The Miller Act Deadlines That Decide Whether You Get Paid on a Federal Project

You Cannot Lien Federal Property

On a private project, an unpaid subcontractor or supplier records a mechanic's lien against the real estate. On a federal project, that remedy does not exist. You cannot place a lien on a federal courthouse, a military base, or a VA hospital, because public property is not subject to private liens.

Congress built a substitute. The Miller Act, 40 U.S.C. sections 3131 through 3134, requires the prime contractor on most federal construction contracts to post a payment bond before work begins. That bond stands in for the property. When you are not paid, you make a claim against the surety on the bond rather than against the land. Two deadlines control that claim, and missing either one ends it.

When a Payment Bond Is Required

Under 40 U.S.C. section 3131(b), a prime contractor awarded a federal construction contract over $100,000 must furnish a payment bond for the protection of those supplying labor and materials. For smaller contracts, those at or below $150,000, the contracting officer may select alternative payment protections in place of a bond under section 3132. On a federal job of any real size, a payment bond is the standard protection.

The practical takeaway is simple. If you supplied labor or materials to a federal project and went unpaid, you have a right to the bond's protection. Your first step on any federal job is to obtain a copy of the bond. You are entitled to it, and you want the surety's name and the bond number in your file before a payment problem ever arises.

Who Is Protected, and Who Is Not

The Miller Act does not protect everyone on the project. It protects two tiers of claimants.

First-tier claimants have a direct contract with the prime contractor. Subcontractors and suppliers who contracted directly with the prime are protected and do not have to serve any preliminary notice to preserve their rights.

Second-tier claimants have a direct contract with a first-tier subcontractor, not with the prime. They are protected, but only if they serve the 90-day notice described below.

Claimants more remote than the second tier are generally not protected. A supplier to a supplier, or a sub-subcontractor below the first-tier subcontractor, typically falls outside the Miller Act. If you are far down the chain on a federal project, confirm your tier before you rely on the bond, because the protection runs out below the second tier.

Deadline One: The 90-Day Notice (Second-Tier Claimants)

A claimant who does not have a direct contract with the prime contractor must give written notice to the prime within 90 days from the last day on which the claimant furnished labor or materials. This is 40 U.S.C. section 3133(b)(2). A first-tier claimant, in privity with the prime, does not need to serve this notice.

The notice has to state, with substantial accuracy, the amount claimed and the name of the party to whom the labor or materials were furnished. It must be served on the prime contractor by any means that provides written, third-party verification of delivery. Certified mail, return receipt requested, is the standard method, and you keep the receipt.

The clock runs from your last day of furnishing on the project, not from the date of your invoice and not from the date payment was due. Calendar it from the last day your people or your materials were on the job.

Deadline Two: The One-Year Suit Window

The second deadline is the lawsuit. Under 40 U.S.C. section 3133(b), a claimant may bring a civil action on the payment bond, but the timing is fixed on both ends. Suit may not be filed until 90 days after the claimant's last day of furnishing labor or materials, and it must be filed no later than one year after that same last day. See 40 U.S.C. section 3133(b)(4).

The action is brought in the name of the United States for the use of the claimant, in the United States District Court for the district in which the contract was to be performed, regardless of the amount in controversy. That venue is set by statute, so the claim lands in federal court whether the unpaid balance is five figures or seven.

One year is not a long window on a construction receivable. Calendar the one-year date the moment you record your last day of furnishing, and do not let settlement talks run the clock out. The deadline does not pause because the parties are negotiating.

Common Failure Modes

Counting from the invoice instead of last furnishing. Both Miller Act deadlines run from the last day labor or materials were actually furnished to the project. Billing dates and payment-due dates do not control. Pull the delivery tickets and daily reports and fix the real last-furnishing date.

Assuming you do not need notice because you have a contract. A contract with a first-tier subcontractor is not a contract with the prime. If your contract is with a sub rather than the prime, you are a second-tier claimant and the 90-day notice to the prime is mandatory.

Serving the notice on the wrong party. The 90-day notice goes to the prime contractor, not to the subcontractor who hired you and not to the surety. Serve the prime, and serve it by a method that proves delivery.

Waiting past one year because talks were ongoing. Negotiations do not extend the suit deadline. File within one year of last furnishing or the bond claim is gone.

Treating a smaller contract as automatically bonded. Federal payment protection can change shape at or below $150,000, where the contracting officer may use alternatives to a payment bond. If your contract sits in that range, confirm what protection was required before you assume a standard payment bond is in place.

Action Checklist for Federal Projects

At the start of any federal job, obtain a copy of the payment bond and record the surety's name and the bond number. Identify your tier: do you contract with the prime, or with a first-tier subcontractor? On your last day of furnishing, calendar two dates from that day: 90 days for the notice if you are a second-tier claimant, and one year for suit on the bond. Serve any required 90-day notice on the prime by certified mail and keep the receipt. Preserve delivery tickets, daily reports, and signed receipts that fix your first and last days of furnishing. If payment stalls, engage counsel well before the one-year date so the suit can be filed in time.

The work to protect a Miller Act claim is front-loaded and inexpensive. The cost of missing the 90-day notice or the one-year suit deadline is the entire receivable.