If you are a subcontractor not paid on a federal project, you cannot file a mechanics lien against the property — the federal government owns the land and is immune from lien claims. Your primary remedy is a payment bond claim under the Miller Act, 40 U.S.C. § 3131 et seq. Federal contracts over $100,000 for construction, alteration, or repair of a public building or public work require the prime contractor to furnish a payment bond. Whether you have a direct claim against that bond, and what notice — if any — you must give before suing, depends on your tier in the contracting chain under 40 U.S.C. § 3133. Missing the applicable deadline to bring suit bars your claim entirely. Consult a construction attorney to evaluate your specific situation before any deadline passes.
Can Subcontractors File a Mechanics Lien on a Federal Construction Project?
No — mechanics liens cannot be filed against federal government property. The federal government holds sovereign immunity, which means you cannot encumber land it owns through a state lien law. This is not a technicality or a paperwork issue. It is a hard legal wall. Private project protections that rely on the threat of a lien against real property simply do not exist on federal work.
This matters because mechanics lien rights are the primary payment protection tool for most subcontractors on private jobs. If you work in Florida, California, or another state with strong lien statutes, you may be accustomed to having that backstop. On a federal job, that backstop is gone.
The replacement protection is the Miller Act payment bond — and understanding how it works is the only practical path forward when a prime contractor has not paid you.
What Is the Miller Act and Who Does It Protect?
The Miller Act, codified at 40 U.S.C. §§ 3131–3134, requires prime contractors on federal construction contracts exceeding $100,000 to obtain two bonds before work begins: a performance bond protecting the government, and a payment bond protecting subcontractors and suppliers who furnish labor or materials.
Under 40 U.S.C. § 3133(b)(1), the payment bond covers "every person that has furnished labor or material in carrying out work provided for in the contract." That language is broad, but the statute draws a critical distinction between first-tier and second-tier claimants.
First-tier claimants have a direct contractual relationship with the prime contractor. Electricians, plumbers, roofers, HVAC contractors, and drywall subs hired directly by the GC typically fall here.
Second-tier claimants — meaning those who contracted with a first-tier subcontractor rather than the prime — also have Miller Act rights under 40 U.S.C. § 3133(b)(2), but they are subject to a written notice requirement before they can sue on the bond.
Third-tier and lower parties — those who contracted with a second-tier sub — are generally not covered by the Miller Act. If you are that far removed from the prime contract, your remedies are limited to your direct contractual relationship with whoever hired you.
Who Is Responsible for Paying Subcontractors on Federal Projects?
The prime contractor is directly responsible for paying first-tier subcontractors under their subcontract agreements. The federal government agency is responsible for paying the prime contractor under the prime contract. The agency does not have a direct payment obligation to subcontractors.
This matters practically: if the federal agency paid the prime in full and the prime has not passed that money down to you, your fight is with the prime contractor — and the Miller Act payment bond is your enforcement mechanism, not a claim against the agency.
Some federal contracts include Prompt Payment Act provisions (31 U.S.C. §§ 3901–3907) that govern how quickly agencies must pay primes and how quickly primes must pay subs. But the Prompt Payment Act is a regulatory framework, not a direct cause of action that substitutes for a Miller Act bond claim. If you are sitting on unpaid invoices, the bond claim is where your legal leverage lives.
According to Rabbet's 2024 Construction Payments Report, 82% of contractors face payment waits of over 30 days, up from 49% just two years earlier. That problem is not unique to federal work, but on federal jobs you have fewer fallback options — which makes acting on your bond rights early even more important.
What Notice Is Required Before Filing a Miller Act Bond Claim?
This is where your tier in the contract chain determines everything, and where many unpaid subcontractors make costly mistakes.
First-tier subcontractors (direct contract with the prime): Under 40 U.S.C. § 3133(b)(2), first-tier claimants are not required to give written notice to the prime contractor or the surety before bringing a civil action on the bond. You can proceed directly to suit once the claim conditions are met.
Second-tier claimants (contract with a first-tier sub, no direct relationship with the prime): You must give written notice to the prime contractor within 90 days from the date on which you last furnished labor or materials. This notice requirement is stated in 40 U.S.C. § 3133(b)(2). The statute specifies that the notice 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." The statute does not prescribe certified mail as the exclusive delivery method, but sending written notice in a manner that creates a verifiable delivery record is prudent practice.
Do not assume you know your tier without confirming who contracted you. If your hiring party was itself a sub to the prime — not the prime itself — you are a second-tier claimant and the 90-day notice window applies to you.
What Is the Deadline to File Suit on a Miller Act Payment Bond Claim?
Under 40 U.S.C. § 3133(b)(4), a civil action on a Miller Act payment bond must be brought no later than one year after the day on which the last of the labor was performed or material was supplied by the person bringing the action.
This is a one-year period measured from your last day of furnishing — not from the date of the prime contract completion, not from the date you submitted your final invoice, and not from when you first demanded payment. Your last day on-site or your last material delivery is the start of the clock.
Missing this deadline is not a procedural inconvenience. It is a complete bar to your Miller Act claim. Courts have consistently treated this as a statute of limitations that, once expired, eliminates the claim.
If you are a second-tier claimant, you are operating under two separate deadlines simultaneously: the 90-day notice window and the one-year suit deadline. You must meet both.
Given that the average days sales outstanding in construction is approximately 90 days — double the 45-day threshold financial experts consider healthy, according to Rabbet's 2024 data — it is easy to see how subcontractors can burn through half their notice window just waiting to see if payment eventually arrives.
What Documentation Do You Need for a Federal Construction Bond Claim?
A Miller Act claim that lacks documentation is a weak claim. Before you engage an attorney or send any notice, gather and organize the following:
Contract documents:
- Your signed subcontract or purchase order
- Any written scope changes, change orders, or supplemental agreements
- The prime contract number and the name of the federal contracting agency (these identify the bond)
Work and billing records:
- Certified payrolls (if applicable to your work)
- Invoices with dates, amounts, and project references
- Delivery tickets, material receipts, or shipping records
- Any lien waivers or partial payment receipts you have already signed — these establish what has and has not been paid
Correspondence:
- Emails, texts, or letters requesting payment
- Any responses from the prime contractor disputing the amount or timeline
- Notices to proceed, stop-work orders, or termination notices
Bond information:
- The payment bond itself, including the surety's name and bond number — you can request a copy of the payment bond from the federal contracting officer under 40 U.S.C. § 3133(b)(1), which states that the bond must be available for examination
Assembling this before you contact the surety or file suit prevents the claim from stalling on procedural objections. Sureties will scrutinize the documented amount claimed, and any gap between your records and your demand number creates leverage for the surety to dispute or delay.
What Happens If the Federal Contract Was Under $100,000?
If the prime contract is below the $100,000 threshold, the Miller Act's bonding requirement does not apply under 40 U.S.C. § 3131(b). There is no mandatory payment bond, and there may be no bond at all.
In that situation, your remedies are:
- Your subcontract agreement — breach of contract claim against the prime contractor directly
- Any voluntary bond — some primes carry payment bonds even when not required; ask the contracting officer if a bond exists
- Federal agency dispute mechanisms — if the agency itself failed to pay the prime in a way that caused your non-payment, an attorney can advise whether any administrative remedies exist
- State court breach of contract action — you still have a contract with the prime, and unpaid invoices are a breach regardless of the project type
The absence of Miller Act coverage does not eliminate your claim. It removes the bond as an enforcement tool and forces you back to direct legal action against whoever owes you money under your contract.
What Are Your Practical Next Steps If You Are Not Getting Paid?
Work through these steps in order, and do not let the calendar run while you wait for the prime to respond:
Confirm your tier. Identify whether you contracted directly with the prime or with another sub. This determines your notice obligations.
Identify the bond. Contact the federal contracting officer and request the payment bond information. The surety's name and bond number are essential before you can make a claim.
Document the amount owed. Reconcile your invoices against any payments received and produce a clean written accounting of the unpaid balance.
Send written notice if you are a second-tier claimant. Do it now, not after more calls to the prime. The 90-day window from your last furnishing date does not pause while you wait for a return call.
Engage a construction attorney. Miller Act claims involve federal court jurisdiction, and the procedural requirements matter. This is not the place to file pro se and figure out the rules as you go.
Watch the one-year suit deadline. Even if settlement discussions are ongoing, the one-year period under 40 U.S.C. § 3133(b)(4) does not toll because you are talking. If you are approaching that window, your attorney needs to know immediately.
On private projects in states like Florida or California, preliminary notices serve a similar protective function — preserving your right to enforce payment before a deadline eliminates it. The discipline of tracking and hitting notice deadlines on private work translates directly to the urgency required on federal bond claims.
Frequently Asked Questions
Can a supplier who sold materials to a subcontractor file a Miller Act claim?
Yes, if the supplier furnished materials on a covered federal project, they may have Miller Act rights. A supplier who sold directly to a first-tier sub is a second-tier claimant and must serve written notice on the prime contractor within 90 days of the date they last supplied materials, per 40 U.S.C. § 3133(b)(2). A supplier who sold directly to the prime is a first-tier claimant and is not subject to the written notice requirement before suit.
Does the Miller Act apply to all federal construction projects?
No. The Miller Act applies to contracts for construction, alteration, or repair of a public building or public work of the federal government where the contract amount exceeds $100,000, under 40 U.S.C. § 3131(b). Contracts below that threshold are not required to carry a Miller Act payment bond, though a voluntary bond may still exist.
What court handles a Miller Act payment bond lawsuit?
Miller Act suits are brought in federal district court. Under 40 U.S.C. § 3133(b)(3)(B), the suit must be filed 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. State courts do not have jurisdiction over Miller Act claims.
Can a prime contractor retaliate against me for filing a Miller Act claim?
Federal law does not include an explicit anti-retaliation provision tied directly to Miller Act claims in the same way some employment statutes work. However, filing a legitimate bond claim is a legal right. If a prime contractor terminates your subcontract in direct response to a valid claim, that may give rise to separate breach of contract or tortious interference claims — but these are fact-specific and require legal advice.
Does sending a demand letter to the prime contractor satisfy the second-tier notice requirement?
Possibly, if the letter meets the statutory requirements under 40 U.S.C. § 3133(b)(2): it must be in writing, addressed to the prime contractor, state the amount claimed with substantial accuracy, and identify the party for whom the labor was done or materials were furnished. A vague email asking for payment is unlikely to satisfy this standard. Have an attorney review the notice before you send it if there is any doubt.
What if the prime contractor disputes my invoice amount on a federal job?
A disputed amount does not eliminate your right to file a Miller Act claim. You file for what you are owed based on your documented work and contracts. The surety and the prime can challenge the amount in litigation, and the court resolves the dispute. The critical point is not to delay filing because the prime is contesting numbers — the clock runs on the amount undisputed and disputed alike.
Is certified mail required for the Miller Act second-tier notice?
The Miller Act statute at 40 U.S.C. § 3133(b)(2) does not specify certified mail as the exclusive required delivery method for the second-tier written notice. However, you need to be able to prove the prime contractor received the notice. Using a method that creates a verifiable delivery record — whether certified mail, overnight courier with signature confirmation, or another documented method — is a matter of practical evidence protection, not statutory mandate. Consult an attorney on the best approach for your situation.
Do state prompt payment laws apply on federal construction projects?
Generally, no. State lien and prompt payment statutes apply to private construction and, in some cases, state-funded public projects. Federal construction is governed by federal law, including the Miller Act and, where applicable, the federal Prompt Payment Act (31 U.S.C. §§ 3901–3907). State-level prompt payment remedies do not reach federal projects. Your subcontract may also include contractual payment terms that create separate obligations enforceable as a matter of contract law, regardless of the project type.
Protect Your Payment Rights Before the Deadline Passes
Miller Act deadlines do not stop running while you wait for the prime to return your calls. If you last furnished labor or materials on a federal job and have not been paid, the one-year suit window under 40 U.S.C. § 3133(b)(4) is already counting. If you are a second-tier claimant, your 90-day written notice window may be running even faster.
On private projects, LienFlash helps subcontractors in Florida, California, Arizona, Nevada, Washington, Oregon, Texas, and New Mexico file preliminary notices quickly — with attorney-reviewed templates, USPS Certified Mail, and a Certificate of Mailing PDF, all in about two minutes. Keeping your private-project lien rights protected is a system, not a last-minute scramble.
Start protecting your payment rights on private jobs today, and make sure a construction attorney is in your corner on any federal project where payment has gone dark.