The Miller Act: How Federal Contractors Get Paid When Payment Stops
If you’re working on a federal construction project and haven’t been paid, you cannot file a mechanics lien.
But you are not without protection.
The Miller Act gives subcontractors and suppliers the right to file a claim against a payment bond on most federal construction projects. When used correctly, it can be a powerful collection tool. When handled incorrectly, you can permanently lose your rights. Here’s what you need to know.
What Is the Miller Act?
The Miller Act (40 U.S.C. §§ 3131–3134) requires prime contractors on most federal construction projects over $150,000 to post:
- A Payment Bond (protects subcontractors and suppliers)
Because federal property cannot be liened, the payment bond replaces traditional lien rights.
If you qualify, you may have the right to sue on that bond in federal court.
Who Has Miller Act Claim Rights?
You might have rights if you are:
- A first-tier subcontractor (contracted directly with the prime contractor);
- A second-tier subcontractor (contracted with a first-tier subcontractor); or,
- A material supplier to the prime or first-tier subcontractor.
You do not have rights if:
- You are a third-tier (or lower) subcontractor;
- You are a third-tier (or lower) material supplier;
- You are a second-tier material supplier and your contract was with a first-tier material supplier; or,
- You are a design professional.
Determining your tier correctly is critical. Misunderstanding your status can cost you your claim.
The 90-Day Notice Rule (Critical Deadline)
If you are not contracted directly with the prime contractor, you must:
Send written notice within 90 days of your last furnishing of labor or materials.
Miss this deadline and your claim can be barred — even if you are clearly owed money.
Key points:
- The notice must be in writing.
- It must state the amount owed.
- It must state the name of the party you contracted with.
- It must be sent to the prime contractor.
There is no flexibility on this timeline.
Pro Tip: If you contracted directly with the prime (or general) contractor, you do not need to send a notice. However, sending one can help you get paid without needing to file suit.
The One-Year Filing Deadline
All Miller Act lawsuits must be filed:
Within one year of your last day of work or last material delivery.
You cannot extend this by contract.
You cannot waive it (unless special conditions are met – see 40 U.S.C. §3133(c)
You cannot revive it once it expires.
The lawsuit must be filed in federal court where the project is located.
Common Mistakes That Kill Miller Act Claims
Contractors lose valid claims every year because of preventable errors:
- Waiting too long to request a copy of the payment bond
- Miscalculating the last date of work
- Sending informal payment emails instead of proper notice
- Filing in state court instead of federal court
- Assuming lien deadlines apply instead of bond deadlines
Bond claims are technical. Courts require strict compliance.
Why Acting Early Improves Leverage
The Miller Act is not just about litigation.
Sending timely notice and asserting bond rights early often:
- Gets the surety involved
- Pressures the prime contractor
- Increases negotiation leverage
- Leads to faster resolution without a lawsuit
Delaying reduces leverage.
Miller Act vs. Mechanics Liens
| Private Projects | Federal Projects |
| File mechanics lien | File payment bond claim |
| State court enforcement | Federal court lawsuit |
| Property secures payment | Payment bond secures payment |
If you treat a federal project like a private job, you risk losing your protection.
What Documentation Strengthens Your Claim?
While not required, strong Miller Act claims typically include:
- Executed subcontracts or purchase orders
- Change orders
- Invoices
- Pay applications
- Proof of delivery of materials
- Project correspondence
- Evidence of last date of work
Organizing these early makes enforcement significantly easier.
Pro Tip: You aren’t required to submit these documents with your claim. But, doing so can improve your chances of getting paid without resorting to litigation.
When to Involve a Construction Attorney
You should consider legal guidance if:
- You are approaching the 90-day notice deadline*
- The project is nearly complete and payment is unresolved
- The prime contractor disputes your balance
- The surety requests documentation
- You are unsure of your tier status
Federal bond claims are not the place for guesswork.
*It’s best to contact an attorney as soon as a payment issue arises. If you wait until the last minute, you deprive your attorney of time to do their best job for you.
Final Takeaway for Contractors
On federal projects, your ability to get paid depends on one thing:
Strict compliance with the Miller Act.
Deadlines are unforgiving.
Documentation matters.
Procedure matters.
But when handled properly, a Miller Act claim can be one of the strongest payment enforcement tools available to contractors.
Need Help Evaluating Your Miller Act Rights?
If you’re working on a federal project and payment has stalled, reviewing your bond rights early can prevent costly mistakes.
Before the 90-day window closes, make sure you understand:
- Whether you qualify
- What deadline applies
- What notice must be sent
- When a lawsuit must be filed
Because once the deadline passes, your leverage may be gone.
The best thing you can do? Hire an attorney to prepare your Miller Act Claim. Errors in your claim can cost you in litigation.
Let us handle your Miller Act Claims for you. Use our online calendar to schedule your free phone consult, 24/7.
