Ohio Bond Claim Guide and FAQs

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Ohio-Bond-Claims

Ohio Bond Claim Overview

Ohio

Preliminary Notice Deadlines
None / not applicable.

Ohio

Bond Claim Deadlines
Prime contractors cannot file a claim against their own payment bond.

Ohio

Preliminary Notice Deadlines
21 Days

Claimants must serve a Notice of Furnishing on the prime contract within 21 days from first furnishing labor or materials to the public improvement.

Send Your Notice

Ohio

Bond Claim Deadlines
90 Days

Bond claims must be filed after the claimant’s last furnishing of labor or materials to the public improvement, but no later than 90 days after completion and acceptance of the public improvement. An enforcement lawsuit must be filed within 60 days after the service of the affidavit.

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Ohio

Preliminary Notice Deadlines
21 Days

Claimants must serve a Notice of Furnishing on the prime contract within 21 days from first furnishing labor or materials to the public improvement.

Send Your Notice

Ohio

Bond Claim Deadlines
90 Days

Bond claims must be filed after the claimant’s last furnishing of labor or materials to the public improvement, but no later than 90 days after completion and acceptance of the public improvement. An enforcement lawsuit must be filed within 60 days after the service of the affidavit.

File A Bond Claim Fast

Ohio Bond Claim FAQs

Claim FAQs

What types of projects are covered under Ohio’s public bond claim laws?

There are two separate remedies to recover payment on public works projects in Ohio; a claim against the payment bond and a claim of lien on contract funds. These protections apply to any construction contracts awarded by a township, county, municipal corporation, school board, or any other governmental entity “empowered to award public works contracts.”

However, if the project is being delivered under a construction manager at risk method, they may not be required to post a payment bond.

Who is protected under Ohio’s public bond claim laws?

In Ohio, subcontractors, laborers, and material suppliers are all protected regardless of project tier. It is unclear if suppliers to suppliers are protected, but given the otherwise broad coverage, they may be. Proof of delivery of materials to the project creates a conclusive presumption that the materials were actually used in the project. It’s also unclear whether equipment lessors are covered under bond claims, but they are under claims of liens on funds.

Who should receive the Ohio Bond Claim?

Bond Claim

The only party required to receive the bond claim is the surety. However, it may be best practice to also provide a copy to the general contractor and the contracting public entity as well.

Lien on Contract Funds

An Ohio claim of lien contract funds must be delivered to a few different parties. It must be given to (1) the representative of the public authority named in the Notice of Commencement, (2) filed with the county recorder’s office in the county where the project is located, and (3) the hiring subcontractor (if hired by someone other than the prime contractor).

Lastly, although the public authority is required to provide a copy of the claim to the prime contractor, it’s considered best practice to serve them a copy as well.

When is the deadline to file an Ohio bond claim?

Bond Claim

An Ohio public payment bond claim must be received after the claimant’s last date of furnishing labor and/or materials to the project, but no later than 90 days after the project’s completion and acceptance by the public entity.

Lien on Contract Funds

These claims must first be delivered to the public entity within 120 day of the claimant’s last date of furnishing labor and/or materials to the project.

• Pro tip: the sooner the claim is given the better as it is only effective as to funds not yet already paid to the general contractor.

Next, the claim must be filed with the county recorder’s office in the county where the project is located within 30 days after the claim is given to the public entity.

• The public entity is required to serve a copy of the claim on the prime contractor within 5 days of receipt. Once served, the prime contractor has 20 days to send a notice of intent to dispute the claim.

Lastly, a copy of the claim must be served on the subcontractor (if applicable) within 20 days after serving the public entity.

What must the Ohio Bond Claim include?

Bond Claim

The only required information to be included on a bond claim in Ohio is a statement of the amount due to the claimant. It may be advisable to also include additional identifying information; such as the name of the claimant, general contractor, hiring party, and public entity, and a description of the project and the labor and/or material furnished.

Lien on Contract Funds

A claim of lien on contract funds must be a sworn statement and include the following information:

• Itemized account of amount claimed after deducting all credits and setoffs

• Last date of furnishing labor and/or materials

• Claimant’s name & address

How should a public bond claim be sent in Ohio?

Bond Claim

The statutes don’t require any specific method of delivery. However, registered mail or certified mail is considered best practice.

Lien on Contract Funds

Service on the public entity must be done by registered mail, and filed with county recorder office. Service on the prime contractor and the subcontractor can be accomplished by personal service, or by registered or certified mail, or overnight mails as long as it includes a written receipt. Actual receipt by subcontractor is necessary, if applicable, to retain the right to lien.

When is the deadline to initiate suit, or, how long is an Ohio bond claim effective?

Bond Claim

The deadline to initiate a lawsuit to enforce a claim against a payment bond is more like a window. The suit can’t be filed until at least 60 days after delivering the claim to the surety, but no later than 1 year from the completion and acceptance of the project.

Lien on Contract Funds

A lawsuit to enforce an Ohio claim of lien on contract funds must be initiated within 60 days of receiving a notice to commence suit from the public authority, prime contractor, or subcontractor.

As noted above, the prime contractor must provide a notice of intent to dispute the claim within 20 days of service. If not, then the claim is deemed correct and the amount will be paid.

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Ohio Bond Claim Free Forms

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Notice of Intent to Make Bond Claim Form

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Ohio Bond Claim Statutes

When you perform work on a public construction project in Ohio, and are not paid, you can file a “lien” against the project pursuant to Ohio’s Little Miller Act. Since the claim is not against the state or county’s actual property, but instead against a posted bond, the claim is not really called a “lien” but is more frequently referred to as a “bond claim” or “little miller act claim.”However, you can also file a lien on contract funds that attaches to the unpaid construction funds on the project. Ohio’s Little Miller Act is found in Ohio Revised Code §§153.54 – 153.581, and the statutes regarding liens on public contract funds can be found under O.R.C. §1311.25 – 1311.32; and are reproduced below. Updated as of 2020.

Ohio Little Miller Act

§ 153.54 Bid guaranty to be filed with bid

(A) Except with respect to a contract described in section 9.334 or 153.693 of the Revised Code, each person bidding for a contract with the state or any political subdivision, district, institution, or other agency thereof, excluding therefrom the department of transportation, for any public improvement shall file with the bid, a bid guaranty in the form of either:

(1) A bond in accordance with division (B) of this section for the full amount of the bid;

(2) A certified check, cashier’s check, or letter of credit pursuant to Chapter 1305. of the Revised Code, in accordance with division (C) of this section. Any such letter of credit is revocable only at the option of the beneficiary state, political subdivision, district, institution, or agency. The amount of the certified check, cashier’s check, or letter of credit shall be equal to ten per cent of the bid.

(B) A bid guaranty filed pursuant to division (A)(1) of this section shall be conditioned to:

(1) Provide that, if the bid is accepted, the bidder, after the awarding or the recommendation for the award of the contract, whichever the contracting authority designates, will enter into a proper contract in accordance with the bid, plans, details, and specifications . If for any reason, other than as authorized by section 9.31 of the Revised Code or division (G) of this section, the bidder fails to enter into the contract, and the contracting authority awards the contract to the next lowest bidder, the bidder and the surety on the bidder’s bond are liable to the state, political subdivision, district, institution, or agency for the difference between the bid and that of the next lowest bidder, or for a penal sum not to exceed ten per cent of the amount of the bond, whichever is less. If the state, political subdivision, district, institution, or agency does not award the contract to the next lowest bidder but resubmits the project for bidding, the bidder failing to enter into the contract and the surety on the bidder’s bond, except as provided in division (G) of this section, are liable to the state, political subdivision, district, institution, or agency for a penal sum not to exceed ten per cent of the amount of the bid or the costs in connection with the resubmission of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, whichever is less.

(2) Indemnify the state, political subdivision, district, institution, or agency against all damage suffered by failure to perform the contract according to its provisions and in accordance with the plans, details, and specifications therefor and to pay all lawful claims of subcontractors, material suppliers, and laborers for labor performed or material furnished in carrying forward, performing, or completing the contract; and agree and assent that this undertaking is for the benefit of any subcontractor, material supplier, or laborer having a just claim, as well as for the state, political subdivision, district, institution, or agency.

(C)

(1) A bid guaranty filed pursuant to division (A)(2) of this section shall be conditioned to provide that if the bid is accepted, the bidder, after the awarding or the recommendation for the award of the contract, whichever the contracting authority designates, will enter into a proper contract in accordance with the bid, plans, details, specifications, and bills of material. If for any reason, other than as authorized by section 9.31 of the Revised Code or division (G) of this section, the bidder fails to enter into the contract, and the contracting authority awards the contract to the next lowest bidder, the bidder is liable to the state, political subdivision, district, institution, or agency for the difference between the bidder’s bid and that of the next lowest bidder, or for a penal sum not to exceed ten per cent of the amount of the bid, whichever is less. If the state, political subdivision, district, institution, or agency does not award the contract to the next lowest bidder but resubmits the project for bidding, the bidder failing to enter into the contract, except as provided in division (G) of this section, is liable to the state, political subdivision, district, institution, or agency for a penal sum not to exceed ten per cent of the amount of the bid or the costs in connection with the resubmission, of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, whichever is less.

If the bidder enters into the contract, the bidder, at the time the contract is entered to, shall file a bond for the amount of the contract to indemnify the state, political subdivision, district, institution, or agency against all damage suffered by failure to perform the contract according to its provisions and in accordance with the plans, details, and specifications and to pay all lawful claims of subcontractors, material suppliers, and laborers for labor performed or material furnished in carrying forward, performing, or completing the contract; and agree and assent that this undertaking is for the benefit of any subcontractor, material supplier, or laborer having a just claim, as well as for the state, political subdivision, district, institution, or agency.

(2) A construction manager who enters into a contract pursuant to sections 9.33 to 9.333 of the Revised Code, if required by the public authority at the time the construction manager enters into the contract, shall file a letter of credit pursuant to Chapter 1305. of the Revised Code, bond, certified check, or cashier’s check, for the value of the construction management contract to indemnify the state, political subdivision, district, institution, or agency against all damage suffered by the construction manager’s failure to perform the contract according to its provisions, and shall agree and assent that this undertaking is for the benefit of the state, political subdivision, district, institution, or agency. A letter of credit provided by the construction manager is revocable only at the option of the beneficiary state, political subdivision, district, institution, or agency.

(D) Where the state, political subdivision, district, institution, or agency accepts a bid but the bidder fails or refuses to enter into a proper contract in accordance with the bid, plans, details, and specifications within ten days after the awarding of the contract, the bidder and the surety on any bond, except as provided in division (G) of this section, are liable for the amount of the difference between the bidder’s bid and that of the next lowest bidder, but not in excess of the liability specified in division (B)(1) or (C) of this section. Where the state, political subdivision, district, institution, or agency then awards the bid to such next lowest bidder and such next lowest bidder also fails or refuses to enter into a proper contract in accordance with the bid, plans, details, and specifications within ten days after the awarding of the contract, the liability of such next lowest bidder, except as provided in division (G) of this section, is the amount of the difference between the bids of such next lowest bidder and the third lowest bidder, but not in excess of the liability specified in division (B)(1) or (C) of this section. Liability on account of an award to any lowest bidder beyond the third lowest bidder shall be determined in like manner.

(E) Notwithstanding division (C) of this section, where the state, political subdivision, district, institution, or agency resubmits the project for bidding, each bidder whose bid was accepted but who failed or refused to enter into a proper contract, except as provided in division (G) of this section, is liable for an equal share of a penal sum in connection with the resubmission, of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, but no bidder’s liability shall exceed the amount of the bidder’s bid guaranty.

(F) All bid guaranties filed pursuant to this section shall be payable to the state, political subdivision, district, institution, or agency, be for the benefit of the state, political subdivision, district, institution, or agency or any person having a right of action thereon, and be deposited with, and held by, the board, officer, or agent contracting on behalf of the state, political subdivision, district, institution, or agency. All bonds filed pursuant to this section shall be issued by a surety company authorized to do business in this state as surety approved by the board, officer, or agent awarding the contract on behalf of the state, political subdivision, district, institution, or agency.

(G) A bidder for a contract with the state or any political subdivision, district, institution, or other agency thereof, excluding therefrom the Ohio department of transportation, for a public improvement costing less than one-half million dollars may withdraw the bid from consideration if the bidder’s bid for some other contract with the state or any political subdivision, district, institution, or other agency thereof, excluding therefrom the department of transportation, for the public improvement costing less than one-half million dollars has already been accepted, if the bidder certifies in good faith that the total amount of all the bidder’s current contracts is less than one-half million dollars, and if the surety certifies in good faith that the bidder is unable to perform the subsequent contract because to do so would exceed the bidder’s bonding capacity. If a bid is withdrawn under authority of this division, the contracting authority may award the contract to the next lowest bidder or reject all bids and resubmit the project for bidding, and neither the bidder nor the surety on the bidder’s bond are liable for the difference between the bidder’s bid and that of the next lowest bidder, for a penal sum, or for the costs of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders.

(H) Bid guaranties filed pursuant to division (A) of this section shall be returned to all unsuccessful bidders immediately after the contract is executed. The bid guaranty filed pursuant to division (A)(2) of this section shall be returned to the successful bidder upon filing of the bond required in division (C) of this section.

(I) For the purposes of this section, “next lowest bidder” means, in the case of a political subdivision that has adopted the model Ohio and United States preference requirements promulgated pursuant to division (E) of section 125.11 of the Revised Code, the next lowest bidder that qualifies under those preference requirements.

(J) For the purposes of this section and sections 153.56, 153.57, and 153.571 of the Revised Code, “public improvement,” “subcontractor,” “material supplier,” “laborer,” and “materials” have the same meanings as in section 1311.25 of the Revised Code.

§153.55. Dividing project into parts to avoid threshold prohibited; costs included in threshold amount

(A) For purposes of calculating the amount of a public improvement project to determine whether it is subject to section 153.01 of the Revised Code, no officer, board, or other authority of the state or any institution supported by the state shall subdivide a public improvement project into component parts or separate projects in order to avoid the threshold of that section, unless the component parts or separate projects thus created are conceptually separate and unrelated to each other, or encompass independent or unrelated needs.

(B) In calculating the project amount for purposes of the threshold in section 153.01 of the Revised Code, the following expenses shall be included as costs of the project:

(1) Professional fees and expenses for services associated with the preparation of plans;

(2) Permit costs, testing costs, and other fees associated with the work;

(3) Project construction costs;

(4) A contingency reserve fund.

§ 153.56. Creditor shall furnish statement of amount due - service of notice of furnishing

(A) Any person to whom any money is due for labor or work performed or materials furnished in a public improvement as provided in section 153.54 of the Revised Code, at any time after performing the labor or work or furnishing the materials, but not later than ninety days after the completion of the contract by the principal contractor or design-build firm and the acceptance of the public improvement for which the bond was provided by the duly authorized board or officer, shall furnish the sureties on the bond, a statement of the amount due to the person.

(B) A suit shall not be brought against sureties on the bond until after sixty days after the furnishing of the statement described in division (A) of this section. If the indebtedness is not paid in full at the expiration of that sixty days, and if the person complies with division (C) of this section, the person may bring an action in the person’s own name upon the bond, as provided in sections 2307.06 and 2307.07 of the Revised Code, that action to be commenced, notwithstanding section 2305.12 of the Revised Code, not later than one year from the date of acceptance of the public improvement for which the bond was provided.

(C) To exercise rights under this section, a subcontractor or materials supplier supplying labor or materials that cost more than thirty thousand dollars, who is not in direct privity of contract with the principal contractor or design-build firm for the public improvement, shall serve a notice of furnishing upon the principal contractor or design-build firm in the form provided in section 1311.261 of the Revised Code.

(D) A subcontractor or materials supplier who serves a notice of furnishing under division (C) of this section as required to exercise rights under this section has the right of recovery only as to amounts owed for labor and work performed and materials furnished during and after the twenty-one days immediately preceding service of the notice of furnishing.

(E) For purposes of this section:

(1) “Design-build firm” has the same meaning as in section 153.65 of the Revised Code.

(2) “Principal contractor” has the same meaning as in section 1311.25 of the Revised Code, and may include a “construction manager at risk” as defined in section 9.33 of the Revised Code.

§ 153.57. Form of bond

(A) The bond provided for in division (C)(1) of section 153.54 of the Revised Code shall be in substantially the following form, and recovery of any claimant thereunder shall be subject to sections 153.01 to 153.60 of the Revised Code, to the same extent as if the provisions of those sections were fully incorporated in the bond form:

“KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned ………………………. as principal and ………………. as sureties, are hereby held and firmly bound unto ………………. in the penal sum of …………. dollars, for the payment of which well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors, and assigns.

Signed this …………. day of ……………., ….

THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above named principal did on the ……………. day of …………………, …., enter into a contract with …………….., which said contract is made a part of this bond the same as though set forth herein;

Now, if the said ………………….. shall well and faithfully do and perform the things agreed by ……………… to be done and performed according to the terms of said contract; and shall pay all lawful claims of subcontractors, material suppliers, and laborers, for labor performed and materials furnished in the carrying forward, performing, or completing of said contract; we agreeing and assenting that this undertaking shall be for the benefit of any material supplier or laborer having a just claim, as well as for the obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated.

The said surety hereby stipulates and agrees that no modifications, omissions, or additions, in or to the terms of the said contract or in or to the plans or specifications therefor shall in any wise affect the obligations of said surety on its bond.”

(B) The bond provided for in division (C)(2) of section 153.54 of the Revised Code shall be in substantially the following form:

“KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned ……… as principal and …………. as sureties, are hereby held and firmly bound unto …………. in the penal sum of ………….. dollars, for the payment of which well and truly be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors, and assigns.

Signed this ……… day of ………, …….

THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above named principal did on the …….. day of …….., ……, entered into a contract with …………… which said contract is made a part of this bond the same as though set forth herein;

Now, if the said ……………. shall well and faithfully do and perform the things agreed by …………. to be done and performed according to the terms of the said contract; we agreeing and assenting that this undertaking shall be for the benefit of the obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of the obligation as herein stated.

The surety hereby stipulates and agrees that no modifications, omissions, or additions, in or to the terms of the contract shall in any way affect the obligation of the surety on its bond.”

§ 153.571. Form of bond

The bond provided for in division (B) of section 153.54 of the Revised Code shall be in substantially the following form, and recovery of any claimant thereunder shall be subject to sections 153.01 to 153.60 of the Revised Code, to the same extent as if the provisions of such sections were fully incorporated in the bond form:

“KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned . . . . . . . . . . as principal and . . . . . . . . . . as sureties, are hereby held and firmly bound unto . . . . . . . . . . as obligee in the penal sum of the dollar amount of the bid submitted by the principal to the obligee on . . . . . . . . . . to undertake the project known as . . . . . . . . . .. The penal sum referred to herein shall be the dollar amount of the principal’s bid to the obligee, incorporating any additive or deductive alternate bids made by the principal on the date referred to above to the obligee, which are accepted by the obligee. In no case shall the penal sum exceed the amount of . . . . . dollars. (If the foregoing blank is not filled in, the penal sum will be the full amount of the principal’s bid, including alternates. Alternatively, if the blank is filled in, the amount stated must not be less than the full amount of the bid including alternates, in dollars and cents. A percentage is not acceptable.) For the payment of the penal sum well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors, and assigns.

Signed this . . . . . day of . . . . . . . ., . . .. THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above named principal has submitted a bid for . . . . . . . . . ..

Now, therefore, if the obligee accepts the bid of the principal and the principal fails to enter into a proper contract in accordance with the bid, plans, details, specifications, and bills of material; and in the event the principal pays to the obligee the difference not to exceed ten per cent of the penalty hereof between the amount specified in the bid and such larger amount for which the obligee may in good faith contract with the next lowest bidder to perform the work covered by the bid; or in the event the obligee does not award the contract to the next lowest bidder and resubmits the project for bidding, the principal pays to the obligee the difference not to exceed ten per cent of the penalty hereof between the amount specified in the bid, or the costs, in connection with the resubmission, of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, whichever is less, then this obligation shall be null and void, otherwise to remain in full force and effect; if the obligee accepts the bid of the principal and the principal within ten days after the awarding of the contract enters into a proper contract in accordance with the bid, plans, details, specifications, and bills of material, which said contract is made a part of this bond the same as though set forth herein;

Now also, if the said . . . . . . . . . . shall well and faithfully do and perform the things agreed by . . . . . . . . . . to be done and performed according to the terms of said contract; and shall pay all lawful claims of subcontractors, materials suppliers, and laborers, for labor performed and materials furnished in the carrying forward, performing, or completing of said contract; we agreeing and assenting that this undertaking shall be for the benefit of any materials suppliers or laborer having a just claim, as well as for the obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated.

The said surety hereby stipulates and agrees that no modifications, omissions, or additions, in or to the terms of the said contract or in or to the plans or specifications therefor shall in any wise affect the obligations of said surety on its bond.”

§ 153.58. Prohibition

No officers shall violate sections 153.01 to 153.57, inclusive, of the Revised Code.

§ 153.581. Contracts for construction definitions

As used in sections 153.581 and 153.591 of the Revised Code:

(A) “Public works contract” means any contract awarded by a contracting authority for the construction, engineering, alteration, or repair of any public building, public highway, or other public work.

(B) “Contracting authority” means the state, any township, county, municipal corporation, school board, or other governmental entity empowered to award a public works contract, and any construction manager at risk as defined in section 9.33 of the Revised Code or design-build firm as defined in section 153.65 of the Revised Code awarding a subcontract.

(C) “Contractor” means any person, partnership, corporation, or association that has been awarded a public works contract.

Liens on Contract Funds

§ 1311.25. Public improvement definitions

As used in sections 1311.25 to 1311.32 of the Revised Code:

(A) “Public improvement” means any construction, reconstruction, improvement, enlargement, alteration, demolition, or repair of a building, highway, drainage system, water system, road, street, alley, sewer, ditch, sewage disposal plant, water works, and any other structure or work of any nature by a public authority.

(B) “Public authority” includes the state, and a county, township, municipal corporation, school district, or other political subdivision of the state, and any public agency, authority, board, commission, instrumentality, or special district of or in the state or a county, township, municipal corporation, school district, or other political subdivision of the state, and any officer or agent thereof.

(C) ” Material supplier” includes any person by whom any materials are furnished in furtherance of a public improvement.

(D) “Laborer” includes any mechanic, worker, artisan, or other individual who performs labor or work in furtherance of any public improvement.

(E) “Subcontractor” includes any person who undertakes to construct, alter, erect, improve, repair, demolish, remove, dig, or drill any part of any public improvement under a contract with any person other than the public authority.

(F) “Principal contractor” includes any person who undertakes to construct, alter, erect, improve, repair, demolish, remove, dig, or drill any part of any public improvement under a contract with a public authority.

(G) “Materials” means all products and substances including, without limitation, any gasoline, lubricating oil, petroleum products, powder, dynamite, blasting supplies and other explosives, tools, equipment, or machinery furnished in furtherance of a public improvement.

(H) “Wages” has the same meaning as “prevailing wage” in division (E) of section 4115.03 of the Revised Code.

(I) “Notice of commencement” means the notice specified in section 1311.252 of the Revised Code.

(J) “Notice of furnishing” means the notice specified in section 1311.261 of the Revised Code.

§ 1311.251. Claim for furnishing materials

(A) A claim for furnishing materials arises under sections 1311.25 to 1311.32 of the Revised Code only if the materials are:

(1) Furnished with the intent, as evidenced by the contract of sale, the delivery order, delivery to the site by the claimant or at the claimant’s direction, or by other evidence, that the materials be used in the course of the public improvement with which the claim arises;

(2) Incorporated in the public improvement or consumed as normal wastage in the public improvement operations;

(3) Specifically fabricated for incorporation in the public improvement and not readily resalable in the ordinary course of the fabricator’s business even if not actually incorporated in the public improvement;

(4) Used for the public improvement or for the operation of machinery or equipment used in the course of the public improvement and not remaining in the public improvement, subject to diminution by the salvage of those materials; or

(5) Tools or machinery used on the particular public improvement, subject to division (C) of this section.

(B) The delivery of materials to the site of the public improvement, whether or not by the claimant, creates a conclusive presumption that the materials were used in the course of the public improvement or were incorporated into the public improvement.

(C) A claim for furnishing tools or machinery which arises under division (A)(5) of this section is limited to either of the following:

(1) If the tools or machinery are rented, the claim is for the reasonable rental value for the period of actual use and any reasonable period of nonuse taken into account in the rental contract.

(2) If the tools or machinery are purchased, the claim is for the price, but the claim only arises if the tools or machinery were purchased for use in the course of the particular public improvement and have no substantial value to the purchaser after the completion of the public improvement on which they were used.

(D) All of the deliveries or the sales, or both, by a claimant of materials, including tools and machinery to or for an improvement, give rise to one claim for the unpaid portion of the sales.

§ 1311.252. Notice of commencement - affidavit

(A) Prior to the performance of any labor or work or the furnishing of any materials in furtherance of a public improvement, the public authority shall prepare a notice of commencement in substantially the form specified in division (B) of this section which shall be made readily available to the public upon request.

(B) The notice of commencement required under division (A) of this section shall contain in affidavit form all of the following information:

(1) The name, location, and a number, if any, used by the public authority to identify the public improvement sufficient to permit the public improvement to be identified;

(2) The name and address of the public authority;

(3) The name, address, and trade of all principal contractors;

(4) The date the public authority first executed a contract with a principal contractor for the public improvement;

(5) The name and address of the sureties for all principal contractors;

(6) The name and address of the representative of the public authority upon whom service shall be made for the purposes of serving an affidavit pursuant to section 1311.26 of the Revised Code.

(C) If the notice of commencement is not made available to the public prior to the commencement of work on the public improvement or if the notice of commencement furnished by the public authority contains incorrect information which the claimant relies upon to his detriment, the unavailability of the notice or the incorrect notice shall not adversely affect the rights of any claimant under sections 1311.25 to 1311.32 of the Revised Code.

§ 1311.26. Subcontractor, materialman or laborer may serve affidavit on public authority

Any subcontractor, material supplier, or laborer who is performing or has performed labor or work or is furnishing or has furnished material for any public improvement provided for in a contract between the public authority and a principal contractor, and under a contract between the subcontractor, material supplier, or laborer and a principal contractor or subcontractor, at any time, not to exceed one hundred twenty days from the performance of the last labor or work or furnishing of the last material, may serve the public authority an affidavit stating the amount due and unpaid for the labor and work performed and material furnished, when the last of the labor or work was performed and when the last of the material was furnished with all credits and setoffs thereon, and the post-office address of the claimant. If a claimant serves an affidavit under this section, the claimant shall serve the affidavit to the representative of the public authority named in the notice of commencement.

One or more laborers may authorize an agent to prepare, execute, file, and serve the affidavit required by this section. The affidavit may set forth the claims of one or more laborers, provided that the affidavit separately itemizes the claim of each laborer and may set forth claims for wages that are contractually due but are unpaid.

§ 1311.261. Notice of furnishing

(A)

(1) Every subcontractor and material supplier who wishes to exercise the subcontractor’s or material supplier’s rights under sections 1311.25 to 1311.32 of the Revised Code regarding claims for labor or work performed or materials furnished in furtherance of a public improvement shall serve a notice of furnishing, in accordance with division (B) of this section, on the principal contractor whose contract with the public authority is the contract under which the subcontractor or material supplier is performing labor or work or furnishing materials within twenty-one days after the date that the subcontractor or material supplier first performed labor or work or furnished materials on the site of the public improvement, except that no subcontractor or material supplier who is in direct privity of contract with the principal contractor need provide the notice.

(2) A subcontractor or material supplier may serve the principal contractor with a notice of furnishing pursuant to this section more than twenty-one days after the subcontractor or material supplier first performed labor or work or furnished materials on the site of the public improvement. If a subcontractor or material supplier serves the notice, the subcontractor or material supplier shall have the rights of sections 1311.25 to 1311.32 of the Revised Code with regard to only amounts owed for labor and work performed and materials furnished during and after the twenty-one days immediately preceding service of the notice of furnishing.

(B) The notice of furnishing shall be in substantially the following form:

“Notice of Furnishing

(For use in connection with public improvements)

To: ……………………………………..

(Name of principal contractor)

…………………………………………

Address of principal contractor)

The undersigned notifies you that the undersigned has furnished or performed or will furnish or perform (describe labor, work, or materials) for the improvement of real property identified as (property description or address) under order given by (name of subcontractor or material supplier). The labor, work, or materials were first furnished or performed or will be furnished or performed on (date).

……………………………………………….

(Signature of subcontractor or material supplier)

……………………………………………….

(Address of subcontractor or material supplier)

……………………………………………….

(Date).”

(C) Each principal contractor and each subcontractor, on the date of entering into any agreement with a subcontractor or material supplier, shall provide, in writing, to the subcontractor or material supplier, the name and address of the public authority.

(D) Each principal contractor and each subcontractor, on the date of entering into any agreement with a subcontractor or material supplier, shall provide, in writing, to the subcontractor or material supplier, the name and address of the principal contractor.

(E) If the principal contractor or subcontractor fails to provide the name and address of the public authority or the principal contractor to those in direct privity of contract and that failure results in the loss of rights under this section, the affected person may bring an action in any court of common pleas which would otherwise have jurisdiction over the action against the person who failed to furnish the information for any damages resulting from the loss of rights under this section.

(F) No laborer must serve a notice in accordance with this section to preserve lien rights under sections 1311.25 to 1311.32 of the Revised Code.

§ 1311.27. [Repealed]

[Repealed]

§ 1311.28. Public authority to detain funds upon receipt of affidavit - escrow account

Upon receiving the affidavit required by section 1311.26 of the Revised Code, the public authority shall detain from the principal contractor or from the balance of the funds remaining in the contract with the principal contractor, an amount, up to the balance remaining in the contract, that does not in the aggregate exceed the claim or claims.

The public authority shall not detain any amount requested by a claimant who is required by section 1311.261 of the Revised Code to serve a notice of furnishing, unless the claimant has provided to the public authority a copy of the notice of furnishing and a sworn statement as to the date the notice of furnishing was served to the principal contractor, or by a claimant who is a laborer, unless the laborer serves an affidavit upon the public authority pursuant to section 1311.26 of the Revised Code.

The public authority shall place any detained funds in an escrow account as provided for under section 153.63 of the Revised Code, to be released at the times, in the amounts, and to the persons ordered by a court of competent jurisdiction or by agreement of the principal contractor and the subcontractor, material supplier, or laborer who filed the affidavit provided for in section 1311.26 of the Revised Code or upon a failure to commence suit as provided in section 1311.311 of the Revised Code.

§ 1311.29. Copy of affidavit to be filed with county recorder to notify other subcontractors, materialmen, and laborers - priority of claims

A subcontractor, material supplier, laborer, or person who serves the affidavit pursuant to section 1311.26 of the Revised Code, in order to notify other subcontractors, material suppliers, and laborers, within thirty days thereafter, shall file for record a copy of the affidavit with the county recorder of the county where the public improvement is situated or with the county recorder of each of the counties where the public improvement is situated if the public improvement is situated in more than one county. The filing for record of the affidavit with the county recorders gives such subcontractor, material supplier, laborer, or person filing the affidavit as provided in section 1311.26 of the Revised Code, a preference, as to payments subsequently due from the public authority, over such of the other subcontractors, material suppliers, and laborers who have failed, prior to the date any such payment is due, to file the affidavit provided for in section 1311.26 of the Revised Code, and to file for record the copy thereof with the county recorders as provided in this section. On detained funds, such claimants have no priority among themselves, but payment thereon shall be made to them in amounts prorated according to the amount of the then-existing valid claim of each. The failure of any claimant to file for record a copy of the affidavit with the county recorders does not affect the validity of the claimant’s amount claimed with respect to persons other than such of the claimant’s other subcontractors, material suppliers, and laborers who have filed for record copies of their affidavits with the county recorders, and, against detained funds, such claimants who have failed to make such filing for record with the county recorders have no priority among themselves, but, after all claims having preference over theirs have been paid, payment shall be made to them in amounts prorated according to the amount of the then-existing valid claim of each.

The recorder shall endorse upon every affidavit the date and hour of its filing, and record every affidavit filed for record. For recording or making a copy of the affidavit or certificate of the date of such filing for record, the recorder is entitled to the same fees as are provided for in section 317.32 of the Revised Code.

§ 1131.30. [Repealed]

[Repealed]

§ 1311.31. Action by claimant to enforce payment

The public authority, upon the receipt of the affidavit referred to in section 1311.26 of the Revised Code shall, or the claimant or his agent, in the name of the public authority, may serve the principal contractor with a copy thereof, within five days after the public authority receives it, together with a notice that the principal contractor must give notice of his intention to dispute the claim within twenty days. If the claimant is not in privity of contract with the principal contractor, the notice of intention to dispute may state that the claimant failed to serve a notice of furnishing as required by division (A)(1) of section 1311.261 of the Revised Code. If the claimant performed the labor or work or furnished the material to a subcontractor of the principal contractor, the claimant shall, within twenty days after serving the affidavit to the public authority, furnish a copy of it to the subcontractor. If the claimant fails to furnish the copy to the subcontractor, the claimant forfeits his rights to a claim under sections 1311.25 to 1311.32 of the Revised Code. If the principal contractor fails within twenty days after receipt of the affidavit to serve to the public authority written notice of his intention to dispute the claim, he has assented to its correctness, provided that within twenty days after receipt by any subcontractor of a copy of the affidavit, the subcontractor may serve the notice of intention to dispute on behalf of the principal contractor. Thereupon, provided all affidavits filed on the same public improvement have been assented to, the amount detained from the principal contractor shall be applied by and payment made by the public authority, in the order of preference provided in section 1311.29 of the Revised Code, pro rata, upon the claims on which affidavits have been filed. Where more than one affidavit has been filed with respect to the same public improvement, and one or more of the affidavits has not been assented to, then the amount detained shall be applied pro rata among all the claimants in the order of preference prescribed in section 1311.29 of the Revised Code, payment being made in the amount of their pro rata shares to all claimants whose affidavits have been assented to, and the pro rata shares of claimants whose affidavits have not been assented to shall be detained by the public authority until the dispute with respect to any affidavit has been resolved in any manner provided by law, whereupon payment in whole or in part shall be made to claimants in whose favor the dispute is resolved and any remaining part of the pro rata shares shall be applied pro rata among and payment made to all claimants as provided in this section. Each subsequent payment falling due shall be applied among and payment made to the claimants as provided in this section.

§ 1311.311. Notice to commence suit

Any public authority or any principal contractor or subcontractor who receives a copy of the affidavit required by section 1311.26 of the Revised Code, as provided in section 1311.31 of the Revised Code, may notify the claimant or his agent, to commence suit. Proof that this notice was served in accordance with section 1311.19 of the Revised Code, may be made by affidavit filed with the public authority or clerk or agent thereof. If the claimant fails to commence suit within sixty days after the date of the service of the notice, the affidavit filed pursuant to section 1311.26 of the Revised Code is void and the funds are to be released to the principal contractor. This section does not preclude the collection of the claim in any manner in which any claim may otherwise be collected.

An affidavit filed pursuant to section 1311.26 of the Revised Code is void and the funds upon which it is sought to be imposed wholly discharged from the affidavit filed pursuant to section 1311.26 of the Revised Code if the principal contractor or any subcontractor or interested party acting in his name gives the notice to commence suit and files with the public authority, a bond in the amount equal to one and one-half of the claim in favor of the claimant, executed by sufficient surety, approved in writing by the public authority, and conditioned upon the payment of any judgment upon the claim, plus costs.

If the public authority fails to discharge the affidavit filed pursuant to section 1311.26 of the Revised Code and make payment, the principal contractor or subcontractor may file an action in the court of common pleas of the county in which the property is located except that if the action is against a state officer, the principal contractor or subcontractor shall file the action in the court of common pleas of Franklin county. If the court determines in the action that the public authority improperly failed to discharge the affidavit and make payment, the court may award reasonable attorney fees.

The bond is void upon the failure of the claimant to commence suit within sixty days after the date of the service of the notice or, if the claimant commences suit within the required time period, upon the satisfaction of any judgment that is entered in favor of the claimant, upon final judgment against the claimant, or upon dismissal of the suit for any reason.

§ 1311.32. Enforcement by civil action

The duty to pay to claimants the amounts and in the order of preference, as provided in sections 1311.29 and 1311.31 of the Revised Code, may be enforced by an action in the court of common pleas or the subcontractor, material supplier, or laborer may, when the amounts are due, recover through the public authority in the court of common pleas the whole or a pro rata amount of the subcontractor’s, material supplier’s, or laborer’s claim or estimate, not exceeding in any case the balance due to the principal contractor. Either of these actions shall be brought in the county in which the public property involved is situated, except that actions against state officers shall be brought only in Franklin county. The court shall resolve all disputes concerning whether the affidavit filed pursuant to section 1311.26 of the Revised Code has been perfected and concerning priorities, that may arise from enforcement of the affidavit or the bond that secures the affidavit, pursuant to section 1311.311 of the Revised Code.

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