Using the Miller Acts
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The document discusses the Miller Acts, which aim to reduce credit risk for parties working on public construction projects. It provides an overview of requirements for pre-claim notices, bond claims, notice deadlines, and exemptions under the federal Miller Act and various state-level Miller Acts, including those of Washington and Oregon. Key details covered include notice recipients, claim contents, filing locations and deadlines, and which parties are eligible to recover under payment bonds.
Using the Miller Acts
- 1. Using the Miller and Little Miller Acts to Reduce Credit Risk June 18, 2009 NACM – Presented by Sussman Shank, LLP SUSSMAN SHANK LLP | (503) 227-1111 | www.sussmanshank.com | © 2009
- 2. Washington Little Miller Act Highlights Pre-Claim Notice Every Person Or Entity Furnishing Supplies Or Materials Must Provide Written Notice To The General Contractor Not Later Than 10 Days After The Date Of First Delivery Stating: Name Of Person/Entity Providing Supplies Or Materials Name Of Person/Entity To Whom Such Supplies Or Materials Were/Will Be Provided That The General Contractor And His Bond Will Be Held For Payment Of The Same Persons Providing Only Labor Need Not Provide This Notice If Required And Not Done, No Bond Claim! Send By Certified Mail Or Registered Mail © SUSSMAN SHANK LLP | www.sussmanshank.com
- 3. Washington Little Miller Act Highlights Bond Claim Within 30 Days Of Acceptance By Affirmative Action Of The Public Body, Claimant Shall File Its Claim With The Public Body Its Claim "Acceptance" Formal Act Defined By Statute Caution: Acceptance Can Be Partial (i.e. Phase 1) Substance Of Claim Is Statutory, But Highlights Are: Name Of Public Body That Let The Contract Name Of Claimant Amount Of Claim (Itemize) Surety Name And Bond Number Name Of Contractor Who Obtained Bond Brief Description Of Work Performed © SUSSMAN SHANK LLP | www.sussmanshank.com
- 4. Washington Little Miller Act Highlights Bond Claim (Cont.) Notice Must Be Signed By Claimant Attorneys Fees/Costs If Claimant Waits 31 Days From The Filing Of The Claim Before Filing Suit And Prevails In The Lawsuit, It Is Entitled To Reasonable Attorney Fees (Reciprocal) Other Conditions In Bond - Look At Bond To Confirm © SUSSMAN SHANK LLP | www.sussmanshank.com
- 5. Oregon’s Little Miller Act © SUSSMAN SHANK LLP | www.sussmanshank.com
- 6. Oregon’s Little Miller Act Exempt Projects Emergency Situations Contract < $50,000 Not Reasonably Foreseeable Creates Substantial Risk Prompt Contract To Remedy Agency Cost Estimate Exceeded All Reasonable Bidders Contracts Between Certain Agencies Oregon - Oregon Oregon – Federal Nonprofits - Disabled Employment © SUSSMAN SHANK LLP | www.sussmanshank.com
- 7. Oregon’s Little Miller Act ORS 279 c.600 Et. Seq. Applies To All Non-Federal, Public Improvement Construction Projects In Oregon State Agencies - ODOT School Districts Cities Mixed Funding Wind Farms Low Income Housing © SUSSMAN SHANK LLP | www.sussmanshank.com
- 8. Oregon’s Little Miller Act Requires Prime Contractor To Post Performance Bond Payment Bond Equal To The Amount Of The Prime Contract Protects Most Persons Claiming To Have Supplied Labor, Materials, Or Equipment Notice of Claim To The Prime Contractor Public Body Or Agency Surety © SUSSMAN SHANK LLP | www.sussmanshank.com
- 9. Oregon’s Little Miller Act Exempt Projects (Cont.) Contracts For Certain Products, Services or Suppliers Project < $50,000 VA Recycled Materials Certain Review Boards Classes Of Contracts Procedures To Establish Notice And Hearing © SUSSMAN SHANK LLP | www.sussmanshank.com
- 10. Oregon’s Little Miller Act Deadline To File Lawsuit No Later Than 2 Years After Last Provided Labor Or Materials. Not 2 Years After Notice Of Claim Project Location Or Federal Court Attorney Fees May Be Recoverable Surety - 6 Months Public Body And The Officer Authorizing The Contract May Be Personally Liable © SUSSMAN SHANK LLP | www.sussmanshank.com
- 11. Oregon’s Little Miller Act Notice of Little Miller Act Bond Claim (Cont.) Contents ORS 279c.605 OAR 137-040-0045 Your Address Title Of Progress Name Of The Bonding Company When No Later Than 120 Days After The Last Day Of Labor Or Furnished Materials Work May Extend The 120 Day Notice Period Corrective Or Replacement Minor Or Trifling Sent By Registered Or Certified Mail Or Hand Delivered © SUSSMAN SHANK LLP | www.sussmanshank.com
- 12. Federal Miller Act SUSSMAN SHANK LLP | (503) 227-1111 | www.sussmanshank.com | © 2009
- 13. Federal Miller Act 40 USC §270 Cannot Lien Property Owned By The Federal Government Applies To Contracts Over $100,000 A Prime Contractor Who Has Contract To Perform Construction Or Alteration Or Repair, On A Federal Project Or -Property Must Post A Performance Bond Must Post A Payment Bond © SUSSMAN SHANK LLP | www.sussmanshank.com
- 14. Federal Miller Act Who Is Not Entitled To File A Claim Supplier To A First Tier Supplier Subcontractor To A First Tier Supplier Third Tier Supplier Third Tier Subcontractor © SUSSMAN SHANK LLP | www.sussmanshank.com
- 15. Federal Miller Act The Payment Bond Protects A Limited Number Of Persons Who Have A Written Or Oral Contract To Supply Labor Or Provide Materials In The Prosecution Of The Work Set Forth In The Public Contract Who May File A Claim First Tier Subcontractors First Tier Suppliers Who Contract Directly With The Prime Contractor Second Tier Subcontractors And Suppliers Contract Directly With A First Tier Subcontractor © SUSSMAN SHANK LLP | www.sussmanshank.com
- 16. Federal Miller Act Notice Of A Claim First Tier Subcontractor Or Supplier Is Not Required To Give Notice All Others Must Give Written Notice Of A Claim © SUSSMAN SHANK LLP | www.sussmanshank.com
- 17. Federal Miller Act Hierarchy © SUSSMAN SHANK LLP | www.sussmanshank.com
- 18. Federal Miller Act Where File Lawsuit Federal District Court Where The Contract Was To Be Performed Or Executed Deadline To File Lawsuit One Year After The Day Material Was Last Supplied Or Labor Or Services Were Last Performed A Lawsuit Cannot Be Filed Until 90 Days After The Last Date Labor Or Materials Were Provided Corrective Or Repair Work Does Not Extend The Filing Deadline Recoverable Damages And Losses Delay Damages For The Increased Cost Of Labor Or Materials Lost Profits Resulting From Delay Are Not Recoverable Federal Officials Are Not Personally Liable © SUSSMAN SHANK LLP | www.sussmanshank.com
- 19. Federal Miller Act Who To The Prime Contractor How Via Registered Mail, Postage Prepaid When Within 90 Days From The Date Last Performed Labor Or Furnished Material Or Services The Notice Must Be Received Within The 90-Day Period What Must Accurately State The Following: The Amount Claimed The Name Of The Party To Whom The Materials Were Furnished Or For Whom The Labor Or Services Were Performed © SUSSMAN SHANK LLP | www.sussmanshank.com
- 20. Federal Miller Act SUSSMAN SHANK LLP | (503) 227-1111 | www.sussmanshank.com | © 2009