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Contractual Retainage

I billed retainage on Feb 20th as we were officially completed with the project. The contractor asked if we could do additional work that was not included with our contract.I sent a notice of retainage out on March 27th as we were offsite on 3/17. The contractor said I have to re-invoice the retainage with the April 20th date. If I do that, will it mess up the Notice and lien rights?

1 reply

May 8, 2020

No, sending an updated invoice for retainage shouldn't negatively impact a previously sent Notice of Retainage or lien rights. Once the Notice of Retainage was properly sent, it will preserve your retainage for the contract and subsequent change orders - and that notice doesn't have to have a very specific statement on retainage. Rather, it must simply state that retainage is being withheld on the project and provide a general statement about what's retainage being withheld. If you've executed an entirely new and separate contract for the additional work, then it'd be smart to send another Notice of Retainage for the new contract, though. Even if that's not required - at worst, it's overly protective for the new work. Further, if you're working under separate contracts, it might be a good idea to calculate lien rights separately for each contract. Although, if the work wasn't done under a new contract but merely change orders to your initial contract - then there'd be little question, the last furnishing date would merely be pushed back. For further discussion on Texas retainage: Texas Retainage Guide and FAQs.

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