Subcontractors and suppliers working on federal construction projects cannot file a mechanics lien against government-owned property, but they do have a federal statutory payment remedy: a Miller Act payment bond claim under 40 U.S.C. § 3133. The prime contractor on any federal contract exceeding $150,000 is required by 40 U.S.C. § 3131 to furnish a payment bond, and claimants who are not in direct contract with the prime must serve written notice of the claim on the prime contractor within 90 days of the date they last furnished labor or materials. The deadline to file suit to enforce the claim is one year from the date of last furnishing. Missing either deadline eliminates your right to recover on the bond.
Who Is Protected Under the Federal Miller Act?
The Miller Act protects subcontractors, laborers, and material suppliers who furnish labor or materials on a covered federal contract — but the tier of your contract determines whether you must serve a written notice. Under 40 U.S.C. § 3133(b)(2), claimants who have a direct contractual relationship with the prime contractor are not required to serve the 90-day written notice as a condition of bringing a bond claim. Claimants who do not have a direct contract with the prime — meaning sub-subcontractors and suppliers to subcontractors — must serve that notice on the prime to preserve their claim rights under 40 U.S.C. § 3133(b)(2).
In plain terms:
- First-tier subcontractors (direct contract with the prime): No written notice to the prime required before suit.
- Second-tier and below (sub-subs, suppliers to subs): Written notice to the prime is mandatory within 90 days of last furnishing.
The statute does not extend protection to claimants who have no contractual relationship with any subcontractor or supplier in the chain that leads to the prime. If you supplied a sub-sub who was not part of a subcontract chain traceable to the prime, you may fall outside the statute's protection — that is a fact-specific question and worth running by a construction attorney before you file.
What Federal Projects Trigger Miller Act Bond Requirements?
The Miller Act applies to construction, alteration, or repair contracts awarded by the federal government when the contract amount exceeds $150,000, per 40 U.S.C. § 3131(b). The prime contractor must furnish both a performance bond and a payment bond before starting work.
Projects that typically fall under the Miller Act include:
- Federal building construction and renovation (courthouses, post offices, VA facilities, military installations)
- Federal highway and infrastructure projects funded directly by a federal agency
- Contracts awarded by the Army Corps of Engineers, GSA, DoD, or similar agencies
The Miller Act does not apply to purely state or local public projects, even when they receive some federal grant funding. State and local public works projects are governed by their own "Little Miller Act" statutes, which vary by state. If you are on a state DOT job, a county courthouse, or a city utility project, the Miller Act does not apply — look to the relevant state bond claim statute instead.
What Are the Miller Act Bond Claim Deadlines for Subcontractors?
There are two hard deadlines that govern a Miller Act payment bond claim, and neither is forgiving.
The 90-day written notice deadline applies to claimants who do not have a direct contract with the prime. Under 40 U.S.C. § 3133(b)(2), these claimants must serve written notice on the prime contractor within 90 days from the date on which the claimant last furnished labor or materials for which the claim is made. This is not a notice of intent — it is a notice of the claim itself.
The one-year suit deadline applies to all Miller Act claimants. Under 40 U.S.C. § 3133(b)(4), no civil action on a Miller Act payment bond may be commenced after the expiration of one year from the date on which the last of the labor was performed or material was supplied for which the claim is made.
Both deadlines run from the date of last furnishing, not from the invoice date, the contract completion date, or the date you first realized payment was overdue. If you sent a crew back for a one-day punch-list item on December 1, your last furnishing date is December 1 — and your 90-day notice window runs from there. Courts have generally held that minor corrective work or warranty callbacks may not reset the clock, so document the nature of every work visit carefully.
Missing the 90-day notice deadline as a second-tier claimant is a complete bar to recovery on the bond. Missing the one-year suit deadline bars any civil action regardless of tier.
What Are the Notice Requirements for a Miller Act Payment Bond Claim?
The notice required under 40 U.S.C. § 3133(b)(2) must be in writing, must state with substantial accuracy the amount claimed and the name of the party to whom the labor or materials were furnished, and must be served on the prime contractor.
The statute specifies that notice must be served by any means that provides written, third-party verification of delivery. The statute references registered mail as one acceptable method. Courts have generally accepted certified mail as compliant. Personal delivery with a signed acknowledgment has also been upheld in various federal decisions, but the case law is not uniform across all circuits — if you are not using registered or certified mail, consult an attorney about service method before relying on it.
Key elements to include in your notice:
- Your company name and contact information
- The federal project name and location
- The name of the prime contractor and the surety if known
- The name of the party you contracted with (the subcontractor above you, if applicable)
- A description of the labor or materials furnished
- The amount claimed, with reasonable specificity
- The date of last furnishing
Serving notice on the surety at the same time as the prime is not required by the statute but is standard practice. Obtain the surety's name and bond number from the prime contractor's bond — you can request a copy of the payment bond from the contracting federal agency; 40 U.S.C. § 3133(b)(1) gives claimants the right to request a certified copy of the bond and the contract.
Miller Act Claim vs. State Bond Claim: Key Differences
Federal and state bond claim rules follow different frameworks, and confusing them is a fast way to lose your rights.
| Factor | Miller Act (Federal) | Typical State "Little Miller Act" |
|---|---|---|
| Governing law | 40 U.S.C. §§ 3131–3134 | State statute (varies) |
| Contract threshold | $150,000 | Varies by state (often $25,000–$100,000) |
| 90-day notice | Required for non-prime claimants | Varies — some states require notice for all tiers |
| Suit deadline | 1 year from last furnishing | Varies — often 1 year, sometimes shorter |
| Notice recipient | Prime contractor | Varies — may include owner, surety, or GC |
| Bond availability | Public record via federal agency | Varies — may require formal request |
State Little Miller Act statutes in Florida, Texas, California, Washington, and elsewhere each have their own notice periods, claimant tier rules, and suit deadlines. Do not assume a rule from one state's public works bond statute applies to another state or to federal work.
What Documentation Do You Need for a Miller Act Claim?
Strong documentation is the difference between a bond claim that pays out and one that gets contested into the ground. Before you serve your notice — and well before you file suit — assemble the following:
Contract documentation:
- Your subcontract or purchase order with the party who hired you
- The prime contract number and federal agency (available from the prime or the contracting agency)
- A copy of the payment bond (request from the federal contracting officer under 40 U.S.C. § 3133(b)(1))
Work and delivery records:
- Certified payrolls, daily field reports, or timesheets documenting when labor was performed
- Delivery receipts, bills of lading, or supplier invoices showing when materials were delivered
- Photographs or inspection sign-offs showing work was performed
Billing and payment records:
- All invoices submitted, with dates
- Proof of any partial payments received
- Any written communications acknowledging the debt, requesting extensions, or disputing amounts
Correspondence:
- Emails, letters, or texts from the prime or upper-tier sub acknowledging your work
- Any notice of dispute or withholding from the prime
Accurate records of your last furnishing date are critical. If the prime challenges the date, your job logs and delivery receipts are your evidence. According to Rabbet's 2024 Construction Payments Report, 82% of contractors face payment waits of over 30 days — and on federal jobs, those delays can stretch long enough that subs lose track of exactly when they last put boots on the ground.
What Is the Miller Act Lawsuit Process for Unpaid Federal Subcontractors?
If the 90-day notice (where required) has been served and payment is still not forthcoming, the next step is a civil lawsuit in federal district court. Miller Act suits must be filed in the United States District Court for the district where the contract was performed, per 40 U.S.C. § 3133(b)(3)(B).
The defendant in a Miller Act suit is the surety that issued the payment bond, not the federal government. You are suing on the bond, not on the underlying contract. The prime contractor may be joined as a defendant as well.
The general process:
- Serve the 90-day notice (if required by your tier) within the deadline.
- Attempt to resolve the claim — most experienced construction attorneys will send a formal demand to the surety before filing. Sureties sometimes pay valid claims without litigation once a properly documented claim is presented.
- File the complaint in the appropriate federal district court before the one-year suit deadline.
- Serve the surety and prime in accordance with federal civil procedure rules.
- Litigate or settle — many Miller Act claims settle once suit is filed and the claimant's documentation is solid.
Retain a construction attorney who handles federal contract disputes. This is not a small-claims process, and federal court procedure has its own requirements separate from anything in the Miller Act itself. The one-year suit deadline under 40 U.S.C. § 3133(b)(4) is a statute of limitations — courts have dismissed claims filed even one day late.
The broader payment problem that makes this process necessary is real: according to Rabbet's 2024 Construction Payments Report, slow payments cost the U.S. construction industry an estimated $280 billion in 2024, adding roughly 14% to total construction spending. Subcontractors on federal jobs are not insulated from that problem.
Frequently Asked Questions
Does the Miller Act apply to state and local government projects?
No. The Miller Act applies only to construction contracts awarded by the federal government exceeding $150,000 under 40 U.S.C. § 3131. State and local public projects — including state DOT jobs, county buildings, and city utility work — are governed by each state's own "Little Miller Act" or public works bond statute, which have different notice periods, thresholds, and procedures.
Can I file a mechanics lien on a federal project instead of a Miller Act claim?
No. Federal property is immune from mechanics liens under the Supremacy Clause of the U.S. Constitution. The Miller Act payment bond is the statutory substitute for lien rights on federal projects. If there is no bond — for example, if the prime failed to obtain one as required — your remedy is different and you should consult a construction attorney immediately.
What happens if the prime contractor never obtained a payment bond as required?
If a prime contractor fails to furnish the required payment bond on a federal contract over $150,000, the government contracting officer may be liable for the failure to require it, and you may have a direct claim against the prime. This is a complex situation that varies based on the facts and requires legal counsel — do not assume the Miller Act's remedies automatically substitute for a missing bond.
Is the 90-day written notice required for first-tier subcontractors?
No. Under 40 U.S.C. § 3133(b)(2), claimants who have a direct contractual relationship with the prime contractor are not required to serve the 90-day written notice as a condition of bringing a claim. The notice requirement applies to those who do not have a direct contract with the prime — typically sub-subcontractors and suppliers to subcontractors.
Can I serve the 90-day notice by email or fax?
The Miller Act references registered mail as an acceptable service method under 40 U.S.C. § 3133(b)(2). Courts in various federal circuits have addressed alternative service methods with varying results. Certified mail is widely accepted. Email and fax have not been uniformly upheld across all circuits — consult a construction attorney before relying on either, and retain proof of any delivery you use.
Does last furnishing include warranty callbacks and punch-list work?
Courts have generally held that minor corrective work performed to satisfy warranty obligations does not reset the last furnishing date for Miller Act purposes. Substantive punch-list work — completing contract-required items before final acceptance — is treated differently than post-acceptance warranty callbacks. The line between the two is fact-specific, and courts have not applied a uniform rule. Document the nature and contractual basis of every site visit near the end of a project.
What if the surety denies my Miller Act claim?
A surety denial does not end your rights. If the surety denies a valid claim, you file suit in federal district court before the one-year deadline under 40 U.S.C. § 3133(b)(4). Sureties sometimes deny claims on procedural grounds — a missing notice, a disputed last-furnishing date, or incomplete documentation. Strengthening your documentation before filing a formal demand often resolves denials before litigation becomes necessary.
How is a Miller Act claim different from a contract dispute with the prime?
A Miller Act payment bond claim is a statutory claim against the surety's bond, not a breach-of-contract claim against the prime. You can pursue both simultaneously, but they proceed under different legal frameworks. The bond claim is governed by the Miller Act's deadlines and notice rules. A contract claim against the prime is governed by the underlying contract terms and applicable federal or state law. Many claimants pursue both, with counsel coordinating the strategy.
Protect Your Payment Rights on Federal and Private Jobs
The Miller Act gives subcontractors a real path to payment on federal projects — but the deadlines are hard, the notice rules depend on your contract tier, and missing either the 90-day notice or the one-year suit deadline eliminates your claim entirely.
On private projects in the states where LienFlash operates, preliminary notices are your equivalent protection — and the deadline math is just as unforgiving. If you are juggling multiple jobs across different states, knowing your exact deadlines is not optional.
Use the LienFlash deadline calculator to find your preliminary notice deadline based on your first-furnishing date and project state. For federal work, take what you learned here to a construction attorney and move fast — clocks on Miller Act claims do not stop running while you wait to see if the prime pays.