Chapter 5 - § 5.6 NOTICE REQUIREMENTS AND TIMING

• Jurisdiction: Colorado

§ 5.6 NOTICE REQUIREMENTS AND TIMING

Pursuant to 40 U.S.C. § 3133(b), assuming the nature of what is being provided is within the scope of the Miller Act and applicable timeframes have run, a subcontractor in a direct contractual relationship with a prime contractor does not have the requirement to serve notice on the prime contractor for a claim. Courts have held that a subcontractor's right to recovery on a Miller Act payment bond accrues 90 days after the subcontractor has completed its work, not based on when the prime contractor or surety is paid by the federal government.⁵²

For material suppliers in direct contractual relationship with the subcontractor or other subcontractors that contract directly with the subcontractor, but have no express or implied contractual relationship with the prime contractor, there is a requirement that notice be provided in writing to the prime contractor within 90 days from the date on which the last labor was performed or materials were supplied.⁵³ It is important to note that bonds often have notice requirements, independent of the Miller Act notice requirements, necessitating a demand or notice to the surety.⁵⁴ In order to have a valid Miller Act claim against a payment bond, a material supplier⁵⁵ must show: (1) it has supplied materials in prosecution of the work provided for in the prime contract; (2) it has not been paid for the material supplied; (3) it believed in good faith that the materials were intended for the specified work; and (4) it complied with jurisdictional prerequisites to bringing the action.⁵⁶ When a material supplier or sub-subcontractor provides notice to the prime contractor, the notice must be served in a manner that "provides written, third-party verification of delivery to the contractor at any place where the contractor maintains an office or conducts business or at the contractor's residence;" or in any manner a U.S. Marshal where the "public improvement is situated by law may serve summons."⁵⁷

The Miller Act, 40 U.S.C. § 3133(b)(3), provides that:

A civil action brought under this subsection must be brought—

(A) in the name of the United States for the use of the person bringing the action; and

(B) in the United States District Court for any district in which the contract was to be performed and executed, regardless of the amount in controversy.

In order to bring a civil action against the bond, the complaint against the surety must contain specific information.⁵⁸ For any...