Federal Miller Act Bond Claims
Payment Bond Deadlines & Notice Requirements Under 40 U.S.C. §3131-3134
Federal Miller Act payment bond deadline table with toggles for project type and claimant type.
Federal Miller Act Preliminary Notice & Payment Bond Deadlines
Select your role to see the deadlines that apply to you.
Prime Contractor — Principal on the payment bond
Contract remedies against the federal government through the Contract Disputes Act, subject to that statute's notice and limitations requirements.
Preliminary Notice
Bond Claim
Lawsuit to Enforce Bond Claim
Contract remedies against the federal government through the Contract Disputes Act, subject to that statute's notice and limitations requirements.
Obtaining a Copy of the Bond
Under 40 U.S.C. §3133(a), any subcontractor or material supplier who furnished labor or materials on a federal project is entitled to a certified copy of the payment bond. The certified copy is issued by the department secretary or agency head of the contracting federal agency.
The request must include an affidavit confirming that the requester furnished labor or materials on the project and has not been paid. Obtaining the bond identifies the surety and confirms the penal sum, and is typically the first step before serving a notice of claim.
Where to Send the Payment Bond Claim
Under 40 U.S.C. §3133(b)(2), the 90-day notice of claim is served on the general contractor that furnished the payment bond. The federal contracting agency is not a required recipient of the notice, though best practice is to also send a copy to the surety identified on the certified bond to put it on notice of the claim.
The notice must be served in writing by any means that provides written, third-party verification of delivery. In practice, that means registered or certified mail with return receipt requested, or personal service with a written acknowledgment of receipt. The 90-day window runs from the last date the claimant furnished labor or materials, and strict compliance is required.
The Federal Miller Act (40 U.S.C. §3131-3134) is the federal statute that protects subcontractors and material suppliers on federal construction projects. Because liens cannot be filed against property owned by the United States Government, the Miller Act requires general contractors to furnish a payment bond equal to the amount of the original contract to guarantee payment to those who furnish labor and materials on the project.
Miller Act bond claims are strictly limited to two tiers of claimants: those in direct contractual privity with the general contractor (first-tier), and those in direct contractual privity with a first-tier subcontractor (second-tier). Claimants below the sub-subcontractor level or suppliers to suppliers generally cannot make a claim under a Miller Act bond.
National Lien & Bond provides authoritative guidance on every aspect of Federal Miller Act compliance, from eligible claimant determination through notice requirements and suit filing deadlines.
Eligible Claimants Under the Miller Act
The Miller Act strictly limits who may make a claim against the general contractor's payment bond. Only two tiers of claimants are eligible:
- First-Tier Claimants: Contractors or materialmen in direct contractual privity with the general contractor
- Second-Tier Claimants: Contractors or materialmen in direct contractual privity with a subcontractor, who must themselves be in direct contractual privity with the general contractor
- Excluded: Those below the sub-subcontractor level, or suppliers to suppliers, cannot make a claim under a Miller Act bond
There is one narrow exception: a lower-tier claimant may be able to make a claim if they can collapse tiers or demonstrate that the materials are integral to the contract and can only be manufactured by that claimant.
Click here to see a chart of eligible claimantsNotice Requirements
First-Tier Claimants (Privity with General Contractor)
Contractors or materialmen who are in direct contractual privity with the general contractor are not required to serve any preliminary notice or other notice as a condition to making a bond claim. No lien is available on federal property.
Second-Tier Claimants (Privity with First-Tier Subcontractor)
Contractors or materialmen who are in direct contractual privity with a subcontractor (who must be in direct contractual privity with the general contractor) are not required to serve a preliminary notice. However, they must serve written notice on the general contractor within 90 days of their last substantial performance of work or delivery of materials. No lien is available on federal property.
Claimants Below Second Tier
Those below the sub-subcontractor level or suppliers to suppliers cannot make a claim under a Miller Act bond and have no notice rights or suit rights. The only exception is where a claimant can collapse tiers because the materials are integral to the contract and can only be manufactured by that claimant.
Suit Filing Deadlines
Suit Timeline for All Eligible Claimants
Both first-tier and second-tier claimants must file suit within one year of last substantial performance of work or delivery of materials. However, suit may not be filed before 90 days after the last work or material was supplied. 40 U.S.C. §3133.
This creates a specific filing window: no earlier than 90 days after last furnishing, and no later than one year after last furnishing.
No Lien Available
Construction liens cannot be filed against property owned by the United States Government. The Miller Act payment bond is the exclusive remedy for unpaid subcontractors and material suppliers on federal construction projects.
Payment Bond Requirements
Under the Federal Miller Act, any Federal Government construction contract exceeding $150,000 requires the prime contractor to furnish a payment bond. This bond is intended to protect subcontractors and material suppliers who provide labor, services, or materials on the federal project. See 40 U.S.C. § 3131(b)(2); 40 U.S.C. § 3133(b).
The payment bond substitutes for the lien rights that would otherwise be available on private construction projects. It is the primary mechanism through which the federal government ensures that workers and suppliers are paid for their contributions to public works.
Federal Construction Contracts Between $35,000 and $150,000: Alternative Payment Protections
A Miller Act payment bond is only mandatory on federal construction contracts exceeding $150,000. For federal construction contracts greater than $35,000 but not greater than $150,000, the prime contractor is not automatically required to furnish a Miller Act payment bond. Instead, FAR 28.102-1(b), implementing 40 U.S.C. § 3132, requires the contracting officer to select two or more alternative payment protections, giving particular consideration to an irrevocable letter of credit as one of the selected alternatives.
The four alternative payment protections authorized for the $35,000–$150,000 tier are:
- Payment bond. A surety payment bond similar in form to the Miller Act bond, securing payment to subcontractors and suppliers on the federal project.
- Irrevocable letter of credit (ILC). A letter of credit issued by a federally insured financial institution that subcontractors and suppliers may draw against when the prime contractor fails to pay.
- Tripartite escrow agreement. The prime contractor establishes an escrow account in a federally insured financial institution and enters into an agreement with the institution (as escrow agent) and all suppliers of labor and material. The Government pays the contractor’s escrow account and the escrow agent distributes funds to subcontractors and suppliers under the agreement or triggers dispute-resolution procedures.
- Certificates of deposit. Certificates of deposit assigned to the Government as security for payment to subcontractors and suppliers on the federal project.
Why This Tier Matters for Subcontractors and Suppliers
If you are a subcontractor or supplier on a federal construction project in the $35,000–$150,000 range and you are not paid, your remedy is not a Miller Act bond claim. You must instead identify which alternative payment protection the contracting officer selected, obtain a copy of the protection instrument from the contracting officer or prime contractor, and pursue the specific procedure that governs that instrument — for example, drawing against the ILC within its term, making demand on the escrow agent under the tripartite escrow agreement, or making a claim on the smaller payment bond. Each alternative carries its own notice requirements, documentary evidence requirements, and enforcement timelines, which are typically shorter and less forgiving than Miller Act deadlines.
Contracts of $35,000 or Less
FAR 28.102-1 does not require a Miller Act payment bond or the alternative payment protections for federal construction contracts of $35,000 or less. On these small federal jobs, subcontractors and suppliers must rely on their direct contract with the prime contractor, careful documentation of work and deliveries, and breach-of-contract remedies. Because federal property cannot be liened, there is no mechanic’s lien backstop.
Frequently Asked Questions
What is the Federal Miller Act?
The Federal Miller Act (40 U.S.C. §3131-3134) requires general contractors on federal construction projects over $150,000 to furnish a payment bond equal to the amount of the original contract. This bond protects subcontractors and material suppliers because liens cannot be filed against federal property.
Who can make a claim under a Miller Act payment bond?
Only two tiers of claimants are eligible: (1) subcontractors and materialmen in direct contractual privity with the general contractor, and (2) subcontractors and materialmen in direct contractual privity with a first-tier subcontractor who is in privity with the general contractor. Those below sub-subcontractor or supplier to supplier cannot make a claim.
Is a preliminary notice required under the Miller Act?
Claimants in direct privity with the general contractor do not need to serve any notice. Claimants in privity with a first-tier subcontractor (second-tier claimants) must serve written notice on the general contractor within 90 days of their last substantial performance.
What is the suit deadline under the Miller Act?
Suit must be filed within one year of last substantial performance, but not before 90 days after the last work or material was supplied. 40 U.S.C. §3133.
Can a supplier to a supplier make a Miller Act bond claim?
Generally no. Those below the sub-subcontractor level or suppliers to suppliers cannot make a claim under a Miller Act bond, unless the claimant can collapse tiers because the materials are integral to the contract and can only be manufactured by that claimant.
Can I file a lien on federal property?
No. Liens cannot be filed against property owned by the United States Government. The Miller Act payment bond is the exclusive remedy for subcontractors and suppliers on federal construction projects.
What is the Miller Act threshold and when did it increase to $150,000?
The Federal Miller Act payment and performance bond requirement applies to federal construction contracts exceeding $150,000. FAR 28.102-1(a) implements 40 U.S.C. § 3131 and confirms the $150,000 threshold. Earlier guidance referenced $100,000; the controlling threshold under current FAR is $150,000.
What protections apply on federal construction contracts between $35,000 and $150,000?
For federal construction contracts greater than $35,000 but not greater than $150,000, a Miller Act payment bond is not automatically required. Instead, under FAR 28.102-1(b) and 40 U.S.C. § 3132, the contracting officer must select two or more alternative payment protections, giving particular consideration to an irrevocable letter of credit. The permitted alternatives are: a payment bond, an irrevocable letter of credit (ILC), a tripartite escrow agreement, or certificates of deposit.
What is a tripartite escrow agreement under FAR 28.102-1?
A tripartite escrow agreement is one of the alternative payment protections available on federal construction contracts between $35,000 and $150,000. The prime contractor establishes an escrow account at a federally insured financial institution and enters into a written agreement with the institution (as escrow agent) and all suppliers of labor and material. The Government pays the contractor’s escrow account, and the escrow agent distributes the funds to subcontractors and suppliers under the agreement or triggers the dispute-resolution procedures.
What if a federal construction contract is $35,000 or less?
FAR 28.102-1 does not require a Miller Act payment bond or the alternative payment protections for federal construction contracts of $35,000 or less. Subcontractors and suppliers on these small federal jobs should document their contracts carefully, demand progress payment records, and pursue breach-of-contract remedies against the prime if they are not paid.