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Govt. Failed To Reserve Postacceptance Remedies For Defects

Tuesday, November 01, 2011 07:59 am

 

Defective Work - Work Acceptance

James Beasley, ODOT. v. Monoko, Inc. et al, 2011 Ohio App. Lexis 3349 (10th App. Dist. Aug. 11, 2011)

The government contended that its final work acceptance was not an assurance that the contractor's work met contract specs. Unfortunately, the government's own final acceptance report contradicted that assertion.

Monoko, Inc. (Monoko) was the contractor on an Ohio Department of Transportation (ODOT) project to paint four bridges in Guernsey County, Ohio. Six years after completion, ODOT asserted claims for contract breach and unjust enrichment against Monoko and its performance bond surety for failing to properly prepare the steel surfaces of the bridges before painting. ODOT sought damages, but an earlier ruling found that because ODOT had performed a final inspection and declared the project "completed in substantial conformity with the approved plans and specifications," ODOT no longer retained the right to reject the work.

On appeal, ODOT claimed that, under the contract, it had the right to enforce the contract at the time it discovered a breach regardless of whether final acceptance had been issued. Further, ODOT contended that it didn't waive its righ [...]

 
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