Miller Act Deadline Calculator — Federal Payment Bond Claims (40 U.S.C. § 3133)

Section 3131 is the threshold-and-bond requirement. It tells contracting officers when bonds are required, what kinds of bonds are required, and in what amounts. Every Miller Act analysis begins here because no payment bond means no Miller Act remedy for the unpaid subcontractor.

Subsection (a) — Definition

For purposes of the chapter, a “contractor” is the person awarded a federal construction contract described in subsection (b). The defined term matters because Miller Act obligations attach to the prime contractor, not to subcontractors or suppliers further down the chain.

Subsection (b) — Type of Bonds Required

Before the Federal Government awards a construction contract “of more than $100,000” for the construction, alteration, or repair of any public building or public work, the awarded contractor must furnish two bonds, each of which becomes binding when the contract is awarded:

1. A performance bond — with a surety satisfactory to the contracting officer and in an amount the officer considers adequate, for the protection of the United States.
2. A payment bond — with a surety satisfactory to the contracting officer for the protection of all persons supplying labor and material in carrying out the work. The payment bond amount must equal the total contract price unless the contracting officer makes a written finding, supported by specific reasons, that a bond in that amount is impractical — and even then, the payment bond cannot be less than the performance bond.

Subsection (c) — Coverage of Bonds

Each bond must specifically state on its face the contractual obligation for which it is given. Bonds may not contain language waiving any of the Miller Act’s requirements. Sureties cannot contract their way out of the statute.

Subsection (d) — Waiver for Foreign-Country Contracts

A contracting officer may waive the bond requirement on contracts to be performed in a foreign country if furnishing the bonds is impracticable. This subsection is amplified in § 3134 below.

Subsection (e) — Additional Bonds Authorized

Section 3131 does not limit a contracting officer’s authority to require additional bonds or other security beyond those specified in subsection (b). Many federal agencies impose supplemental bonding for high-risk projects.

Section 3132 governs the band of contracts between $35,000 and the § 3131(b) threshold — in practice today, between $35,000 and $150,000 once FAR adjustments are applied. For these middle-tier projects, the contracting officer is not required to demand a full payment bond and may instead select two or more payment-protection alternatives. The statute lists the available alternatives and instructs the officer to give “particular consideration” to including an irrevocable letter of credit:

• A payment bond.
• An irrevocable letter of credit.
• A tripartite escrow agreement involving the prime contractor, an escrow agent, and a person furnishing labor or material.
• Certificates of deposit.
• United States bonds or notes deposited as security.

Section 3133 is the most important provision for an unpaid subcontractor or supplier. It defines who can sue, when they can sue, where they can sue, and how long they have to do it. Missing any of these procedural requirements is fatal — the deadlines are jurisdictional under federal precedent.

(a) — Right of Person Furnishing Labor or Material to Copy of Bond

The department secretary or agency head of the contracting agency must furnish a certified copy of the payment bond and the contract for which it was given to any person who has supplied labor or material on the project, on request, supported by an affidavit stating that the person has not been paid in full. Sureties and prime contractors must produce the bond paperwork; this is not optional. The certified copy is prima facie evidence of the bond’s contents in any subsequent proceeding.

(b)(1) — Right to Bring a Civil Action (the Core Enforcement Right)

Every person who has “furnished labor or material” on a Miller Act bonded contract and who has not been paid in full within 90 days after the day on which the person did or performed the last of the labor or furnished or supplied the material may bring a civil action on the payment bond for the unpaid amount.

This 90-day period is sometimes confused with the second-tier notice deadline in (b)(2) — they are different requirements. The 90 days in (b)(1) is the waiting period before suit can be filed; the 90 days in (b)(2) is the notice obligation imposed on second-tier claimants only.

(b)(2) — The 90-Day Notice for Second-Tier Claimants

A claimant with a contractual relationship to a subcontractor — but no contractual relationship to the prime contractor — must serve a written notice of claim on the prime contractor within 90 days from the date on which the claimant did or performed the last of the labor or furnished or supplied the last of the material for which the claim is made. The notice must:

• State with substantial accuracy the amount claimed; and
• Identify the party to whom the material was furnished or for whom the labor was performed.

Service must be by a method providing “written, third-party verification of delivery” to the contractor at any place the contractor maintains an office, conducts business, or resides — or in the manner a U.S. marshal may serve summons in the district where the project is located.

(b)(3) — Venue

A Miller Act civil action must be brought:

• In the name of the United States for the use of the person bringing the action; and
• 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.

Miller Act jurisdiction is exclusively federal. State courts have no jurisdiction over a payment bond claim brought under § 3133, and the venue rule is exclusive to the district where the project was performed — not where the surety, prime, or claimant resides.

(b)(4) — The One-Year Statute of Limitations

An action 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. Federal courts treat the one-year period as a substantive condition on the right to sue, not a procedural limitations period — equitable tolling is rarely available. The one-year clock runs from the date of last labor or last delivery, not from the date of nonpayment, the date of the disputed invoice, or the date the bond was furnished.

(b)(5) — Restrictions on Waiver

A waiver of the right to sue on a Miller Act payment bond is void unless the waiver is (A) in writing, (B) signed by the person whose right is waived, and (C) executed after that person has furnished labor or material for the project. Pre-job waiver clauses buried in subcontracts — even if signed — are unenforceable as a matter of federal law.

(c) — Constructive Notice for Non-Payment of Certain Employee Benefits

Subsection (c) governs the special rule for trustees of employee-benefit plans (such as multi-employer pension and welfare funds) seeking to recover unpaid contributions on behalf of covered workers. The general procedural framework of § 3133(b) applies, with conforming adjustments to the “last labor performed” trigger.

Section 3134 codifies the contracting officer’s authority to waive the Miller Act bond requirements for federal contracts performed outside the United States, where furnishing a bond from a domestic surety is impracticable. The waiver is discretionary, subject to the contracting officer’s written finding of impracticability. When a foreign-country waiver is in place, subcontractors and suppliers on the project lose their Miller Act payment-bond remedy and must rely on contractual or local-law claims instead.

Every state has enacted its own counterpart statute, commonly called the “Little Miller Act,” that imposes parallel bonding requirements on state and municipal construction contracts within that state. Little Miller Acts are not identical to the federal statute — thresholds, notice deadlines, suit deadlines, and notice content vary by state. National Lien & Bond’s state-by-state enforcement guides cover the operative requirements in each jurisdiction:

• California — How to Enforce Miller Act Claims
• Texas — Enforce Miller Act Claims
• Florida — Steps Required to Enforce Little Miller Act Claims
• Illinois — Steps Required to Enforce Little Miller Act Claims
• New York — How to Enforce Miller Act Claims
• Pennsylvania — How to Enforce Miller Act Claims
• Georgia — How to Enforce Miller Act Claims
• North Carolina — How to Enforce Miller Act Claims
• Tennessee — Enforcing Little Miller Act Claims
• Massachusetts — Steps Required to Enforce Miller Act Claims
• Federal Miller Act vs. State Little Miller Acts — Compared

What is the dollar threshold that triggers a Miller Act payment bond?

The Miller Act statute itself, at 40 U.S.C. § 3131(b), sets the threshold at “more than $100,000.” The Federal Acquisition Regulation (FAR 28.102-1(a)(1)) has been adjusted under 41 U.S.C. § 1908 inflation rules and currently requires payment and performance bonds on federal construction contracts exceeding $150,000. The $150,000 number is the operative threshold contracting officers apply today; the statutory floor remains $100,000.

Who is protected by a Miller Act payment bond?

Any “person furnishing labor or material” in carrying out the federal construction contract is protected, but only if their tier in the project chain qualifies. First-tier claimants — those with a direct contract with the prime contractor — have automatic standing to sue on the bond. Second-tier claimants — those with a direct contract with a first-tier subcontractor — are protected only if they comply with the § 3133(b)(2) 90-day notice requirement. Federal courts have generally held that third-tier claimants and below have no Miller Act standing at all (see Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., 322 U.S. 102 (1944)).

What is the 90-day notice requirement under Section 3133(b)(2)?

Second-tier claimants — those without a direct contractual relationship with the prime contractor — must serve a written notice on the prime contractor within 90 days from the date the claimant last performed labor or last supplied materials on the project. The notice must state with substantial accuracy the amount claimed and identify the party for whom the labor or material was furnished. It must be delivered by a method that provides written third-party verification of delivery (or by U.S. marshal service). Failure to serve a compliant 90-day notice extinguishes the second-tier claimant’s right to sue on the payment bond.

How long do I have to sue on a Miller Act payment bond?

One year from the date of last labor performed or last material supplied by the claimant on the project. The one-year period in § 3133(b)(4) is treated by federal courts as a substantive condition on the right of action, not an ordinary procedural statute of limitations — equitable tolling is exceedingly rare, and the clock does not restart based on subsequent invoicing, billing disputes, or partial payments. Calculate the deadline from the date of last work, and file no later.

In what court must a Miller Act lawsuit be filed?

Exclusively in the United States District Court for the federal judicial district in which the contract was to be performed and executed, regardless of the amount in controversy. State courts have no jurisdiction. The action must be captioned in the name of the United States “for the use of” the claimant, even though the United States is not actively prosecuting the action.

Can I waive my Miller Act rights in a subcontract?

Pre-performance waivers of Miller Act rights are void by federal law. Under § 3133(b)(5), a waiver is enforceable only if it is in writing, signed by the person whose right is waived, and executed after that person has furnished labor or material to the project. A subcontract clause signed before work begins — even if it purports to waive payment bond claims — cannot operate as a Miller Act waiver.

What is the difference between the Miller Act and a state’s Little Miller Act?

The federal Miller Act applies to federal construction projects only. Each state has enacted its own counterpart statute — commonly called a “Little Miller Act” — that imposes payment-bond requirements on state and municipal projects within that state. Little Miller Acts are not uniform: dollar thresholds, notice deadlines, suit deadlines, notice content, and venue rules vary substantially by jurisdiction. The federal Miller Act is the exclusive remedy on a federal project; the state Little Miller Act is the exclusive remedy on a state or municipal project. The two statutes do not overlap.

Can I recover attorneys’ fees on a Miller Act claim?

The Miller Act itself does not authorize fee-shifting. However, the U.S. Supreme Court in F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116 (1974), held that attorneys’ fees may be recovered in a Miller Act action when the underlying subcontract independently provides for them, applying state law to determine entitlement. Practically, this means a Miller Act claimant can recover fees only if (a) the subcontract or supply contract contains a fee-shifting clause and (b) state contract law would enforce that clause on the same facts.

How do I obtain a copy of the prime contractor’s payment bond?

Submit a written request to the contracting agency that awarded the project — typically the procurement office of the federal department or agency named in the contract — supported by an affidavit stating that you have furnished labor or material on the project and have not been paid in full. Section 3133(a) obligates the agency to furnish a certified copy of the payment bond and the underlying contract on receipt of a compliant request. The certified copy is prima facie evidence of the bond’s terms in any subsequent litigation.

What happens if the payment bond amount is less than the total claims against it?

Multiple-claimant cases on an under-funded payment bond are litigated as a single proceeding. Federal courts apportion bond proceeds among competing claimants — typically pro rata, though the equities of any individual claim can affect the distribution. Joining the suit promptly matters: claimants who file later face both the one-year § 3133(b)(4) deadline and the practical risk of the bond being exhausted by earlier-filing parties.