The Miller Act (40 U.S.C. §§ 3131–3134) lets unpaid first- and second-tier subcontractors and suppliers on federal construction projects claim against the prime contractor's payment bond. Second-tier claimants must give written notice within 90 days of their last labor or materials, and every claimant must sue within one year of that date.
Federal work can be good work for a Northeast Georgia trade business: steady projects, large contracts, and a government owner that pays its bills. The trouble usually starts further down the chain. The prime contractor gets paid, but the money never reaches you, or a subcontractor you supplied goes under owing you for a truckload of materials. On a federal job, the usual Georgia mechanic's lien is not the tool you reach for. The prime contractor's payment bond is.
The Miller Act requires that bond on most federal construction contracts and gives unpaid subcontractors and suppliers the right to sue on it. Those rights come with deadlines measured in days, a notice requirement that trips up second-tier claimants, and a lawsuit that has to be filed in a specific federal court. Jerry Parisi helps NE Georgia subcontractors and suppliers figure out where they stand, get notice out on time, and press the claim against the prime and its surety.
What the Miller Act is and when it applies
The Miller Act is the federal law, now codified at 40 U.S.C. §§ 3131–3134, that requires contractors on federal construction projects to post a performance bond and a payment bond. The performance bond protects the government. The payment bond protects the people who furnish labor and materials to the project, so you have someone solvent to collect from when the contractor above you doesn't pay.
The statute itself refers to contracts over $100,000, but the operative threshold in the Federal Acquisition Regulation is higher: payment and performance bonds are required for federal construction contracts over $150,000 (FAR 28.102-1). For contracts over $35,000 up to $150,000, the contracting officer must require two or more alternative payment protections, such as a payment bond, an irrevocable letter of credit, or a tripartite escrow agreement.
On a bonded project, the payment bond generally equals 100% of the contract price unless the contracting officer finds in writing that this is impractical, and it can't be less than the performance bond. That means the bond is usually large enough to cover legitimate claims from the subs and suppliers on the job.
Who can make a Miller Act claim
Miller Act rights reach only the first two tiers below the prime contractor. Knowing your tier is the first thing to figure out, because it controls whether you need to send notice and whether you have a bond claim at all.
- First tier: subcontractors, suppliers, and laborers who contracted directly with the prime contractor
- Second tier: those who contracted with a first-tier subcontractor but have no contract, express or implied, with the prime
- Third tier and beyond: a sub-subcontractor's supplier, or a supplier to a supplier, has no Miller Act bond claim
- Your tier depends on who you actually contracted with, not on what the purchase order or invoice happens to call you
The 90-day notice rule for second-tier claimants
If you are a second-tier claimant, you must give written notice to the prime contractor within 90 days from the last day you performed labor or supplied material for which you are claiming. Miss that window and you can lose the right to sue on the bond, even if the money is plainly owed.
The notice must state with substantial accuracy the amount you are claiming and the name of the party you furnished the materials or labor to. It must also be delivered in a way the statute accepts:
- By any means that provides written, third-party verification of delivery to the prime contractor, such as certified mail with a return receipt or a courier that provides signed proof of delivery
- Delivered to any place the prime maintains an office or conducts business, or to the prime's residence
- Or in any manner in which the U.S. marshal for the district where the project is located may serve a summons
- Keep a copy of the notice and the delivery proof. If the claim ends up in court, you will need both
First-tier claimants: the 90-day wait
First-tier subcontractors and suppliers don't send the 90-day notice to the prime, because the prime already knows who they are. Instead, a first-tier claimant may bring suit on the payment bond if it has not been paid in full within 90 days after the day it performed the last labor or furnished the last material for which the claim is made.
That 90-day wait is a floor, not a deadline. The one-year suit deadline still runs from the same last day of work, so a first-tier claimant who waits months hoping for a check can find the window closing fast.
The one-year suit deadline and where to file
Every Miller Act suit must be filed no later than one year after the day the claimant last performed labor or supplied material on the project. Negotiations with the prime or the surety don't pause that clock on their own, so it pays to calendar the date the day your work ends.
The suit has a required form and a required court. It is brought in the name of the United States for the use of the claimant, and it is 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. For a project here in Georgia, that means federal court in the district covering the job site, not the county superior court where you'd file a lien suit.
Before filing, you can get the bond details. The statute allows a claimant to obtain a certified copy of the bond and contract on affidavit, and the FAR requires the contracting officer to provide the surety's name and address, the bond amount, and a copy of the bond on request.
Can you waive your Miller Act rights?
Primes sometimes slip waiver language into subcontracts or purchase orders signed before work begins. Under 40 U.S.C. § 3133(c), a waiver of the right to sue on a Miller Act payment bond is void unless it is in writing, signed by the person whose right is being waived, and executed after that person has furnished labor or material for use in the performance of the contract.
In practice, that means a blanket waiver buried in your subcontract before you ever showed up on site should not, by itself, cost you your bond rights. A waiver you sign mid-project in exchange for a payment is a different story. Read every waiver and release carefully, and have it reviewed before you sign anything that trades bond rights for a partial check.
How Parisi Law Firm helps with federal bond claims
If you're unpaid on a federal job anywhere in Jefferson, Jackson County, or Northeast Georgia, call (404) 594-5130 to schedule a consultation. The sooner we see your paperwork, the more of your deadlines are still open.
- Identifying your tier and pinning down your true last day of labor or materials
- Drafting and serving second-tier notice that meets the statute's content and delivery rules
- Obtaining the bond and surety information and presenting the claim to the prime and its surety
- Reviewing waivers, releases, and subcontract payment terms before you sign
- Filing suit in the name of the United States in the correct federal district when a claim won't resolve
- Explaining your options if you are a third-tier supplier outside the bond's reach
State and local projects are different
The Miller Act covers federal projects only. If your unpaid work was on a Georgia state, county, city, or school project, Georgia's own public-works bond statutes apply, with their own thresholds, notice steps, and deadlines. See our page on public project bond claims for how those work, and don't assume the federal rules carry over.
Miller Act requirements: first tier vs. second tier
| Requirement | First-tier claimant | Second-tier claimant |
|---|---|---|
| Who you contracted with | The prime contractor | A first-tier subcontractor (no contract with the prime) |
| Notice to the prime | Not required | Written notice within 90 days of last labor or materials |
| Notice contents | Not applicable | Amount claimed and the name of the party you furnished to, with substantial accuracy |
| Notice delivery | Not applicable | Written third-party verification of delivery, or any manner a U.S. marshal may serve a summons |
| When you may sue | If not paid in full within 90 days after last labor or materials | After giving timely written notice |
| Suit deadline | One year after last labor or materials | One year after last labor or materials |
| Where to sue | U.S. District Court where the contract was to be performed, in the name of the United States | U.S. District Court where the contract was to be performed, in the name of the United States |
Frequently Asked Questions
Who can make a Miller Act claim?
Subcontractors, suppliers, and laborers who contracted directly with the prime contractor (first tier), and those who contracted with a first-tier subcontractor (second tier), can claim against a Miller Act payment bond. Anyone further down the chain, such as a supplier to a sub-subcontractor, has no Miller Act bond claim.
What is the Miller Act notice deadline?
Second-tier claimants must give written notice to the prime contractor within 90 days from the last day they performed labor or supplied material for the claim. The notice must state the amount claimed and who the work was furnished to, and be delivered with written third-party verification of delivery or as a U.S. marshal may serve a summons.
Do first-tier subcontractors need to send notice?
No. First-tier claimants, who contracted directly with the prime, don't give the 90-day written notice. They may sue on the payment bond if they haven't been paid in full within 90 days after their last labor or materials, but they still must file suit within one year of that last day.
How long do I have to file a Miller Act lawsuit?
A Miller Act suit must be filed no later than one year after the day you last performed labor or supplied material on the project. Talks with the prime or its surety don't automatically extend that deadline, so mark the date as soon as your work on the job ends and get advice well before it arrives.
Where do I file a Miller Act lawsuit?
The suit is brought in the name of the United States for your use, 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. It is a federal court case, not a filing in the county superior court where a Georgia lien suit would go.
Can I waive my Miller Act rights?
Only in limited circumstances. Under 40 U.S.C. § 3133(c), a waiver of the right to sue on the payment bond is void unless it is in writing, signed by you, and executed after you have furnished labor or material for the project. Waivers signed mid-project for payment can be effective, so review them before signing.
What if I'm a third-tier supplier?
Third-tier and more remote suppliers have no claim on a Miller Act payment bond. That doesn't necessarily mean you're out of options: you may have contract claims against the company that ordered from you, or rights under your credit terms or any guaranty. Talk with a lawyer promptly to see what remains.
What size federal contracts require a payment bond?
Under FAR 28.102-1, payment and performance bonds are required for federal construction contracts over $150,000. For contracts over $35,000 up to $150,000, the contracting officer must require two or more alternative payment protections, such as a payment bond, an irrevocable letter of credit, or a tripartite escrow agreement.