You supplied the labor. You delivered the materials. You submitted your invoices. Now the contractor says payment is coming, the government has not released the funds, or your balance will be addressed at project closeout. Meanwhile, payroll, suppliers, and overhead cannot wait.
If you are owed money on a federal construction project, a Miller Act payment bond claim may provide a way to pursue payment from the prime contractor’s surety. But a valid unpaid invoice is only part of the equation. Your place in the contracting chain, the notice you give, and the dates you act can determine whether that remedy remains available.
Kushnick Pallaci PLLC helps construction businesses pursue unpaid contract balances and payment bond claims. If payment has stalled on a federal project, contact our construction attorneys or call (631) 752-7100 to discuss the amount owed, your project, and any approaching deadlines.
What Is the Miller Act, and Why Does It Matter When You Have Not Been Paid?
On a federal construction project, you generally cannot place a mechanic’s lien on property owned by the United States. The Miller Act addresses that problem by requiring payment bonds on covered federal construction contracts. The payment bond protects qualifying businesses that furnish labor or materials; the separate performance bond protects the government’s interest in completion. 40 U.S.C. § 3131; F.D. Rich Co. v. United States ex rel. Industrial Lumber Co.
That distinction matters when the company that hired you cannot or will not pay. A properly preserved bond claim can provide another party from which to seek recovery: the surety that issued the payment bond.
First, confirm that the project falls under the federal bond framework. Federal funding alone does not automatically make a state, municipal, or private project a Miller Act project. The contracting agency, prime contract, and bond must be examined. For the distinction, see our discussion of the Miller Act and New York’s Little Miller Act.
Who Can Bring a Miller Act Payment Bond Claim?
For subcontractors and suppliers, eligibility generally depends on who hired you:
- You contracted directly with the federal prime contractor. Subcontractors and material suppliers at this level generally fall within the Act’s protection.
- You contracted directly with a first-tier subcontractor. Qualifying sub-subcontractors and suppliers may be protected, subject to the additional notice requirement discussed below.
- You are farther down the contracting chain, or supplied an ordinary material supplier. Miller Act protection generally does not extend to these relationships.
The labels on a purchase order do not always resolve the issue. Whether a business qualifies as a subcontractor or merely a material supplier can require a closer examination of its role. Clifford F. MacEvoy Co. v. United States.
For example, an electrical sub-subcontractor hired by the prime contractor’s electrical subcontractor may have bond rights even without a direct contract with the prime. Identifying that relationship early tells your attorney which notice requirements to address.
Miller Act Deadlines: Two Different 90-Day Rules and a One-Year Filing Limit
The Miller Act’s time requirements serve different purposes. Confusing them can put an otherwise valuable claim at risk.
| Requirement | General rule |
|---|---|
| 90-day notice | A claimant contracting with a first-tier subcontractor, but not the prime, must notify the prime within 90 days after its last labor or materials for the claim. Direct-prime claimants generally do not need this statutory notice. |
| 90-day waiting period | A bond action becomes available when the claimant remains unpaid 90 days after its last labor or materials for the claim. |
| One-year lawsuit deadline | File suit no later than one year after the claimant’s last qualifying labor or materials. |
These requirements appear in 40 U.S.C. § 3133.
Submitting a claim to the surety is not the same as filing a lawsuit. A claim number, ongoing investigation, or exchange of settlement proposals does not automatically extend the filing period. Counsel should preserve the deadline while pursuing payment. United States ex rel. Contracting King, Inc. v. Creek Services, LLC.
The Notice Must Reach the Right Contractor
When statutory notice is required, it must go to the bonded prime contractor. Notice should identify the amount claimed with substantial accuracy and the party for whom you furnished labor or materials, using a statutorily permitted delivery method. Do not rely solely on notice to your customer or the surety. 40 U.S.C. § 3133(b)(2).
Have counsel confirm the correct legal entity, notice language, and delivery evidence. Sending paperwork at the last minute creates avoidable disputes about timely receipt. An ordinary invoice or a request to a project manager to “look into payment” should not be assumed sufficient.
Your Last Invoice Date Is Not Necessarily Your Last Work Date
Do not build your deadline calculation around a later billing date, payment rejection, or the government’s final acceptance. Review daily reports, delivery tickets, payroll records, and the actual work performed.
Returning for warranty repairs or corrective work generally does not restart the Miller Act clock. Whether a particular punch-list item completes original contract work or merely corrects earlier work can matter. A documented review of your last qualifying work is more reliable than assuming that any return to the site buys another year. Relyant Global, LLC, District of Guam decision dated June 16, 2026.
“We Have Not Been Paid by the Government.” Does That Defeat Your Claim?
That explanation should prompt a legal review, not an indefinite wait.
A contractor’s dispute with the government does not automatically defeat an otherwise valid Miller Act bond claim. Federal courts have rejected attempts to use contingent-payment language to postpone or eliminate statutory bond rights where the required waiver was absent. The contract language, any later releases, and applicable law still matter. United States ex rel. Walton Technology, Inc. v. Weststar Engineering, Inc.
We examine what the contractor is withholding, why it says payment is not due, and whether the asserted defense applies to the bond claim. A disputed backcharge, an unapproved change order, and a government funding delay present different issues and need different responses.
What Amounts Should Be Included in Your Claim?
Start with a clear accounting of the work and materials for which you remain unpaid. Depending on the contract, proof, and bond coverage, the review may include unpaid progress payments, retainage, and extra work actually furnished to the project.
The objective is a defensible claim. Reconcile the original contract amount, changes, payments received, credits, and disputed deductions. For extra work, gather the direction to proceed, labor and material records, pricing, and communications showing why the work fell outside your original scope.
Our review also addresses whether interest, attorneys’ fees, or other claimed amounts have a recoverable legal basis. Those items should not be treated as automatic additions to every Miller Act claim. See F.D. Rich Co. v. United States ex rel. Industrial Lumber Co.
You Do Not Need to Have the Bond in Hand Before Calling an Attorney
Many unpaid subcontractors have a contract and invoices but no copy of the prime contractor’s payment bond. That is a problem to address promptly, not a reason to keep waiting.
Federal procurement rules provide a route to request the surety’s name and address from the contracting officer. A qualifying request supported by an affidavit can also obtain a certified copy of the bond and prime contract. FAR 28.106-6.
Give us the project name, location, federal agency, prime contractor, and contract number if available. Those details provide a starting point for investigating the bond and identifying the parties involved.
What to Gather When Payment Stops
You do not need a perfectly assembled claim package to seek help. Start with what you have:
- Your agreement: subcontract, purchase orders, amendments, and incorporated terms.
- Your payment records: applications, invoices, retainage calculations, and payments received.
- Your work records: daily reports, delivery tickets, time sheets, and evidence of your last work or delivery.
- Your disputed items: change orders, field directives, backcharges, and responses.
- Your communications: payment promises, notices, delivery confirmations, and surety correspondence.
- Your releases: progress-payment waivers, final releases, and proposed settlement documents.
Tell us immediately if a notice or filing deadline may be close. We can identify which missing records are most urgent while evaluating how to protect your position.
How Kushnick Pallaci Helps Unpaid Federal Construction Businesses
An unpaid construction balance affects more than one project. It can restrict your ability to fund payroll, pay vendors, and mobilize for the next job. Your legal strategy should account for those business pressures as well as the amount in dispute.
Kushnick Pallaci’s surety litigation and payment bond practice addresses construction payment disputes alongside the contracts and project records that drive them. For a potential Miller Act matter, our work can include:
- Evaluating eligibility, identifying the bonded prime contractor and surety, and calculating deadlines.
- Preparing required notices and a documented demand for payment.
- Analyzing backcharges, disputed extra work, releases, and contractual defenses.
- Negotiating with the contractor and surety and pursuing litigation when appropriate.
We assess both the strength of the claim and the obstacles to recovery so you can make an informed business decision. With offices on Long Island and in Manhattan, our firm serves New York construction businesses facing payment and bond disputes.
Frequently Asked Questions About Miller Act Claims
Can I Pursue the Bond Without First Winning a Lawsuit Against My Customer?
Generally, you do not need a prior judgment against the company that hired you to bring an otherwise valid Miller Act bond action. Eligibility, notice, and timing requirements still apply. 40 U.S.C. § 3133.
What if the Surety Says My Claim Is Still Under Review?
Provide appropriate supporting records, but have counsel address the filing deadline independently. The surety’s investigation is not a substitute for preserving your right to sue.
What if I Signed a Release to Receive a Partial Payment?
Have the actual document reviewed. Its wording, timing, payment conditions, and any reservation of disputed claims matter. Do not assume a form described as “routine paperwork” leaves every unpaid item intact.
Speak With a New York Miller Act Attorney About Your Unpaid Balance
You have already invested labor, materials, and money in the project. The next step is to determine what you can recover and what must happen to preserve that opportunity.
Contact Kushnick Pallaci PLLC to discuss your federal construction payment dispute. Tell us who hired you, how much is owed, where the project is located, and when you last worked or delivered materials. We can evaluate whether a Miller Act payment bond claim fits your situation and explain the next steps.
Call (631) 752-7100 or (212) 752-7155, or request a consultation online. If you believe a deadline is approaching, say so when you contact us.
Attorney Advertising. This article provides general information and does not constitute legal advice or create an attorney-client relationship. Prior results do not guarantee a similar outcome.
