Properly Serving the Notice of Nonpayment under the Miller Act

If you are in privity of contract with a subcontractor on a federal project (such as a supplier or subcontractor to a subcontractor) then under the Miller Act you have 90 days from the date you “performed the last of the labor or furnished or supplied the last of the material for which the claim is made” (your final furnishing date) to serve a notice of nonpayment on the prime contractor. The notice of nonpayment needs to state with substantial accuracy the amount claimed. Failure to properly serve the notice of nonpayment will be fatal to your Miller Act payment bond claim. Don’t let this happen to you!

For example, in a case a sub-subcontractor admittedly did not serve a notice of nonpayment. Yet, the sub-subcontractor still sued the Miller Act payment bond surety arguing that because the subcontractor that hired it served a notice of nonpayment that included amounts owed to the sub-subcontractor, this should be sufficient under the Miller Act. But, the very letter the sub-subcontractor relied on to satisfy its notice of nonpayment requirement (a) never mentioned the sub-subcontractor and (b) never identified any amount specifically owed to the sub-subcontractor.   Based on this, the court held that the subcontractor’s failure to properly serve a notice of nonpayment was fatal to its Miller Act payment bond claim.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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