters of withholding payments to protect an agency's interests, while not jeopardizing expeditious completion of the project. For stop payment notices, we emphasize quick extrication from any enforcement lawsuit with recovery of attorneys’ fees when possible.
At the end of a project, public agencies typically look to our firm to help resolve any remaining disputes and claims as quickly as possible, but also on reasonable and acceptable terms. Lozano Smith assists public agencies in meeting this goal by guiding them during a project toward a position of strength for closeout negotiations. For these negotiations, we evaluate our clients' options, the merits of the claims, and the cost of litigation in order to develop a dispute resolution plan tailored to our clients' goals.
We also understand the unique challenges facing our school district clients that can prevent timely completion of a project or jeopardize state financing. We are experienced in working with construction professionals to ensure that each project receives Division of State Architect close-out. Furthermore, our attorneys have advised countless school districts on post-construction Office of Public School Construction audits to ensure that State Funding is not revoked after the project is completed.
Few industries rely as heavily on alternative dispute resolution (“ADR”) as the construction industry, and Lozano Smith leads the way with extensive ADR experience during construction, closeout, and litigation. Our CAL attorneys have mediated or otherwise resolved hundreds of disputes and claims – not only after closeout (including statutory ADR procedures), but even during construction in an effort to keep the project on track.
Even if ADR is not successful, our attorneys will learn more about the other party's positions that will shape litigation strategy. In addition, we have arbitrated disputes when appropriate to quickly and less expensively resolve disputes with finality.
Bid Limits Set to Increase under Uniform Public Construction Cost Accounting Act, Along with Expanded Commission Oversight
October 2024Number 41Public project bid limits are set to increase for public agencies that have opted into the cost accounting procedures under the Uniform Public Construction Cost Accounting Act (UPCCAA). Assembly Bill (AB) 2192 has been signed by Governor Gavin Newsom and will take effect on January 1, 2025.Lawmakers drafted the bill to address construction cost increases that have occurred since the limits were last increased in 2018. The bill also increases oversight for UPCCAA projects....
U.S. Supreme Court Holds that Legislatively-Adopted Development Impact Fees Must be Related and Proportional to Development Impacts
May 2024Number 20In its recent holding in Sheetz v. County of El Dorado (2024) __ S.Ct. __ [2024 WL 1588707], the United States Supreme Court held that legislatively-adopted development impact fees are subject to constitutional scrutiny under the Takings Clause.As a condition of receiving a residential building permit, George Sheetz was required by the County of El Dorado (County) to pay a $23,420.00 traffic impact fee. The fee amount was assessed according to a fee schedule adopted by the bo...
California Environmental Quality Act (CEQA) Legislative Updates: SB 69, SB 149, & AB 356
March 2024Number 15The California Legislature recently enacted a series of updates to the California Environmental Quality Act (CEQA). Outlined below are three significant pieces of legislation: Senate Bill (SB) 69, SB 149, and Assembly Bill (AB) 356.SB 69Effective January 1, 2024, SB 69 amended Section 21152 of the Public Resources Code, providing that all environmental notices (i.e., notices of determination (NODs) and notices of exemption (NOEs) for projects that are filed with a county cl...
Progressive Design-Build Authority Has Been Expanded for Local Public Agencies
February 2024Number 11The start to 2024 brings with it some exciting changes regarding the accessibility of the progressive design-build (PDB) construction delivery method to California cities, counties, special districts, and transit districts. Before last year, there was ambiguity in the law as to whether PDB was available to local public entities for public works projects. Effective January 1, 2023, the Legislature allowed K-12 school districts to use PDB for any project over $5 million, a...
New Bill Addresses Independent Contractor Conflicts of Interest and Provides Safe Harbor
February 2024Number 10Assembly Bill (AB) 334, which became effective on January 1, 2024, clarifies conflict of interest rules for independent contractors, particularly in relation to projects that have multiple phases.BackgroundGovernment Code section 1090 (Section 1090) generally prohibits public officials and employees from having personal financial interest in contracts made in their official capacities and imposes severe penalties for violations, including voiding of contracts, civil pena...
State Allocation Board Approves Increase to Level 1 Developer Fees
January 2024 Number 6 The State Allocation Board (SAB) has approved a 7.84% increase for the "Level 1" developer fees that school districts are authorized to collect. School districts are now authorized to collect up to $5.17 per square foot of residential development and $0.84 per square foot of commercial development. The increase takes effect immediately and may now be implemented by school districts through local action. Government Code section 65995 authorizes the SAB to adopt a L...
California Court of Appeal Clarifies "Uniformity" Requirement for School Parcel Taxes
January 2024Number 2The California Court of Appeal recently upheld a parcel tax structure as approved by the voters in the Alameda Unified School District (District). In Traiman v. Alameda Unified School District (2023) 94 Cal.App.5th 89, the Appellate Court clarified the “uniformity” requirement for school district qualified special taxes.BackgroundIn March of 2020, the District’s voters approved, by the requisite two-thirds vote, a new parcel tax to fund increased salaries...
Representative Cases
San Ramon Valley Unified School District - $20 million campus expansion project – Obtained a settlement over $3 million from a surety for delay and deficiencies caused by a contractor’s failures to adequately construct two new buildings. The District had to terminate the contractor at the height of construction, and then push the surety to complete the work. |
Sequoia Union High School District - The District constructed a $35 million new high school where the contractor fell far behind schedule due to poor scheduling and coordination. Lozano Smith assisted the District in achieving completion for the start of classes despite resistance from the contractor. The District had withholdings exceeding $1.5 million, and the contractor had claims exceeding $3.6 million that alleged deficient design. At mediation, the District reached resolution where the architect paid most of the damages. |
City of Antioch - An important feature of the City’s renovated water treatment plant (the drying beds) failed to function as designed, and the City filed suit against the design engineer and the manufacturer of the drying beds. At mediation, the City recovered $1.2 million to compensate it for further design and repairs. |
Sequoia Union High School District - The District awarded an $18 million contract for construction of new multi-purpose building and a new two-story classroom. The District withheld over $900,000 for liquidated damages and stop payment notices, and the contractor claimed over $2.1 million for delay and other damages. At mediation, the District was able to settle for payment of only a small percentage of the contractor’s claim. |
City of Clovis - We recovered a $4.8 million settlement on this $28 million surface water treatment plant project from the engineer and filter provider related to insufficient water production. The filters had failed to perform as required by the contract’s specifications, and an inadequate number of filters had been included in the design. |
Kern High School District - A contractor submitted a claim for $200,000 based on material cost escalation. The District rejected the claim in writing and at mediation, after which the contractor ceased pursuit of it. |
Merced City School District - Through judicial arbitration, we successfully defended most of the contractor’s claims for extra work and delay, and after acceptance of the award successfully defended an attorneys’ fees motion by the contractor. |
Coast Unified School District - We prepared for trial and negotiated a $1.2 million settlement from the design professional related to an inadequate underground irrigation water storage system related to a $20 million new school project. |
Pajaro Valley Unified School District - On two separate elementary school projects totaling $4 million, the District withheld substantial sums to cover damages caused the contractor. One project under the control of the contractor had a fire, with the contractor refusing to compensate the District. The other project suffered construction deficiencies in the stucco and roof. The contractor sued for improper withholding and the District cross-complained for additional damages, resulting in a $1 million dispute. After discovery and expert investigation revealed additional claims for the District, the case resolved very favorably for the District a few months short of trial. |
Coast Unified School District - A school district was subject to multi-million dollar design, delay and defect claims related to construction of a new elementary school located in the Coastal Zone. The project also suffered from an inadequate Storm Water Pollution Prevention Plan (SWPPP), thus causing the school district to be fined in excess of $300,000. The litigation settled favorably for the District at mediation. |
Central Unified School District - At mediation, we obtained a $450,000 payment to the District for design and construction defects related to a pool improvement project. |
Santa Clara Valley Water District - The District entered a contract with the plaintiff to install a recycled water pipeline. As part of the original plans and specifications, the contract also called for the additional installation of fiber optic conduits. However, after award the District deleted the fiber optic work from the project since the bid on that line item was excessive. The District then added back a small portion of the fiber optic work that was within the budget. The contractor sued the District for lost profits based on the deleted work. Our attorney won summary judgment for the District based on the broad right to add and delete work, and successfully defended the decision on appeal. *Case handled by a current Lozano Smith attorney prior to employment at Lozano Smith. |
City of Stockton - During a $15 million dual grade separation project, the contractor and one of its subcontractors submitted claims of more than $3 million based on delay. Despite many issues of delay caused by utilities and railroad companies, the case settled favorably at pre-discovery mediation for under $1 million despite a significant number of delay days for which the City had to take responsibility. *Case handled by a current Lozano Smith attorney prior to employment at Lozano Smith. |
Pert Construction - Recovered in excess of $2.6 million on a construction defect and design case in Los Angeles Superior Court where the contractor’s failure to adequately waterproof a pre-existing structure during construction resulted in extensive water infiltration and damage. *Case handled by a current Lozano Smith attorney prior to employment at Lozano Smith. |