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Can a General Contractor in the State of Vermont, hold retainage on a Mobilization Invoice-

New HampshireRetainage

We are working for a General Contractor as a Subcontractor in the State of Vermont. Upon signing the Contract, we were paid for mobilization without retainage being held, back in September of 2019. Now the General would like us to submit and Invoice for this Mobilization. Is he permitted to hold retainage on this amount, even though it is already paid?

1 reply

Nov 21, 2019

For one, if full payment has already been paid for mobilization and retainage wasn't withheld, then it doesn't make much sense to try and retroactively withhold payment. After all, retainage is a portion that's withheld from some payment - so once an invoice has been paid, unless some of that is paid back, then there isn't really anything to withhold. What's more, if the contract doesn't allow for withholding retainage, then instituting retainage holdback at a random point during the project doesn't make much sense, either. Retainage on private projects doesn't appear to be regulated by state law in New Hampshire - meaning it isn't statutorily required, controlled, or prohibited. So, if that's the case, retainage would have to be instituted and controlled by the contract. And, opting to change the terms of the contract after it's already been signed may well result in a breach of that contract. For more discussion on retainage: The Ultimate Guide to Retainage in the Construction Industry.

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