Miller Act

Federal Miller Act Lawyers

The Federal Miller Act is designed to protect subcontractors working in public works construction contracts. Our Colorado Federal Miller Act lawyers assist contractors or sureties with payment and performance bond claims. If you are a construction contractor in Denver or Colorado, you would need a Miller Act attorney that understands construction projects, government contracts and contract law. Our Miller Act lawyers are experienced in Federal Miller Act and can provide general counsel on your behalf.

As Miller Act lawyers in Denver, Watson & Associates, LLC can represent construction contractors on projects for the state government or government contractors working on federal projects. When you are having payment or performance claims governed by the Act, our lawyers are available for immediate representation. Fill out a confidential online inquiry.

Miller Act Bond Overview

Miller Act limitations: Most Colorado Federal surety attorneys and Construction lawyers who handle Miller Act bond cases know that the Miller Act Bonds must be in the amount of the contract unless the Contracting Officer (CO) determines in writing that such requirement may be less but not less than the amount of the performance bond. Colorado Surety and Miller Act lawyers should be well aware that the Miller Act bonds are not traditional insurance but a guaranty of payment for timely and satisfactory work only.

There are several important elements of the Miller Act (40 U.S.C. §3131 et seq.) of which all contractors, subcontractors and sureties should be aware. For a more in depth analysis read construction surety bonds in plain English

The first element deals with the contracts on which a payment bond is required. In 2000, the Miller Act was amended to increase the required penal sum for a payment bond provided for a federal project. Previously, the penal sum of the payment bond was capped at $2.5 million, regardless of the amount of the subcontract. After the amendment, the cap on the penal sum was eliminated. As such, the payment bond must now equal the full dollar amount of the work performed under the subcontract. While a contracting officer may require a payment bond with a penal sum in excess of the subcontract amount, in no case shall the penal sum of the payment bond be less than the amount of the penal sum of the performance bond. Thus, a subcontractor will now be protected for the full value of the work performed on the project.

Second, after the 2000 amendment, the Miller Act now prohibits a prime contractor from requiring its subcontractor to waive its payment bond rights prior to commencing work on the project. Previously, a subcontractor could be required by the prime contractor to waive its Miller Act rights.

Finally, the Miller Act now permits a subcontractor to provide notice of its payment bond claim by any means of notification that can be verified by a third party. Before the 2000 amendment, a notice of bond claim could be provided only by registered mail. Now, notice by a private delivery service that provides a receipt, such as Federal Express, and notice by e-mail, if delivery can be verified, will be permitted as an acceptable means of providing notification. Please note that the determination of whether a method of providing notice is acceptable hinges upon whether a third party can verify the delivery of notice.

40 U.S.C. Section 3133(b), formerly 40 U.S.C. Section 270(b) states that persons supplying labor and materials on a government construction project site are protected under a federal Miller Act surety bond in the event of a default. The Miller Act surety bond does not cover third-tier subcontractors and suppliers.

One federal court has ruled that a paid-if paid clause is no defense to a Miller Act Claim (see link), other later decisions have strictly applied that economic loss rule to claims in federal court. These various rulings are reasons why you should have an effective Miller Act lawyer at your side.

Miller Act Surety

Miller Act Surety Defense: If you are involved or are contemplating bidding on a federal construction project in Colorado, your construction and Miller Act Attorney should advise you that there are two types of sureties. (a) Individual Surety and (b) Corporate Sureties. There is also the type of surety prescribed by FAR 28.201 and 28.204. The Contracting Officer is authorized to accept individual sureties that can produce certain wealth and assets that adequately protect the government's financial interests.

If you are faced with a claim from a subcontractor or there is a dispute for nonpayment under a Miller Act surety bond, then contact us and let one of our Colorado Miller Act surety law attorneys handle your case. We ensure that we have qualified experts that can articulate damages and that can persuasively compute any damages or defense to your surety claim.

Miller Act Payment Issues

Some Miller Act and surety defense lawyers must understand the difference between the Colorado "Little Miller Act" and the Federal Miller Act. Reading the two closely, one will find that the Colorado Act has some unique differences. As a person seeks to file a claim under either Act, you should seek a qualified Miller Act and Surety defense attorney that understands the jurisdiction of the State of Colorado for either claim. Our trained attorneys can assist you in this area.

Payment under the Miller Act only applies to work that is satisfactorily completed. This is important when a subcontractor files a claim for non-payment. Another important factor is that the Prompt Payment Act is not held against a surety if the amount of payment is in dispute. If you are a Miller Act Surety and need immediate defense from a skillful law firm, then Contact one of our construction attorneys today for immediate help at (720) 941-7200

Additional Miller Act Resources

The law on payment bonds

Colorado Construction Laws

Standard forms and contracts

Opinions for the 10th Circuit Court of Appeals