The Miller Act requires lawsuits against a Miller Act payment bond may not be brought until 90 days after the claimant’s final furnishing on the project:
Every person that has furnished labor or material in carrying out work provided for in a contract for which a payment bond is furnished under section 3131 of this title and that has not been paid in full within 90 days after the day on which the person did or performed the last of the labor or furnished or supplied the material for which the claim is made may bring a civil action on the payment bond for the amount unpaid at the time the civil action is brought and may prosecute the action to final execution and judgment for the amount due.
40 USC s. 3133(b)(1).
Thus, if a claimant is owed money (potentially, substantial sums) and continues to perform nonetheless, it cannot bring a Miller Act payment bond suit until 90 days after its final furnishing. Regardless of how unfair this may sound, this is exactly what the Miller Act says (see above).
However, there is authority that even if a claimant “prematurely” files suit (or prior to 90 days before its final furnishing date), it can file a supplemental pleading / complaint versus the harsh remedy of the complaint being dismissed after the statute of limitations to resue the payment bond expired. See U.S. f/u/b/o Capitol Electric Supply Co. v. C.J. Electrical Contractors, Inc., 535 F.2d 1326, 1327 (1st Cir. 1976) (“We shall proceed, therefore, on the assumption, which may or may not be so, that suit was commenced prematurely, viz., before ninety days had elapsed after the relevant material was furnished. Even so, we think Capitol [claimant] should not be barred from relief under the Act.”); accord Security Ins. Co. of New Haven Conn. v. U.S. f/u/b/o Haydis, 338 F.2d 444 (9th Cir. 1964) (allowing supplemental claimant from supplier to relate to original action even though filed more than one year after material was last supplied).
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