On Wednesday, February 2, 2011, the Ohio Supreme Court granted an “alternative writ” of mandamus, accepting the American Subcontractors Association and the Surety Association case against The Ohio State University, for failing to require a surety bond on the Pilot Project suspending competitive bidding law. See Complaint, Answer, Court Order attached.
The OSU Pilot Project legislation House Bill 318 expressly required a bond, but OSU administrators gained significant cost savings by not requiring a bond on the $1 billion project. Ohio law provides that subcontractors can sue upon a prime contractor’s performance bond for non-payment. The Complaint contends that failure to post the bond not only leaves OSU without recourse for non-performance, but also leaves Subcontractors without financial assurance.
Normally, a state agency will move to dismiss a complaint in mandamus, and argue the legal merits alone. However, OSU admits that the law requires a bond, and that OSU did not require one, claiming that the Construction Manager at risk instead posted a $20 million letter of credit. So the Court will allow both sides to file evidence, and then consider both the factual and legal issues.
The ASA and Sureties must file their Merit Brief in 30 days; any amicus curiae likewise must file by Friday, March 4, 2011. OSU and its amicus curiae then have 20 days more, Thursday, March 24, 2011.