ODOT Final Acceptance is Final Indeed
Kegler Brown Construction Newsletter September 1, 2009
It is well known that ODOT has taken an aggressive stance toward bridge painting inspections and has sought recovery against contractors and their bonding companies for allegedly substandard work, even when the bridges passed ODOT final inspections.
A Referee in the Ohio Court of Claims has now had occasion to determine the legal significance of “final acceptance” when the owner believes that sub-standard work is discovered later.
The Referee ruled that while periodic inspections (and payments) did not prevent ODOT from subsequently revisiting and rejecting previously approved work, this option was not available after FINAL acceptance. Beasley v. Manako, 2009-Ohio-5319.
Whether there would have been a different result had ODOT argued that the defects were “latent” (hidden and not discoverable by ordinary inspection) is not known, as ODOT’s painting “expert” concluded that the defects were substantial and pervasive, and seen in an ordinary inspection. Contractors will likely use this decision to support their position that final acceptance is indeed “final” and should not be revisited months or years later.