Q Does paying a contractor in full constitute a “final payment” within the meaning of state statutes, and if not, does the issuance of a check with “final payment” notated therein close out the contract?

A Pursuant to Section 31-5-25, final payment on a public construction contract is due and payable when any of the four events in Section 31-5-25(1)(b) take place along with obtaining written consent of the contractor’s surety. The events that trigger final payment, per Section 31-5-25(1)(b) are (i) at the completion of the project or after the work has been substantially completed in accordance with the terms and provisions contract; (ii) when the owner beneficially uses or occupies the project except in the case where the project involves renovation or alteration to an existing facility in which the owner maintains beneficial use or occupancy during the course of the project; (iii) when the project is certified as having been completed by the architect or engineer authorized to make such certification; or (iv) when the project is certified as having been completed by the contracting authority representing the State or any of its political subdivisions, whichever event shall occur first. Whether final payment is due under the provisions of Section 31-5-25(1) (b) is a factual determination to be made by the public entity. (Attorney General’s Opinion to Amos, May 13, 2016)