Abandonment and Cardinal Change on State and Local

Contracts for state and local public construction projects

typically contain clauses stating how contractors may

recover compensation for increased costs due to changes

or additions to the scope of work. Such clauses may

include written change order, notice, and approval

requirements, and unit prices for increased material quan-

tities. They also may limit the contractor’s recovery for

change impacts by setting fixed overhead recovery per-

centages, by restricting total value to a capped amount

(e.g., the contract price), or by stating that certain impacts

are not recoverable.

But what happens when the number or scope of

changes on a public project are excessive, such that they

go beyond what either party anticipated at contracting? In

those circumstances, contract clauses may be inadequate

to compensate the contractor because the impacts of those

changes exceed what the contractor included in its con-

tract price or can add onto the contract under contract

procedures. Unless the contractor is allowed to go beyond

the contract for a remedy, it will be faced with the difficult

decision of whether to incur costs it cannot recover or

walk off the job and risk a default termination. In many

jurisdictions, contractors need not face such a decision

because they can recover under the doctrines of abandon-

ment and cardinal change.

The doctrines of abandonment and cardinal change

provide that a contractor may recover its increased costs

in quantum meruit where they result from excessive,

o w n e r-directed changes to a project, beyond what the par-

ties could have reasonably anticipated at contracting.

Contract provisions concerning change procedures and

pricing do not apply to a claim for these costs. Under

these circumstances, the owner is said to have “aban-

doned” the contract or made a “cardinal change” to the

contract. Different jurisdictions use different terminology

(although, as discussed below, at least one jurisdiction,

California, treats the doctrines differently).

This article discusses the different state laws affecting

recovery under the doctrines of abandonment and cardi-

nal change on public projects. As will be apparent, a

s t a t e ’s law is not always clear.

Many Jurisdictions Recognize Abandonment or

Cardinal Change Generally

The abandonment and cardinal change doctrines are

widely accepted. Courts applying federal contract law

have recognized the cardinal change doctrine since the

1 9 6 0 s .

For private construction projects, some form of

abandonment or cardinal change doctrine has been

expressly recognized under the laws of at least 23 states

and Puerto Rico,

and the doctrine has been implicitly

recognized by at least four other states and the District of

C o l u m b i a .

It is unclear in many of those jurisdictions,

h o w e v e r, whether the courts would apply the doctrine to

public projects. In one jurisdiction, California, the state

supreme court has explicitly ruled that abandonment,

while available for private projects, is n o t available for

public projects.

Whether abandonment and cardinal change claims are

viable on any type of project remains an open question in

all but one of the remaining 23 states. The exception is

Mississippi, which has expressly rejected the abandonment

and cardinal change doctrines for all projects.

Abandonment versus Cardinal Change

Most jurisdictions that recognize the abandonment and

cardinal change doctrines make no distinction between

the two doctrines. In those jurisdictions, either or both

doctrines allow for contractor claims for added costs

caused by excessive changes beyond the general scope of

work of the contract. For example, in L.K. Comstock &

Co., Inc. v. Becon Constr. Co., Inc.,

which involved a

private construction project, the Eastern District of

Kentucky discussed the two theories separately, but noted

that both doctrines address “situations where ordered

changes exceed the general scope of the contract” and

that “[r]egardless of which theory is applied, the result is

the same: the party performing the work is entitled to

seek a remedy outside the contract for the reasonable

value of work performed.”

In the case before it, the dis-

trict court found that the changes ordered were within

the parties’ expectations at contracting and so rejected

the contractors’ claim under both the abandonment and

cardinal change theories.

California is the exception. In Amelco Electric v. City

of Thousand Oaks, the California Supreme Court distin-

guished the doctrines, calling them “fundamentally differ-

e n t . ”

According to the court, under an abandonment

claim, the contractor is entitled to recover its total cost

(less payments received) for work both before and after

the contract was abandoned. In contrast, under a cardinal

change claim, the contractor is only entitled to breach of

contract damages for the additional work constituting a

cardinal change. While the court rejected a public con-

t r a c t o r ’s right to bring an abandonment claim, it purport-

ed not to address a contractor’s right to bring a cardinal

change claim.

1 0

Abandonment and Cardinal Change on State

and Local Construction Pro j e c t s

A R O N

P. S

I L B E R M A N

Aaron P. Silberman is a shareholder at Rogers Joseph O’Donnell &

Phillips in San Francisco, California.

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“Abandonment & Cardinal Change on State & Local Construction” by Aaron P. Silberman, published in The Procurement Lawyer, Volume 9, No.3,

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prclawSPR04 6/21/04 5:12 PM Page 17

substantial changes to the project while giving Amelco no

extra time to complete the additional work.”

1 6

As a result,

the City issued more than 1,000 sketches to clarify or

change the original contract drawings, nearly a quarter of

which affected the electrical cost. The City agreed to only

31 of Amelco’s 221 requested change orders, increasing

the contract price by $1 million. At the end of the project,

Amelco filed a claim against the City that eventually

totaled more than $2 million for the additional uncom-

pensated work, based on a theory that the City abandoned

the original contract through its excessive change orders.

The City denied Amelco’s claim.

Amelco sued the City under an abandonment theory

of liability. Under that theory, existing California case law

held that a contractor could recover from a private owner

for the reasonable value of its services where the owner

had made so many changes to a contract that it could be

deemed to have abandoned the contract.

1 7

At trial, the

court allowed Amelco to submit evidence of its damages

under an abandonment theory, and Amelco prevailed.

After the court of appeal affirmed, the City appealed to

the California Supreme Court.

The California Supreme Court reversed the court of

a p p e a l ’s decision, holding that a contractor cannot recov-

er against a public owner under the theory of abandon-

ment. The court relied on California’s void contract rule

that prohibits a contractor from being paid for work per-

formed under a contract that is subsequently declared

void because the public owner was not authorized to

award the contract in the first place.

1 8

In A m e l c o, the

court extended the application of this rule from problems

that arise during the bidding of a contract to problems

that arise during performance. The court concluded that

allowing abandonment claims in the public works con-

text would render the concept of competitive bidding

m e a n i n g l e s s .

1 9

Although the court did not reach the issue of whether

a cardinal change claim would be viable on public projects

in California, it is unclear under the court’s logic how

contractors could assert cardinal change claims against

public owners when they cannot bring abandonment

claims against such owners.

2 0

In their dissent, two justices noted that most jurisdic-

tions allow abandonment claims and that, under the

majority decision, California becomes the first jurisdic-

tion to allow abandonment claims for private but not

public projects.

2 1

The dissent opined that allowing aban-

donment claims for public projects would benefit the

public because it would deter poor construction planning

and management by public entities and because disallow-

ing such claims would lead contractors to stop building

where the public owner had imposed excessive changes,

rather than continuing to work at the risk of never get-

ting paid.

2 2

More recently, a California court of appeal has inter-

preted the rule in A m e l c o as applying only to contractor

claims made directly to public owners.

2 3

In S e h u l s t e r

D i ff e rent Jurisdictions’ Approaches to Abandonment

and Cardinal Change

Mississippi does not allow contractors to recover for

abandonment or cardinal change on any type of project.

According to a federal district court (the only court to

opine on the issue), Mississippi law does not allow public

or private contractors to recover under an abandonment

or cardinal change theory. The seminal case is L i t t o n

Systems, Inc. v. Frigitemp Corp., which involved a dispute

between the prime contractor and one of its subcontrac-

tors on a federal project.

1 1

In that case, Litton had hired

Frigitemp as a subcontractor for its construction of

Landing Helicopter Assault vessels for the United States.

After Litton sued Frigitemp for backcharges, Frigitemp

countersued on several grounds, including cardinal

change, seeking recovery for extra work in quantum

meruit. The district court granted Litton’s motion for

summary judgment on Frigitemp’s cardinal change claim,

holding that such claims are not recognized under

Mississippi law.

1 2

In Litton Systems, Frigitemp had submitted evidence

that “large scale changes were made to the contract work

during the course of construction” and expert testimony

that those changes “were so massive that no one could

have anticipated them at the time of contracting.”

1 3

Frigitemp relied on cardinal change cases, primarily from

the U.S. Court of Claims, none of which applied

Mississippi law. The district court refused to follow those

cases, relying instead on Mississippi court decisions stating

that, in order to recover under quantum meruit, a party

must show (1) that it performed work that was not antici-

pated by the contract and (2) that there were no provi-

sions in the contract concerning payment for unanticipat-

ed extra work. Since Frigitemp could not prove the latter

element, its claim failed as a matter of law.

1 4

California allows prime contractors to recover for

abandonment only on private jobs, but allows subcon-

tractors to recover from prime contractors both on pri-

vate and public jobs. In Amelco Electric v. City of

Thousand Oaks,

1 5

California became the first jurisdiction

to make a distinction between private and public projects

with regard to abandonment claims, allowing prime con-

tractors to recover on such claims only for private jobs.

The California Supreme Court held in A m e l c o that a

contractor cannot rely on the abandonment theory of lia-

bility to recover its added costs from a public owner

where the owner made excessive changes beyond the ini-

tial scope of the contractor’s work.

The facts in A m e l c o provide a textbook case for an

abandonment claim. A m e l c o arose from a contract to pro-

vide electrical work as part of the construction of a civic

arts plaza. The City of Thousand Oaks awarded Amelco

the contract after Amelco presented the low bid of $6.1

million. As the dissenting opinion noted, “It appears the

City let the project out for bid before its plans were suffi-

ciently complete . . ., and then imposed numerous and

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prclawSPR04 6/21/04 5:12 PM Page 18

Tu n n e l s / P r e - C o n v. Traylor Bros. Inc./Obayashi Corp., the

court held that A m e l c o does not preclude a subcontractor

on a public project from recovering from the prime con-

tractor under an abandonment theory.

In S e h u l s t e r, Traylor Brothers contracted with the City

of San Diego to build a tunnel and subcontracted with

Sehulster for the manufacture and supply of tunnel ring

segments. After Traylor Brothers made substantial

changes to its purchase order, Sehulster submitted a claim

for cost overruns it attributed to the changes. When

Traylor Brothers rejected the claim, Sehulster sued for

breach of contract and abandonment, and Tr a y l o r

Brothers cross-complained against the city for indemnity.

The jury awarded Sehulster $2.8 million in damages and

determined that Traylor Brothers was entitled to 30 per-

cent indemnity from the city.

The court of appeal affirmed the abandonment award,

but reversed the indemnity determination. It

found that “the public policy considerations

underlying the Supreme Court’s decision [in

A m e l c o] do not apply in the context of two con-

tracting private entities.”

2 4

Since the court also

found that Traylor Brothers was not entitled to

implied contractual indemnity under the partic-

ular facts of the case, it declined to consider

whether Amelco would preclude a contractor

from recovering from the public owner under an implied

contractual indemnity theory where it has incurred liabil-

ity under an abandonment theory.

2 5

Eight states and Puerto Rico expressly or implicitly

allow contractors to recover for abandonment on public

j o b s . In contrast to California and Mississippi, at least

eight other states (Arizona, Arkansas, Illinois, Maine, New

York, Oregon, Washington, and Wyoming) and Puerto

Rico have allowed abandonment claims against public

o w n e r s .

2 6

All of those jurisdictions, except Maine and

Wyoming, have expressly allowed such claims. A court in

Wyoming has simply assumed the doctrine applies to pub-

lic contracts, asking instead whether it should also apply to

private jobs.

2 7

And the Supreme Judicial Court in Maine

implicitly recognized the cardinal change doctrine in a

public contract case, although it declined to apply the doc-

trine on the facts before it.

2 8

An Arkansas decision, Housing Authority of Te x a r k a n a

v. E.W. Johnson Constr. Co.,

2 9

is typical of courts’ applica-

tion of the abandonment theory to public contracts.

There, a city had directed numerous changes,

3 0

which the

trial court found constituted a breach of contract in find-

ing for the contractor.

3 1

On appeal, the city argued “that

the contract permits the owner to make changes in the

work of the contractor without invalidating the con-

t r a c t . ”

3 2

The Arkansas Supreme Court was unpersuaded

and affirmed the trial court holding that the city

“breached the warranty of the plans and specifications

submitted to the [contractor] resulting in cardinal

changes in the contract.”

3 3

Another example of a court applying the abandon-

ment doctrine to a public project is the Arizona court’s

decision in County of Greenlee v. We b s t e r .

3 4

In that case,

the plaintiff contracted with the County of Greenlee to

construct and improve a roadway. During construction,

the county made many alterations in its plans and specifi-

cations, resulting in alteration of the quantity, location,

and extent of the work. The contractor sued for breach of

contract, contending that the county’s alterations were

unreasonable and changed the general character of the

contract. After the trial court denied the county’s request

for dismissal, the county appealed. Citing Cook County v.

H a r m s, an abandonment case involving a public project

in Illinois,

3 5

the court stated that changes clauses general-

ly cover “only such alterations as are incident to and in

aid of the main contract,” and do not cover “[c]hanges

that radically extend the amount of the work, or that

eliminate large portions of the work, or that greatly

increase the cost thereof.”

3 6

On this basis, the court con-

cluded the contractor was not entitled to recover under

the contract, but was entitled to recover in quantum

meruit. Since the contractor had not pled a quantum

meruit claim, the appellate court directed the trial court

to dismiss the contractor’s breach of contract complaint.

Eighteen other states and Washington, D.C., allow

contractors to recover for abandonment on private jobs,

but whether they would allow recovery on public jobs

has not been decided. Many other states have adopted

the abandonment doctrine or something similar for pri-

vate contracts, but have not addressed the doctrine’s

applicability to public jobs, at least not in any reported

decisions. States that have expressly recognized abandon-

ment or cardinal change on private projects, but have not

addressed public projects, include Alabama, Colorado,

Indiana, Kentucky, Louisiana, Maryland, Michigan,

Minnesota, Missouri, Nevada, Ohio, South Dakota,

Texas, Utah, and Wi s c o n s i n .

3 7

Three more states—

Oklahoma, Pennsylvania and Rhode Island—and

Washington, D.C., have also implicitly recognized aban-

donment or cardinal change, but have only done so in

the context of private jobs.

3 8

No reported case has decid-

ed whether any of these jurisdictions would allow recov-

ery under either theory on public jobs.

At least one jurisdiction, Michigan, has limited appli-

cation of the abandonment doctrine in a way that would

likely preclude abandonment recovery on public jobs.

S p e c i f i c a l l y, in R.M. Ta y l o r, Inc. v. General Motors Corp.,

the Eighth Circuit held that abandonment claims are not

allowed under Michigan law where the parties’ contract

Many states have adopted the abandonment

doctrine for private contracts, but have not

a d d r essed the doctrine’s applicability to public jobs.

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“Abandonment & Cardinal Change on State & Local Construction” by Aaron P. Silberman, published in The Procurement Lawyer, Volume 9, No.3,

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prclawSPR04 6/21/04 5:12 PM Page 19

contains a change order clause.

3 9

Since such clauses are

c o m m o n l y, if not always, used in public contracts, this

limitation effectively eliminates abandonment claims on

such projects in Michigan. Unlike Michigan, most juris-

dictions that allow abandonment claims have not

imposed this limitation.

4 0

Other than Michigan and, of course, California, most

jurisdictions that have recognized abandonment for pri-

vate projects would likely recognize the doctrine for pub-

lic projects as well. California’s refusal to allow abandon-

ment claims on public jobs depends on its “void contract

r u l e , ”

4 1

which is not the law in most states. Without that

rule, California’s rationale for distinguishing between pri-

vate and public jobs for purposes of allowing contractor

recovery would not apply.

The remaining 22 states have neither recognized nor

rejected recovery for abandonment. The courts in 22

states have not yet considered abandonment or cardinal

change in any reported decision. In most, if not all, of

these jurisdictions, contractors could assert claims under

either theory based on basic contract and waiver princi-

ples. The courts in these jurisdictions would likely follow

the majority rule and allow recovery on private and pub-

lic jobs, unless they have a void contract rule similar to

that in California.

Conclusion

When projects go bad, contractors need to look at the

possibility of asserting abandonment or cardinal change

claims. In some jurisdictions, such claims have been

explicitly recognized for public projects. Many other juris-

dictions have recognized either or both theories in the

context of private jobs, but have not addressed whether

they would allow recovery for public jobs. In still others,

the door is open under the right facts to assert an aban-

donment or cardinal change claim under basic contract

and waiver principles. For public projects in California

and all projects in Mississippi, however, that door has been

shut. Whether other jurisdictions choose to follow Cali-

fornia or Mississippi in this regard remains to be seen.

Endnotes

1. See, e.g., In re Boston Shipyard Corp., 886 F.2d 451, 456 (1st

Cir. 1989); Edward R. Marden Corp. v. United States, 442 F.2d

364, 369 (Ct. Cl. 1971); Air-A-Plane Corp. v. United States, 408

F.2d 1030, 1033 (Ct. Cl. 1969).

2. A l a b a m a : Hutchinson v. Cullum, 23 Ala. 622 (1853);

A r i z o n a : County of Greenlee v. Webster, 25 Ariz. 183 (1923);

A r k a n s a s : Hous. Auth. of Texarkana v. E. W. Johnson Constr.

Co., 264 Ark. 523 (1978); C a l i f o r n i a : C. Norman Peterson Co. v.

Container Corp. of Am., 172 Cal. App. 3d 628 (1985); C o l o r a d o :

H.T.C. Corp. v. Olds, 486 P.2d 463, 466 (Colo. App. 1971);

I l l i n o i s : Cook County v. Harms, 108 Ill. 151 (1883); I n d i a n a :

Rudd v. Anderson, 285 N.E.2d 836 (Ind. App. 1972); K e n t u c k y :

L.K. Comstock & Co. v. Becon Constr. Co., 932 F. Supp. 906, 933

(E.D. Ky. 1993) (applying Kentucky law); L o u i s i a n a : Nat Harrison

Assoc., Inc. v. Gulf States Utilities Co., 491 F.2d 578, 583, r e h ’ g

d e n i e d , 493 F.2d 1405 (5th Cir. 1974) (applying Louisiana law);

M a r y l a n d : Westinghouse Elec. Corp. v. Garrett Corp., 437 F.

Supp. 1301, 1332 (D. Md. 1977) (applying Maryland law);

M i c h i g a n : R. M. Taylor, Inc. v. General Motors Corp. 187 F.3d

809 (8th Cir. 1999), cert. denied, 528 U.S. 1159 (2000) (applying

Michigan law); M i n n e s o t a : Fuller Co. v. Brown Minneapolis Tank

& Fabricating Co., 678 F. Supp. 506, 509 (E.D. Pa. 1987) (applying

Minnesota law); M i s s o u r i : Baerveldt & Honig Constr. Co. v. Dye

Candy Co., 212 S.W.2d 65, 69 (Mo. 1948); Havens Steel Co. v.

Randolph Eng’g Co., 613 F. Supp. 514, 533 (W.D. Mo. 1985);

N e v a d a : Paterson v. Condos, 55 Nev. 134 (1934); New York:

Kole v. Brown, 13 A.D.2d 920 (1961); O h i o : Oberer Constr. Co.

v. Park Plaza, Inc., 179 N.E.2d 168, 171 (Oh. Ct. App. 1961);

O r e g o n : Hayden v. Astoria, 74 Or. 525, 533 (1915); Puerto Rico:

Paul N. Howard Co. v. Puerto Rico Aqueduct & Sewer Auth., No.

80–0743(RA), slip op. (D.P.R. 8/23/83) at 37b, a f f ’ d, 744 F.2d 880

(1st Cir. 1984), cert. denied, 469 U.S. 1191 (1985); South Dakota:

Peter Kiewit Sons’ Co. v. Summit Constr. Co., 422 F.2d 242,

254–55 (8th Cir. 1969) (applying South Dakota law); T e x a s : N a t ’ l

Envtl. Service Co., Inc. v. Homeplace Homes, Inc., 961 S.W.2d

632, 635 (Tex. App. 1998); U t a h : Rhodes v. Clute, 53 P. 990 (Ut.

1898); W a s h i n g t o n : Kieburtz v. City of Seattle, 84 Wash. 196

(1915); W i s c o n s i n : Olbert v. Ede, 156 N.W.2d 422 (Wis. 1968);

and W y o m i n g : Scherer Constr., LLC v. Hedquist Constr., Inc., 18

P.3d 645, 656 (Wyo. 2001).

3. District of Columbia: Blake Constr. Co., Inc. v. C. J.

Coakley Co., Inc., 431 A.2d 569, 578–79 (D.C. Ct. App. 1981);

M a i n e : Claude Dubois Excavating v. Kittery, 634 A.2d 1299,

1301–02 (Me. 1993); O k l a h o m a : Watt Plumbing, Air

Conditioning & Elec., Inc. v. Tulsa Rig, Reel & Mfg. Co., 533 P.2d

980 (Okla. 1975) (rejecting subcontractor’s claim, and distinguish-

ing cardinal change cases, based on express agreements between

subcontractor and contractor regarding compensation for each

change before altered work was performed); P e n n s y l v a n i a : E . C .

Ernst, Inc. v. Koppers Co., Inc., 476 F. Supp. 729, 757–58 (W.D.

Pa. 1979); Rhode Island: Clark-Fitzpatrick, Inc./Franki Found. Co.

v. Gill, 652 A.2d 440, 442 (R.I. 1994) (judgment below awarded

contractor damages for cardinal change claim).

4. 27 Cal. 4th 228 (2002). The California Supreme Court

denied Amelco’s application for rehearing on March 13, 2002.

Amelco Elec. v. City of Thousand Oaks, 2002 Cal. LEXIS 1689

( 3 / 1 3 / 0 2 ) .

5. Litton Sys., Inc. v. Frigitemp Corp., 613 F. Supp. 1377 (S.D.

Miss. 1985) (applying Mississippi law) (citing Jackson v. Sam

Finley, 366 F.2d 148 (5th Cir. 1966)); Citizens Nat’l Bank v. L.L.

Glascock, Inc., 243 So. 2d 67 (Miss. 1971); Delta Constr. Co. v.

City of Jackson, 198 So. 2d 592 (Miss. 1967); and Redd v. L&A

Contracting Co., 151 So. 2d 205 (Miss. 1963)). In L i t t o n, the

District Court quotes R e d d, 151 So. 2d at 208, stating that “where

there is a contract, parties may not abandon same and resort to

quantum meruit.” 613 F. Supp. at 1382. The court then concludes

that “Mississippi does not subscribe to the cardinal change doc-

trine.” I d . at 1384.

6. 932 F. Supp. 906 (E.D. Ky. 1993).

7. Id. at 939.

8. I d . at 935–36, 946; see also Scheck Mech. Corp. v. Borden,

Inc., 186 F. Supp. 2d 724, 734–35 (W.D. Ky. 2001).

9. 27 Cal. 4th 228, 238 (2002).

10. 27 Cal. 4th 228, 238 (2002).

11. See supra note 5.

12. I d. at 1382–84 (citing Jackson v. Sam Finley, 366 F.2d 148

(5th Cir. 1966)) (“Mississippi does not subscribe to the cardinal

change doctrine. . . .”).

13. I d . at 1381.

14. I d . at 1382 (citing Citizens Nat’l Bank v. L.L. Glascock, Inc.,

243 So. 2d 67 (Miss. 1971); Delta Constr. Co. v. City of Jackson,

198 So. 2d 592 (Miss. 1967); Redd v. L&A Contracting Co., 151

So. 2d 205 (1963)).

15. 27 Cal. 4th 228 (2002).

16. A m e l c o, 27 Cal. 4th at 251-52 (J. Werdegar, dissenting).

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Co., No. 80–0743(RA), slip op. (D.P.R. 8/23/83) at 37b, a f f ’ d, 744

F.2d 880 (1st Cir. 1984), cert. denied, 469 U.S. 1191 (1985); see also

Stuart A. Weinstein-Bacal, Construction in Puerto Rico: Navigating

the Legal Quagmire, 71 R

E V

. J

U R

. U. P.R. 29 (2002).

27. Scherer Constr., LLC v. Hedquist Constr., Inc., 18 P.3d 645,

656 (Wyo. 2001).

28. Claude Dubois Excavating v. Kittery, 634 A.2d 1299,

1301–02 (Me. 1993).

29. 264 Ark. 523 (1978).

30. I d . at 528 n.2.

31. I d . at 532–33.

32. I d . at 533.

33. I d . at 525, 529, 535.

34. 25 Ariz. 183.

35. 108 Ill. 151.

36. 25 Ariz. at 191–92.

37. S e e s u p r a note 2.

38. S e e s u p r a note 3.

39. 187 F.3d 809, 813–14 (8th Cir. 1999) (applying Michigan law).

40. See, e.g., Peter Kiewit Sons’, 422 F.2d 242, 254-55 (8th Cir.

1969) (applying South Dakota law) and Bogert Constr. Co. v.

Lakebrink, 404 S.W.2d 779, 782 (Mo. Ct. App. 1966) (both cited

by R.M. Taylor, 187 F.3d at 813–14).

41. A m e l c o, 27 Cal. 4th at 238.

17. I d . at 235–36 (majority opin., citing C. Norman Peterson Co.

v. Container Corp. of Am., 172 Cal. App. 3d 628 (1985);

Daugherty Co. v. Kimberly-Clark Corp., 14 Cal. App. 3d 151

(1971); Opdyke & Butler v. Silver, 111 Cal. App. 2d 912 (1952)).

18. I d . at 238 (citing Miller v. McKinnon, 20 Cal. 2d 83, 87–88

(1942); Zottman v. City and County of San Francisco, 20 Cal. 96,

99–102 (1862)).

19. I d . at 238–39.

20. 27 Cal. 4th at 238.

21. I d . at 248–49 (J. Werdegar, dissenting).

22. I d . at 252–53.

23. Sehulster Tunnels/Pre-Con v. Traylor Bros. Inc./Obayashi

Corp., 111 Cal. App. 4th 1328, 1343–45 (2003).

24. I d . at 1344–45.

25. I d . at 1352 n.22.

26. County of Greenlee v. Webster, 25 Ariz. 183 (1923); Hous.

Auth. of Texarkana v. E. W. Johnson Constr. Co., 264 Ark. 523

(1978); Cook County v. Harms, 108 Ill. 151 (1883); Claude

Dubois Excavating v. Kittery, 634 A.2d 1299, 1301–02 (Me.

1993); Westcott v. State, 36 N.Y.S.2d 23 (1942); Hayden v.

Astoria, 74 Or. 525 (1915); Kieburtz v. City of Seattle, 84 Wash.

196 (1915); Scherer Constr., LLC v. Hedquist Constr., Inc., 18

P.3d 645, 656 (Wyo. 2001) (assumes, without deciding, that cardi-

nal change doctrine applies to public owners); Paul N. Howard

Number 3 • Volume 39 • Spring 2004 • American Bar Association • The Procurement Lawyer • 21

“Abandonment & Cardinal Change on State & Local Construction” by Aaron P. Silberman, published in The Procurement Lawyer, Volume 9, No.3,

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the

American Bar Association.

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