Chapter 5 - § 5.2 PROJECTS COVERED BY MILLER ACT

• Jurisdiction: Colorado

§ 5.2 PROJECTS COVERED BY MILLER ACT

Simply put, the Miller Act applies to any project on property owned by the Federal Government.⁷ The scope of federal projects covered is broad and through an extensive body of case law, courts have interpreted the statute to extend to and include contracts for military personnel housing,⁸ boat and ship work,⁹ canal and dam work,¹⁰ and demolition.¹¹ Courts have held that either of the following must be true in order for the Miller Act to apply: (1) the subcontractors and material suppliers could assert a claim for equitable recovery against the United States or one of its agencies, or (2) normal state lien remedies are not available because of federal ownership of the land where labor or materials were furnished.¹² Despite its ability to have broad application, the Miller Act does, however, permit its provisions to be waived for certain military, transportation, and National Oceanic and Atmospheric Administration contracts.¹³ In such a scenario the only protection available to a party not receiving payment would be contractual; therefore, when providing work, labor, or materials on a federal project it is advisable for parties to know if the Miller Act applies or not. Making this determination at an early stage of a project can enable a party to be well aware of its rights and seek to address issues early on when it may have more leverage with a prime contractor.

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Notes:

^[7] 40 U.S.C. § 3131(b).

^[8] Autrey v. Williams & Dunlap, 343 F.2d 730, 736 (5th Cir. 1965).

^[9] United States ex rel. Owens v. Olympic Marine Servs., Inc., 827 F. Supp. 1232, 1234 (E.D. Va. 1993).

^[10] United States ex rel. Karosh v. Otis Williams & Co., 30 F. Supp. 590, 592 (D. Idaho 1939).

^[11] Chicago Rigging Co. v. Uniroyal Chemical Co., 718 F. Supp. 696, 701 (N.D. Ill. 1989).

^[12] Arena, 669 F.3d 214.

^[13] 40 U.S.C. § 3134.