Is the GC Hiding the Ball on Owner Payments?

Here’s the scenario – your work is on schedule, your work complies with the contract documents, yet you haven’t been paid for your last 3 payment applications or two approved change orders.

What’s going on here?  Every time you follow up with the GC, you’re told that the owner is not paying. How do you know if that’s true?

You could ask other subcontractors to see if they know something you don’t.

You could contact the higher ups at the GC to try and find out.

But, if you’re working on a California public works project, there is a surefire (and easy) way to find out what the GC has submitted to the owner for payment, whether the GC had been paid, and even the status of your change orders. Hmmm …  did the GC even submit them to the owner yet?

For public works projects, you can directly submit a request for documents under the California Public Records Act (CPRA). The good news is that the request is easy to submit, and you don’t need a lawyer to help you.

Many public entities provide on-line instructions giving you the steps to follow and they often include an email address to use for sending the request. It’s easy to Google the name of the public entity along with the phrase “Public Records Request”, and you are usually provided with the webpage for that entity that explains how to submit a request.

Some examples I found in less than 30 seconds are as follows:

Caltrans: https://catc.ca.gov/pra-requests

Los Angeles Unified School District: https://www.lausd.org/Page/3137

City of San Diego: https://www.sandiego.gov/communications/public-records-requests

LADWP: https://www.ladwp.com/cpra

Now, let’s talk about what you may want to ask for in your CPRA request.

First, make your request as clear as possible by stating the correct project name and direct/prime contractor.

Also, in my experience, the fewer documents you ask for, the faster you tend to get them. So, be sure to include only the date ranges that are important to the information you are seeking.

To be very clear, you should review the prime contract’s payment and changes procedures so that you can use the same nomenclature in your request as used in the prime contract.

A typical request may look like the following:

Request for Public Records

Project/Site: ABC Elementary School Modernization; 1234 Dawson, Ave., Los

Angeles, CA

Direct Contractor:   LatePay Construction Company

Pursuant to the California Public Records Act, Government Code § 7920 et seq., we

are requesting the following documents:

“Project” as used herein refers  to the ABC Elementary School Modernization, owned

by Los Angels Unified School District (“District”), with LatePay Construction

Company (“LatePay Construction”) as the Direct Contractor.

DOCUMENTS REQUESTED

1.       LatePay Construction’s schedule of values approved by the District for the

Project.

[NOTE: Asking for this will allow you to analyze where your work is in the direct contractor’s

SOV so that you can see when your work is billed in the payment applications.]

2.       All payment applications submitted by LatePay Construction to the District

from February 1, 2025, through June 30, 2025, plus any revisions or modifications

requested or made by the District thereto.

[NOTE: this date range should match the months you have not been paid, or the months where

the direct contractor reduced the amount you asked for in your payment application to the

direct contractor.]

3.        Copies of all vouchers issued, or evidence of payments made, by the District to

LatePay Construction for payment applications submitted by LatePay Construction

to the District from February 1, 2025, through June 30, 2025.

[NOTE: Public Entities use different methods of making payments.]

4.       All claims and requests for change orders submitted by LatePay Construction

from January 1, 2025, through June 30, 2025 

[NOTE: this date range should cover the dates of any claims or change order requests you have

submitted to the direct contractor for which the direct contractor has not issued a formal

change order or payment to you].

5.       A copy of LatePay Construction’s payment and performance bond for the

Project.

[NOTE: ask for this is case payments continue to be held up and you need to make a bond

claim in the future.]

We will accept documents via email.   If we can provide any clarification that will

help expedite your attention to this request, or if you require anything further, please

feel free to call (619) 555-5555 and speak with myself or Joe Smith or email:

AStark@XYZElectric.com.           

Thank you,

Annie Stark

Project Manager

XYZ Electric

The public entity must let you know within 10 days whether it has determined if your request seeks “disclosable public records” and let you know the reasons for its determination.  It can extend the date for determination if there are unusual circumstances by no more than 14 days. If the public entity determines that what you have asked for is disclosable, then they must provide the estimated date and time when the records will be made available.

They cannot charge you for staff time to search for the records you requested, but they can charge a fee to copy or reproduce electronic copies. This is usually a per-page fee, and they have to disclose this to you before they provide the documents.

So, if you’re not being paid, don’t just wait around, don’t guess why, and if the answers just don’t add up, it is time to take matters into your own hands and get the facts. After all, it is your money at stake, and you are entitled to know what the holdup is!