Strathmore Subcontractor Sues

Guests arrive at the Music Center at Strathmore on opening day last month. Montgomery County oversaw construction of the $100 million venue. (Rich Lipski -- The Washington Post)

Shawn C. Whittaker, an attorney for Forms+Surfaces, said Montgomery County's pre-construction decisions are the reason the company requested a lien.

On private projects, Whittaker said, contractors can file suit requesting that the finished product be held as collateral should they win a judgment for nonpayment.

However, because Strathmore was built by a public entity, Whittaker said, the county should have purchased a performance bond, meant to ensure that contractors are paid for the work they perform. If a dispute arose, he said, the contractor could go to court and request a judgment against that bond.

"We don't have any rights under the bond because there isn't one," Whittaker said, adding that he is doubtful a judge would grant the lien.

State and federal laws established performance bonds to ensure contractors working on public projects can collect payment because it is not feasible for them to request liens on government property.

Darling said Montgomery County, after consulting with state officials, decided to waive purchase of the bond to save money.

The bonds, according to Whittaker, can cost several hundred thousand dollars.

Fisher said Montgomery believes it had to secure only 50 percent of the project with performance bonds.

Although it took out those bonds to cover subcontractors performing a majority of the work, the county did not purchase bonds for work by such companies as Forms+Surfaces that were doing "less than 50 percent" of the job, Fisher said.

"It only becomes an issue if Clark doesn't pay, but we fully expect them to pay," Fisher said.