Challenge to Asphalt Price Adjustment Fails

Kegler Brown Construction Newsletter

The Ohio Concrete Construction Association (“Association”) sued ODOT and Director Wray personally alleging that the Director had shown unfair favoritism toward the asphalt pavement industry, and attempted to enjoin the $50 million (Delaware/Morrow) I-71 widening project. And of great interest to the industry, the Association asserted that the asphalt price adjustment gave asphalt contractors a competitive advantage and sought a ruling that no form of asphalt price adjustment could be used on a project utilizing alternative or optional pavement bidding. Ohio Concrete Construction Assn. v. ODOT, Case No. 12 CV-06613, Franklin County Common Pleas Court.

Shortly after the controversial case was filed and before a hearing could be conducted on the merits, the Association dismissed its case and the contract proceeded with the low-bid asphalt contractor. The case has not been re-filed to date, but it is too early to know whether these perceived grievances of the Association are going to be reasserted or not.