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Patrick, Esq.
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We had work on a prevailing wage job for county of los angeles.

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We had work on a prevailing wage job for county of los angeles. we hired contractor to perform labor on this job. We were asked and authorized to work overtime on this job over labor day weekend. We submitted a change order for the authorized overtime costs. At the end of the job, the contractor refused to pay the overtime cost, saying that contractor did not finish job on time. There was no performance clause on this job, and the contractor also caused some of the delays on this job for the sub-contractor to not finish according to their schedule (which was not achievable even with overtime). How can we recoup the cost of this labor that was already paid to the sub's employees?
Hello and thank you for entrusting me to answer your question. I'm sorry to hear about this predicament you have found yourself in.

If overtime was authorized via email, that would constitute a subsequent modifiction of your contract and would be as enforceable as any other clause of the agreement.

In order to withhold payment under a contract (and payment for agreed upon overtime is a payment 'under a contract'), the withholding party must ordinarily demonstrate that the contractor failed to tender "substantial performance."

"Substantial performance" in contract law means that there has been no willful departure from the terms of the contract, and no omission of any of its essential parts, and that the contractor has in good faith performed all of its substantive terms. If substantial performance has occurred, a contractor will not be held to have forfeited his right to a recovery by reason of trivial defects or imperfections in the work performed. Connell v. Higgins (1915) 170 Cal. 541, 556.

Failure to timely complete a project may or may not qualify as a failure to substantially perform--it really depends on the parties expectations, the ramifications of the delay, and the fault of the parties with regard to the delay.

If the delays were negligible and the party seeking to withhold payment contributed to the delay, as you indicate was the case, it would be very hard to argue that the delay constituted a failure to tender substantial performance and thus warranted the withholding of payments due under the contract.

These would be the arguments that an individual in your circumstance would want to assert in demanding reimbursement for the overtime. These arguments could be asserted in arbitration, or in a civil lawsuit for breach of contract to compel payment of the unreimbursed amounts.

Please let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.

There is no hard and fast rule as to what qualifies as "reasonable," as each case is judged under the unique circumstances and expectations existing between the parties.
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