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Can you file a bond claim when close out documents are still pending if the claim is on retaiange?

TennesseeBond Claims

We have a project that has a balance of only retainage left on it. The contractor asked for close out documents to be worked on, almost 3 weeks ago. The very next day I reached out to the vendor because 3 of those documents have to come from them. They still haven't sent them and aren't responding so we aren't able to complete our close outs. Will we still be able to file our bond claim when the GC states they won't pay until close outs are submitted?

1 reply

Dec 3, 2018

That's a good question, and that problem isn't terribly uncommon. First, it's worth noting that it could be very helpful to discuss this matter with the general contractor to inform them of the hold up. If the GC is aware of the problem, they may be able to help put pressure on the vendor to release that relevant documentation. At the very least, those discussions can help prevent this spark of an issue from turning into a full blown fire. Next, it's worth noting that the deadline to file a Tennessee bond claim is 90 days after the claimant's last furnishing (and also within 90 days after project completion). Thus, there may still be time to resolve the issue prior to a bond claim becoming necessary. When another party has gone silent, it's often worthwhile to ramp-up communication efforts - meaning, all forms of communication should be attempted (email, phone calls, text messages, and if necessary - and possible - letters or in-person visits). Regarding whether missing documentation will prevent a bond claim - likely, a bond claim may be made even where closeout paperwork has not been submitted. However, the effectiveness of such a claim could certainly be brought into question when nonpayment has occurred because the claimant did not provide closeout paperwork. While such a claim could be made, and could potentially be effective, avoiding adversarial claims and attempting to work along with other project stakeholders is often a better move.

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