The Miller Act Payment Bond Claim: A Federal Contractor's Guide

A Miller Act payment bond claim is the legal remedy available to subcontractors and material suppliers who have not been paid on a federal construction project. Under the Miller Act (40 U.S.C. §§ 3131–3134), any federal construction contract exceeding $100,000 requires the prime contractor to post both a performance bond and a payment bond. The payment bond exists specifically to protect the downstream parties — subcontractors, laborers, and suppliers — who cannot file a mechanics lien against federal property. If you have furnished labor or materials on a federal project and you are not getting paid, the payment bond is your primary collection tool.

Key Takeaways

• The Miller Act requires payment bonds on all federal construction contracts over $100,000. This is your substitute for lien rights, which do not exist on federal property.
• Your eligibility and notice requirements depend on your tier. First-tier subcontractors (those with a direct contract with the prime) have different obligations than second-tier subs and suppliers.
• Second-tier claimants must send written notice to the prime contractor within 90 days of the last date they furnished labor or materials.
• Every claimant has exactly one year from the date they last performed work or supplied materials to file suit in federal court.
• Failing to meet either deadline — the 90-day notice or the one-year filing window — can permanently bar your claim.

Why the Miller Act Exists

Federal property is sovereign. You cannot place a mechanics lien on a federal building, military base, or highway project the way you can on private or state/local government work. Congress recognized that this left subcontractors and suppliers dangerously exposed. The Miller Act, originally enacted in 1935 and amended in 1999, fills that gap by requiring the prime contractor to obtain a surety bond that guarantees payment down the chain.

According to the U.S. Government Accountability Office, the federal government awarded approximately $157 billion in construction and facility-related contracts in fiscal year 2024 (GAO, 2025). Thousands of subcontractors and suppliers are working under these bonds at any given time. Most never need to file a claim. But when a prime contractor defaults, disputes an invoice, or simply slow-pays for months, the bond is there.

Who Can File a Miller Act Payment Bond Claim

Not every party on a federal project has bond claim rights. The Miller Act defines eligibility by tiers, based on your contractual relationship to the prime contractor.

First-Tier Claimants

A first-tier claimant is any subcontractor or supplier who has a direct contractual relationship with the prime contractor. This includes:

• Subcontractors hired by the prime
• Material suppliers who sell directly to the prime
• Equipment rental companies with contracts directly with the prime

First-tier claimants have the strongest position. They do not need to send a preliminary notice to preserve their bond rights — they can proceed directly to filing suit if payment is not made.

Second-Tier Claimants

A second-tier claimant is any party that has a direct contractual relationship with a first-tier subcontractor, but not with the prime contractor. Examples:

• A lumber supplier who sells materials to a subcontractor (not the prime)
• A sub-subcontractor hired by a first-tier sub
• An equipment rental firm leasing to a first-tier sub

Second-tier claimants do have bond rights, but they carry an additional obligation: they must send written notice to the prime contractor within 90 days. Miss that window and the claim is gone.

Third-Tier and Below: No Coverage

Parties with no direct contract with either the prime contractor or a first-tier subcontractor have no rights under the Miller Act. A supplier to a sub-subcontractor, for example, cannot make a payment bond claim. The protection extends only two tiers deep.

First-Tier vs. Second-Tier: Comparison Table

The 90-Day Notice Requirement for Second-Tier Claimants

This is the deadline that catches the most people off guard. If you are a second-tier subcontractor or supplier — meaning you have no direct contract with the prime — you must provide written notice to the prime contractor within 90 days of the last date you furnished labor or materials on the project.

What the Notice Must Include

The statute requires the notice to state "with substantial accuracy" the amount claimed and the name of the party to whom the labor or materials were furnished. In practice, your notice should contain:

• Your company name and contact information
• The name and address of the prime contractor
• The name of the first-tier subcontractor you worked for
• A description of the project (contract number, location)
• The amount unpaid
• The dates you last furnished labor or materials

How to Deliver the Notice

The notice must be served by any means that provides written, third-party evidence of delivery. The safest methods are:

• Certified mail, return receipt requested (most common)
• Hand delivery with a signed receipt
• Service in the manner prescribed by the Federal Rules of Civil Procedure

Do not rely on email alone. While some courts have accepted electronic notice in limited circumstances, the statute envisions physical delivery, and the stakes are too high to test the boundary.

What Happens If You Miss the 90-Day Window

Your bond claim is extinguished. There is no equitable exception, no "good cause" extension, and no workaround. The surety will deny the claim, and a federal court will dismiss the case. This is a hard deadline.

The One-Year Statute of Limitations

Every Miller Act claimant — first-tier and second-tier alike — must file suit no later than one year after the last date they performed work or delivered materials on the project. This is codified at 40 U.S.C. § 3133(b)(4).

The one-year period is not measured from the date payment was due, not from the date you sent an invoice, and not from the date the prime contractor denied your claim. It runs from the last day you physically furnished labor or materials.

According to a study by the Surety & Fidelity Association of America, surety companies paid approximately $1.87 billion in bond claims in 2023, with construction payment bond claims accounting for a significant share (SFAA, 2024). Many valid claims are never filed because claimants did not understand the one-year deadline.

The suit must be filed in the United States District Court for the district in which the project is located. State courts do not have jurisdiction over Miller Act claims.

Step-by-Step: How to File a Miller Act Payment Bond Claim

Step 1: Confirm You Have Bond Rights

Determine your tier. If you contracted directly with the prime, you are first-tier. If your contract is with a subcontractor, you are second-tier. If you are further removed, you likely have no claim.

Step 2: Identify the Bond and Surety

The prime contractor's payment bond is a public record. You can request a copy from the contracting agency, or search for it through the agency's contracting office. The bond will name the surety company — the entity that guarantees payment.

Step 3: Send Notice (Second-Tier Claimants)

If you are second-tier, prepare and deliver your written notice to the prime contractor within 90 days of your last date of work or delivery. Keep proof of delivery.

Step 4: Submit a Claim to the Surety

Contact the surety company directly and submit a formal claim. Include copies of your contract or purchase orders, invoices, delivery receipts, lien waivers (if any), and a summary of the amount owed. The surety will investigate and respond, often within 30–60 days.

Step 5: Negotiate or File Suit

Many claims are resolved at this stage. If the surety denies or underpays the claim, your next step is filing suit in the appropriate U.S. District Court. Remember: you must file within one year of your last date of furnishing labor or materials.

Worked Example: A Subcontractor's Miller Act Claim Timeline

Consider a second-tier electrical supplier — let's call them Brightline Electric Supply — who delivers materials to a first-tier electrical subcontractor on a federal courthouse renovation. Here is the timeline:

June 15, 2026 — Brightline makes its last delivery of materials to the job site.

June 16 – September 12, 2026 (Day 1 – Day 89) — The 90-day notice window is open. Brightline has not been paid.

August 20, 2026 (Day 66) — Brightline sends written notice via certified mail to the prime contractor, identifying the amount owed ($87,400), the first-tier sub, and the project details. This is safely within the 90-day window.

September 13, 2026 (Day 90) — Last day to send the notice. Brightline already sent it, so they are protected.

October 1, 2026 — Brightline files a formal claim with the surety company, attaching the notice, purchase orders, delivery receipts, and unpaid invoices.

November 15, 2026 — The surety responds, acknowledging the claim and requesting additional documentation.

January 10, 2027 — The surety offers a partial settlement of $72,000. Brightline's counsel negotiates.

March 1, 2027 — Settlement talks stall. Brightline must now decide whether to file suit.

June 15, 2027 — Absolute deadline. Exactly one year from the last date Brightline furnished materials. Suit must be filed in U.S. District Court before this date or the claim is forever barred.

April 22, 2027 — Brightline files suit with two months to spare.

When to Involve Construction Counsel

A few situations demand legal help early:

• You are unsure of your tier. Misclassifying yourself can mean a missed notice deadline.
• The amount at stake is significant. According to the National Association of Surety Bond Producers, the average payment bond claim exceeds $150,000 (NASBP, 2023). Counsel ensures the claim is properly documented and valued.
• The surety denies your claim. Sureties are not neutral parties — they represent the prime contractor's bonding interest. Denial is not the end, but it does mean the dispute is heading toward litigation.
• The one-year deadline is approaching. If you are within 60 days of the statute of limitations, do not try to handle the filing yourself. Federal court complaints have specific requirements, and an error can be fatal to the case.

Construction attorneys who specialize in Miller Act claims typically work on a contingency or hybrid fee basis, meaning the cost barrier to hiring one is often lower than expected.

Protecting Cash Flow Before It Gets to a Claim

Filing a Miller Act claim is a remedy, not a prevention tool. The process takes months — sometimes over a year — and the outcome is never guaranteed. For subcontractors and suppliers on government projects, the smarter strategy is protecting cash flow upstream so that a bond claim never becomes necessary.

Understanding government vendor payment terms before you bid is a start. Knowing your rights under the Prompt Payment Act — which requires federal agencies to pay prime contractors within specific windows — helps you spot problems early.

Some vendors working with government agencies use early payment programs to close cash flow gaps without taking on debt. Companies like Lunch purchase approved invoices at a flat fee, paying vendors in days instead of months. This type of arrangement — where the financing is tied to an approved receivable rather than a loan — can keep a subcontractor's operations funded while longer payment disputes work through the system.

For a broader look at every financing option available to government contractors, including how they compare in cost, speed, and risk, that guide breaks down the full landscape.

Frequently Asked Questions

Can I file a Miller Act claim on a project under $100,000?

No. The Miller Act only requires payment bonds on federal construction contracts exceeding $100,000. For contracts between $35,000 and $100,000, the contracting officer has discretion on whether to require a bond. Below $35,000, payment bonds are generally not required. If no bond exists, you have no bond claim — though other remedies (such as direct negotiation or the Contract Disputes Act) may apply.

Does the 90-day notice apply to first-tier subcontractors?

No. The 90-day written notice requirement applies only to second-tier claimants — those who do not have a direct contract with the prime contractor. First-tier subcontractors and direct suppliers to the prime can file a claim or lawsuit without sending preliminary notice. However, sending a written demand letter is still good practice, even if not legally required.

What if I supplied both labor and materials — when does the clock start?

The 90-day notice period and the one-year statute of limitations both begin on the last date you furnished any labor or materials on the project. If you made your final material delivery on March 1 but performed warranty-related labor on April 10, the clock starts on April 10. Be precise about this date — disputes over it are common, and getting it wrong can cost you the claim.

Does the Miller Act apply to state or local government projects?

No. The Miller Act applies exclusively to federal government construction projects. Most states have equivalent statutes — often called "Little Miller Acts" — that impose bond requirements on state-funded construction. Local government projects may fall under state bonding laws or municipal ordinances. If you are working on a city or municipal project, check your state's specific requirements.

Can I recover attorney's fees in a Miller Act claim?

Generally, no. The Miller Act does not provide for recovery of attorney's fees. Each party bears its own legal costs unless the bond or contract contains a fee-shifting provision, which is uncommon. Some courts have awarded fees in cases of bad faith, but this is the exception rather than the rule. Factor legal costs into your decision when evaluating whether to pursue a claim through litigation.