We have a contract with someone as their GC. They are not holding retainage on us for this project. Am I able to still hold a retainage of 10% on the subcontractors that we have on the job?
That's a contract question. If your contracts with your subs allow for you to withhold retainage, then yes you can.
Level set stated the following:
A prime contractor can only withhold retainage from their subs and suppliers if the owner is withholding retainage, and in the same amount. This is under the Ohio Retaiage Guide and FAQS on this site.
Your answer disagrees with that so what is the correct answer?
R.C. 4113.61, Ohio's Prompt Payment Act, as it relates to payment from contractors to subcontractors and suppliers, states that "the contractor may reduce the amount paid by any retainage provision contained in the contract, invoice, or purchase order between the contractor and the subcontractor or material supplier."
As such, I would argue my answer is the correct answer.
Levelset is likely referencing the fact that most contracts between GCs and subs contain a "contract documents" section that incorporates the prime contract into the sub's contract. Thus there may be some conflict between the two documents, but it would only be an issue if some sub really got into a huff about it, and even then the GC has the law and the subcontract on its side.
Thank you for the clarification!
You're welcome!