The first thing to determine is whether you're in the class of parties entitled to file a Miller Act Claim. Prime contractors (those who contract with the owner) cannot file Miller Act Claims, but are limited to an action against the public entity. First Tier Subcontractors and Material Suppliers, as well as Second Tier Subcontractors and Material Suppliers all have rights to bring claims under the Miller Act. Those lower than the 2nd tier, do not. For a chart of who is and who is not entitled to file a Miller Act claim, see the chart at this link: http://bit.ly/a7pw7H
Send Miller Act Notice to Prime Contractor
If you are a first tier sub or supplier, you need not send the Miller Act Notice, and you can skip to Step 4 (it is a good practice to send the notice anyway). If you are a second tier sub or supplier, however, within 90 days from last furnishing labor and/or materials, you must deliver a Miller Act Notice to the prime contractor. The Notice must state with substantial accuracy the (i) amount claimed; and (ii) the name of the party whom the claimant contracted with. It must be served on the prime contractor as per statute. Mailing via certified mail with return receipt requested will satisfy the statute.
Optional: Send Notice to the Surety
While not required as per the terms of 40 USC A?3133, it is a good practice to send a Miller Act Notice to the surety providing the bond. If you don't know who the surety is, you have a right to request it from the governing authority in charge of the project in writing.
File Suit Against the Bond Within 1 Year
All claimants must bring suit against the payment bond within one year from when they last furnished labor and/or materials to the project. The action must be brought in the U.S. District Court (federal court) in the district where the contract was performed. The suit must be brought in the claimant's name, as well as in the name of the United States.
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