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Big thank you to our friend Christopher Hill who operates the Construction Law Musings blog for allowing me to become his blog's first three-time Guest Post Friday writer.

This morning, Musing's published a blog post I wrote titled "A Lien By Any Other Name Can Sound Just As Sweet."  

The article provides readers with a broad overview of the lien-like remedies available to them, as they differ based upon the classes of projects. In large part, the article explains the difference between a traditional lien (filed against the property on private projects) and a "claim" type of lien (filed against a bond on a state and federal project).

Of course, this post only skims the surface, but sometimes, it's the basic information that is needed to help folks understand the details. And why is it important to understand these details? The article on Musings concludes with that answer as follows:

Regardless of what class of project you’re working on, a lien-like remedy is probably available to you in the event of non-payment. However, it’s critical to understand the different remedies available at the onset of construction, for each remedy carries different pre-lien or pre-claim requirements.

Take a look at the article by clicking him, and be sure to subscribe to Christopher's blog which posts great information relevant to those in the construction industry.

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Last week Express Lien, LLC published an article about the Public Works Act and how claims against state owned and operated projects can be perfected. The article served as an introduction to the process of perfecting a claim against the state-affiliated agency as well as any contractors up the ladder. Though the article served as an introduction to the state-wide practices, Wolfe Law Group has decided to open its discussion of state public works claims by starting at the top of our nation's lien food chain - The Miller Act.

The Miller Act is the federal law requiring contractor surety bonds on federal construction projects (40 U.S.C. Section 3131-3134). This law requires a contractor on a federal project to post two bonds: a performance bond and a labor and material payment bond. Simply, the contractor must provide legal assurance that (a) the job gets completed and (b) the persons working get paid.


Specifically, the Miller Act provides that all projects for the improvement of federal lands, or federally operated lands, on a contract of at least $100,000.00, shall required that the contractor furnish the federal government with (a) a performance bond in an amount that the contracting officer regards as adequate for the protection of the federal government; and (b) separate payment bond for the protection of suppliers of labor and materials. The amount of the payment bond shall be equal to the total amount payable by the terms of the contract unless the contracting officer awarding the contract makes a written determination supported by specific findings that a payment bond in that amount is impractical, in which case the amount of the payment bond shall be set by the contracting officer. The amount of the payment bond shall not be less than the amount of the performance bond.

Further, many states have enacted "Little Miller Acts," which are often referred to as the "Public Works Act." Louisiana's act can be found at La. R.S. 38:2212, et seq., and Washington's similar law can be found under Title 39 of the Revised Code of Washington.

A claim pursuant to the federal Miller Act is relatively simple. Such a claim must be made within 90 days from the last date of performance or delivery of materials on the job, HOWEVER this requirement can be waived if in fact the claimant has contracted (has privity) directly with the general contractor holding the bond. Since the claim is required to be made against the party holding the bond, the notice is rendered moot.

In the instance that you, as a subcontractor or supplier, have not been able to file a claim within the 90 day period, but you did contract directly with the general and prime contractor, you can perfect your claim simply by bringing suit within 1 year of the completion of your performance, to foreclose the claim against the liable parties, who in this case would be the general contractor, surety and the owner.

Therefore, you cannot rest upon a failed attempt to get the claim made within the 90 day period. Do not assume that your rights to payment against the surety are not perfected and contact an attorney in order to ensure that you still have rights.

In the next installments, we will discuss the state public works laws and the process for reviewing bonds, making claims and collecting amounts due.

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