Miller Act and FAR Payment Protections: Tiers, Deadlines, and Notice

If you supplied labor or materials on a federal construction job and haven’t been paid, Miller Act payment bond claim deadlines run on two clocks: you cannot sue until 90 days after your last day of work, and you must file suit within one year of that same last day. Second-tier claimants have an added deadline of their own, a written notice to the prime contractor within 90 days of last furnishing labor or materials. Miss any of these and the bond stops being available to you.

The Miller Act, at 40 U.S.C. § 3131, requires a prime contractor on a federal construction contract to post a payment bond so that unpaid subcontractors and suppliers have something to collect against. You cannot lien federal property, so the bond is your substitute. The Federal Acquisition Regulation sets the operative threshold for a full payment bond at $150,000.¹²

First Figure Out Which Tier You Are

Standing to claim depends entirely on where you sit in the contract chain. The statute recognizes two tiers and no more.

A first-tier claimant has a direct contract with the prime contractor. That includes subcontractors hired by the prime and material suppliers who sold directly to the prime. First-tier claimants face the fewest procedural hurdles.³

A second-tier claimant contracts with a first-tier subcontractor rather than with the prime. You can still reach the bond, but only after satisfying an extra notice requirement described below.³

Anyone further down has no Miller Act rights at all. A supplier to a second-tier subcontractor cannot claim against the bond. Locate yourself in the chain before you do anything else, because every deadline that follows is measured from your last day of work and every procedural step depends on your tier.

The Three Deadlines That Decide the Claim

90-Day Waiting Period Before Suit

No claimant, first-tier or second-tier, may file suit on the bond until 90 days have passed since the last day they performed labor or supplied materials on the project.⁴ The window exists to give the prime contractor a chance to pay. A first-tier claimant does not have to send any written notice during those 90 days; you wait, and if you’re still unpaid, you sue.³

90-Day Written Notice for Second-Tier Claimants

If you are a second-tier subcontractor or supplier, the same 90-day clock does double duty. Within 90 days of the last day you furnished labor or materials, you must send written notice of the claim to the prime contractor.⁵ The notice must state, with substantial accuracy, the amount claimed and the party for whom the work was performed or materials supplied. It must be delivered by any method that produces written, third-party verification of delivery. Certified mail with return receipt is the standard choice, but not the only one. Late notice, or no notice, ends the claim.

One-Year Suit Deadline

The lawsuit itself must be filed no later than one year after your last day of labor or material on the project.⁶ Courts rarely relax this cutoff. Subtract the 90-day waiting period and you have roughly nine months of practical filing window. Do not treat it as generous.

Get the Bond and Contract in Your Hands Early

Prime contractors sometimes refuse to share the bond. Federal law works around that. Under 40 U.S.C. § 3133(a), any person who has supplied labor or materials and remains unpaid can request a certified copy of the payment bond and the underlying contract from the federal contracting officer.⁵ Submit a written affidavit stating that you provided labor or materials for the project and have not been paid, and the contracting officer must furnish the certified copy. The agency may charge a preparation fee. The certified copy is prima facie evidence of the bond’s contents and execution.

You need the bond to identify the surety, confirm the penal sum, and find the correct address for service. Do this as soon as a payment problem appears rather than when your one-year deadline is closing in.

Where and How to File

A Miller Act suit is filed in the United States District Court for any district in which the contract was to be performed and executed, regardless of the amount in dispute.⁵ The case is brought “in the name of the United States for the use of” the claimant. That caption is a formality. You bear all litigation costs and carry the burden of proof against the surety and, typically, the prime contractor.

What the Bond Actually Covers

The Miller Act protects those who supply “labor and material,” and courts read those words broadly. Equipment rentals count when the equipment is used to perform the contracted work, even if nothing physical from the rental ends up in the finished structure. Fuel, oil, and consumable supplies used on the job are covered. So are repair parts for equipment worn out during the project.

The line falls at capital expenditure. If a repair substantially increases the value of a piece of equipment and leaves it available for future unrelated jobs, that cost is outside the bond. Repairs performed after the project is finished and the equipment has gone back to its owner are generally not recoverable either.

Waivers Signed Before Work Begins Don’t Count

Boilerplate Miller Act waivers turn up in subcontracts. Under 40 U.S.C. § 3133(c), a waiver of the right to sue on a payment bond is void unless it is in writing, signed by the person whose rights are being waived, and executed after that person has already furnished labor or materials on the project.⁵

The timing requirement does most of the work. A waiver buried in a subcontract you signed before starting the job is unenforceable. Congress wrote the rule this way because a sub competing for the contract has little leverage to refuse the clause. Once you have performed, the calculus is different, and only then can you give up the right.

Attorney Fees and Interest

Winning a Miller Act suit does not automatically get you attorney fees. The statute has no fee-shifting provision, and the American Rule applies by default. Exceptions exist. If your subcontract has a prevailing-party fee clause, courts generally enforce it against both the prime contractor and the surety. Fees have also been awarded when the defense was conducted in bad faith. In some jurisdictions, adding a state-law claim (a prompt payment statute or breach of contract) can support a fee award, though state-law fees typically run only against the prime, not the surety.

Prejudgment interest works similarly. It is not built into the Miller Act, but supplemental state-law claims may support it where allowed. On smaller balances, the cost of litigation can eat much of the recovery. Do the math before you file.

A Note on Contracts Under $150,000

The Miller Act payment bond is only mandatory on federal construction contracts over $150,000. On contracts between $35,000 and $150,000, the contracting officer selects one or more alternative payment protections instead, such as an irrevocable letter of credit, a tripartite escrow agreement, or a certificate of deposit.⁷ These are not Miller Act bonds, and the notice-and-suit procedure described above does not apply to them; your remedy runs through the terms of the specific instrument the contracting officer chose. On contracts under $35,000, no payment protection is required at all, and unpaid subs and suppliers are left with their ordinary contract remedies against the prime.

1
Acquisition.GOV. FAR 28.102-1 General
2
Office of the Law Revision Counsel. 40 USC 3131 – Bonds of Contractors of Public Buildings or Works
3
U.S. General Services Administration. The Miller Act – How Payment Bonds Protect Subcontractors and Suppliers
4
Office of the Law Revision Counsel. 40 USC 3133 – Rights of Persons Furnishing Labor or Material
5
Office of the Law Revision Counsel. 40 USC 3133 – Rights of Persons Furnishing Labor or Material
6
Office of the Law Revision Counsel. 40 USC 3133 – Rights of Persons Furnishing Labor or Material – Section: Period in Which Action Must Be Brought
7
eCFR. 48 CFR 28.102-2 – Amount Required