Miller Act Bond Claims for Federal Construction Projects

The Miller Act protects subcontractors, suppliers, and certain lower-tier claimants on federal construction projects where mechanic’s liens are not available. If labor or materials are furnished to a federal public work and payment is not made, the payment bond may be the primary source of recovery. That makes timing, notice, project identification, claimant tier, and documentation critical from the first sign of a payment problem.

For New York contractors and suppliers, Miller Act claims often arise on federal courthouses, military facilities, post office projects, federal transportation work, and other public buildings or works owned by the United States. These claims are different from New York payment bond claims, public improvement liens, and private mechanic’s lien remedies, even though the practical goal is the same: securing payment for construction labor and materials.

Kushnick Pallaci PLLC represents contractors, subcontractors, suppliers, owners, sureties, and public-project participants in Miller Act bond claims, New York public improvement bond claims, payment disputes, and surety litigation.

What the Miller Act does

The Miller Act requires payment and performance bonds on many federal construction contracts. The performance bond protects the United States if the prime contractor defaults. The payment bond protects qualifying persons who furnish labor or material for the federal project and are not paid.

Under 40 U.S.C. Section 3131, before a federal construction, alteration, or repair contract of more than $100,000 is awarded, the contractor generally must furnish both a performance bond and a payment bond. The payment bond requirement matters because federal property cannot be sold through a mechanic’s lien foreclosure.

Who may have a Miller Act payment bond claim?

40 U.S.C. Section 3133 gives payment bond rights to persons who furnished labor or material for the federal project and have not been paid in full. Claim rights are usually strongest for a subcontractor or supplier with a direct contract with the prime contractor. A claimant with a direct contract with a subcontractor may also have rights, but must satisfy the statute’s written notice requirement.

Important Miller Act deadlines

Federal payment bond claims have short and unforgiving deadlines. A claimant without a direct contract with the prime contractor generally must give written notice to the prime contractor within 90 days from the date it last performed labor or supplied material for the claim. The notice must state, with substantial accuracy, the amount claimed and identify the party for whom the labor was performed or material was supplied.

A civil action on the Miller Act payment bond generally may be brought after the claimant has not been paid in full for 90 days, but it must be filed no later than one year after the claimant last performed labor or supplied material for the claim. Waiting for negotiations, change order review, retainage release, surety investigation, or project closeout can be dangerous if the deadline is approaching.

Miller Act vs. New York Little Miller Act claims

New York contractors often use the phrase “Little Miller Act” to describe New York payment bond rights on state and local public improvements. The comparison is useful, but the rules are not identical. Federal Miller Act claims arise under federal law. New York public work claims may involve State Finance Law Section 137, public improvement lien rights, contract claims, and other state-law remedies.

Miller Act claim checklist

• Identify whether the project is federal, state, municipal, public authority, or private.
• Obtain the payment bond, performance bond, prime contract information, and surety contact information.
• Confirm the claimant’s place in the contract chain.
• Calculate the last labor or material date for the unpaid claim.
• Determine whether a 90-day notice is required and how it must be served.
• Separate bonded project work from unrelated projects or open account balances.
• Preserve invoices, delivery tickets, certified payroll records, change order documents, correspondence, and payment applications.
• Calculate the unpaid amount, credits, retainage, disputed extras, and backcharges.
• Evaluate whether state-law remedies, contract claims, or prompt payment rights may also apply.
• Calendar the one-year lawsuit deadline and do not assume negotiations will extend it.

What should a Miller Act notice include?

A lower-tier claimant’s Miller Act notice should be prepared with care. It should identify the federal project, the claimant, the party to whom labor or materials were furnished, the unpaid amount stated with substantial accuracy, and the labor or material supplied for the project. The notice should be sent in a way that creates reliable proof of delivery.

The notice is not the place for vague collection language. If the claim later reaches litigation, the notice may be scrutinized for timeliness, content, recipient, delivery, and whether it fairly identified the claim being asserted against the bond.

Common Miller Act disputes

Miller Act bond disputes often turn on whether the claimant is covered by the bond, whether notice was timely and sufficiently detailed, whether the claimed labor or materials were furnished for the bonded project, and when the claimant last performed work. Sureties may also dispute change order amounts, delay damages, closeout costs, retainage, defective work offsets, open account allocations, or whether the claimant is too remote from the prime contractor.

Federal courts have long recognized the remedial purpose of the Miller Act. At the same time, the statutory notice and filing requirements remain central to preserving the claim. In practical terms, a strong Miller Act claim usually begins with careful documentation before a lawsuit is filed: clean project records, a verified claim amount, and a clear explanation of how the claimant fits within the bonded federal project.

What to do when payment is delayed on a federal project

1. Confirm whether the project is federal and covered by a Miller Act payment bond.
2. Request the payment bond and identify the prime contractor and surety.
3. Map the contract chain to determine whether 90-day notice is required.
4. Assemble invoices, delivery records, time records, change orders, correspondence, and payment history.
5. Send any required notice with enough time to correct delivery problems.
6. Prepare a claim package for the surety.
7. Track the one-year filing deadline even if the surety is investigating.
8. Evaluate related contract, prompt payment, or state-law claims where applicable.

Related payment and surety resources

• Payment bond claims in New York construction
• State Finance Law Section 137 bond claim timing
• Types of bonds in New York construction
• Public improvement liens in New York
• Public construction contracts and procurement
• Surety litigation practice
• Interpreting surety bonds
• Construction litigation counsel

Frequently asked questions about Miller Act bond claims

Can a mechanic’s lien be filed on a federal construction project?

No. Federal property is not subject to mechanic’s lien foreclosure. On a bonded federal construction project, the Miller Act payment bond is often the primary payment security for unpaid subcontractors and suppliers.

What is the Miller Act 90-day notice rule?

A claimant that has a direct contract with a subcontractor, but not with the prime contractor, generally must give written notice to the prime contractor within 90 days from the last labor or material furnished for the claim.

What is the Miller Act filing deadline?

A Miller Act payment bond lawsuit generally must be filed no later than one year after the day on which the claimant last performed labor or supplied material for the claim.

Where is a Miller Act lawsuit filed?

The statute provides that the action is brought in the name of the United States for the use of the claimant and filed in the United States District Court for a district where the contract was to be performed and executed.

Does the Miller Act apply to New York State or municipal projects?

No. The Miller Act applies to federal construction projects. New York State, municipal, and public authority projects may involve public improvement lien rights, State Finance Law Section 137 payment bond claims, or other state-law remedies.

What documents are needed for a Miller Act claim?

Important documents include the payment bond, prime contract information, subcontract or purchase order, invoices, delivery tickets, time records, change orders, correspondence, proof of last work, payment history, and any 90-day notice.