How Do You Make a Miller Act Payment Bond Claim?

On private work, an unpaid sub's main protection is often a mechanics lien. On federal work, the statute's protection is a payment bond. Under 40 U.S.C. § 3131, before a contract of more than $100,000 is awarded for the construction, alteration or repair of a public building or public work of the Federal Government, the contractor must furnish a performance bond and a payment bond, the payment bond for the protection of all persons supplying labor and material in carrying out the work (40 U.S.C. § 3131). The Federal Acquisition Regulation applies the requirement to construction contracts exceeding $150,000, and requires other payment protections for contracts above $35,000 up to $150,000 (FAR 28.102-1).

You can get a copy of the bond. Section 3133(a) says the agency shall furnish a certified copy of the payment bond and the contract to anyone who submits an affidavit that they supplied labor or material for the work and have not been paid, or that they are being sued on the bond; the applicant pays the agency's fee (40 U.S.C. § 3133). The copy names the surety you will be claiming against.

The statute names these two groups. If your contract is with a supplier to a sub, or a sub further down, ask a lawyer whether you are covered before you rely on the bond. The second-tier notice must state (the codified text says "the action"; it is read as the notice) with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or for whom the labor was done. It must be served by any means that provides written, third-party verification of delivery to the contractor at any place it maintains an office or conducts business or at its residence, or in any manner in which the U.S. marshal of the district may serve summons (§ 3133(b)(2)).

The suit must be brought in the name of the United States for the use of the person bringing it, in the U.S. District Court for any district in which the contract was to be performed and executed, regardless of the amount in controversy (§ 3133(b)(3)). The Government is not liable for the costs of the suit (§ 3133(b)(5)).

• Keep the records that prove the date: daily logs, delivery tickets, time sheets. The statute runs from the day you did or performed the last of the labor or furnished the last of the material for which the claim is made.
• Count the days yourself, and send notice weeks early. The statute's text has no rule moving a deadline that falls on a weekend or holiday.
• Send notice by a carrier that gives a signed delivery receipt, to the prime's office, and keep the receipt.
• Keep billing and asking for payment while you wait; the bond is a backstop, not a reason to stop collecting.

The facts are fictional. "Kestrel Supply" sells $36,400.00 of light fixtures to "Brightline Electric", the electrical sub on a federal courthouse renovation. Kestrel has no contract with the prime contractor. Its last delivery for the job is on Friday, March 13, 2026, and Brightline doesn't pay.

The count: March 14 to 31 is 18 days, April adds 30 (48), May adds 31 (79), and June 1 to 11 adds 11, so June 11 is day 90. One year after March 13, 2026 is March 13, 2027, a Saturday; because the statute's text doesn't move it, Kestrel plans to file by Friday, March 12.

A GC or sub may ask you to waive your bond rights in a subcontract or purchase order. Under § 3133(c), a waiver of the right to bring a civil action on a payment bond is void unless it is in writing, signed by the person whose right is waived, and executed after that person has furnished labor or material for use in the performance of the contract (40 U.S.C. § 3133). Read any lien or bond waiver that comes with a payment; the difference between conditional and unconditional waivers is in conditional vs unconditional lien waivers.

Payment deadlines on federal work are in prompt payment acts, how a pay-if-paid clause interacts with your rights is in pay-if-paid vs pay-when-paid, and habits that keep you from needing the bond are in how a subcontractor can get paid faster and the subcontractor's guide.

A Miller Act claim runs on two dates counted from your last labor or material: 90 days for a second-tier claimant's written notice to the prime, and one year for every claimant's suit in federal district court.

Write the date down on the day it happens, get a copy of the bond early, and send notice weeks before day 90 with proof of delivery.

Join the waitlist as a subcontractor

1. 40 U.S.C. § 3131, Bonds of contractors of public buildings or works — U.S. Government Publishing Office (govinfo), United States Code, 2023 edition. Read October 22, 2026.
2. 40 U.S.C. § 3133, Rights of persons furnishing labor or material — U.S. Government Publishing Office (govinfo), United States Code, 2023 edition. Read October 22, 2026.
3. FAR 28.102-1, General (bonds for construction contracts) — Acquisition.gov, U.S. General Services Administration. Read October 22, 2026.