Miller Act payment bond claims: deadlines for unpaid subcontractors
If you are a subcontractor or supplier on a federal construction job and nobody has paid you, the Miller Act may let you claim against the prime contractor’s payment bond. Two clocks matter most: a 90-day wait before you can sue, and a one-year limit to file. Second-tier claimants also have a 90-day notice deadline. Miss one and the claim can be lost.
What is a Miller Act payment bond?
The Miller Act is the federal law on bonds for public construction. Under 40 U.S.C. 3131, a contractor must furnish a payment bond before a covered federal construction contract is awarded. The bond exists for “the protection of all persons supplying labor and material” on the work. The bond gives unpaid subcontractors and suppliers a source of payment on the job.
The statute sets the trigger at contracts of more than $100,000. The Federal Acquisition Regulation, section 28.102-1, currently states it as contracts exceeding $150,000. For contracts above $35,000 up to that amount, it tells the contracting officer to pick two or more other payment protections, such as an irrevocable letter of credit or an escrow agreement. Ask the prime or the contracting agency which protection your job has.
Who can make a claim?
The rule is in 40 U.S.C. 3133. It lets “every person that has furnished labor or material” on the bonded work bring a civil action on the bond if it has not been paid in full within 90 days after it last performed labor or supplied material.
The statute draws a line by contract:
- You contract directly with the prime. You can sue on the bond after the 90-day wait. The statute does not require a preliminary notice for you.
- You contract with a subcontractor, not the prime. You can also sue, but you must first give the prime written notice within 90 days of your last labor or material.
The ConsensusDocs summary of notice rules (2021) says a supplier to a supplier is not covered. Check where you sit in the chain before you count days.
What are the deadlines?
| Step | Deadline under 40 U.S.C. 3133 |
|---|---|
| Earliest you can sue | After 90 days from your last labor or material, if unpaid |
| Notice to the prime (if no contract with the prime) | Within 90 days of your last labor or material |
| Last day to file suit | One year after the last labor was performed or material supplied |
Both clocks count from your own last day of work or delivery. They are not the project’s completion date. The ConsensusDocs article adds that warranty or repair work generally does not extend the notice deadline, so do not treat a punch-list visit as a new last day without advice.
How is notice sent, and where do you sue?
The statute says the notice must be written and served in one of two ways. One is any means that gives “written, third-party verification of delivery” to the contractor at its office, place of business or residence. The other is any manner a US marshal could use to serve a summons in the district where the project sits.
Methods that leave a signed delivery record, such as certified mail with a return receipt, fit that wording. Ask an attorney before relying on anything else. The ConsensusDocs article notes that oral notice alone is generally not enough, and that the notice should name the party it concerns and state the claim amount with “substantial accuracy.” Keep the delivery record with your claim file.
Under the same section, the suit is brought in the name of the United States for your use. It goes in the federal district court for the district where the contract was to be performed and executed, whatever the amount in dispute. This is a job for a construction attorney, so talk to one well before the one-year deadline.
You can get the paperwork you need to plan the claim. Section 3133(a) says the agency head shall furnish a certified copy of the payment bond and the contract to a person who files an affidavit that they supplied labor or material and have not been paid, or are being sued on the bond. The agency may charge a fee for the copy.
Can a lien waiver kill the claim?
It can. Section 3133(c) says a waiver of the right to sue on a payment bond is void unless it is in writing, signed by the person whose right is waived, and signed after that person has furnished labor or material for the contract. A waiver signed before you did the work does not count under the federal statute. A properly signed one after the work can.
So read every waiver as if it were a release of the bond claim. Our guide on conditional vs unconditional lien waivers explains why an unconditional waiver signed before the check clears is risky. Pay attention to the retainage you are owed as well, which we cover in construction retainage rules.
What about state public jobs?
State and local public work usually has its own “little Miller Act,” and the deadlines differ. According to the same ConsensusDocs article, second-tier notice is due within 120 days after labor or materials in North Carolina, 65 days in Massachusetts, and within 20 days of first furnishing in California, with later fallback dates. Those figures are from 2021, so confirm the current statute for your state and the bond form on your job before relying on them.
Where Payrung fits
Payrung is being built to keep pay applications, retainage balances and lien waivers in one place, so the dates you would need for a claim, such as your last day on site and what you signed, are easier to find. Join the waitlist
This article is general information, not legal advice. Bond claim deadlines are strict and vary by project and state, so talk to a construction attorney about your situation.