Chapter 5 - § 5.4 WHO CAN BRING MILLER ACT CLAIMS

• Jurisdiction: Colorado

§ 5.4 WHO CAN BRING MILLER ACT CLAIMS

The Miller Act clearly defines the parties that are permitted to make claims against both payment and performance bonds. As discussed above, the U.S. Government is the party whose interest is secured by any performance bond that is issued.³⁰ However, in the context of payment bonds, the Miller Act specifically, under 40 U.S.C. § 3133(b)(1), states:

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 of the amount due.

In other words, the scope of interests that are provided protection under a Miller Act payment is broad, as 40 U.S.C. § 3133(b)(1) makes provision for any person that provided labor or furnished or supplied the material for which the claim is made. However, for parties not in privity of contract with a prime contractor there are additional steps that must be undertaken in order to have a claim. Specifically, 40 U.S.C. § 3133(b)(2) provides further clarification and extends the right of pursuing a claim as follows:

A person having a direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor furnishing the payment bond may bring a civil action on the payment bond on giving written notice to the contractor within 90 days from the date on which the person did or performed the last of the labor or furnished or supplied the last of the material for which the claim is made. The action must state with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed.

So, while 40 U.S.C. § 3133(b)(1) clarifies the scope of coverage provided by the Miller Act as being broad in scope (any person that provided labor or furnished or supplied the material for which the claim is made³¹ ), the relationship of a claimant to the prime contractor impacts any additional steps (as discussed below in § 5.6) that must be taken to pursue a claim. With that said, there are limitations to the extent an unpaid...