Payment bonds protect subcontractors, sub-subcontractors, and others who provide labor and materials for a public project. Subcontractors and others who want to make a payment bond claim must follow the legally-required steps. The required steps depend on the type of project (e.g., federal and state government projects) and the role of the company making the claim (e.g., subcontractor, sub-subcontractor, supplier to sub-subcontractor, etc.). If you do not follow the steps by the required deadlines, you may lose your payment bond rights.

This post provides a high-level overview of the steps that must be taken to perfect a payment bond claim on most Florida state and federal public projects.

Most Florida state public projects (Fla. Stat. § 255.05; Florida Little Miller Act)

  1. Initial notice: A payment bond claimant who does not have a contract or direct agreement with the prime contractor must serve the prime contractor with written notice that the claimant intends to look to the bond for protection. The initial notice must be served no later than 45 days after starting to furnish labor, materials, or supplies for the work at the project.
  2. Notice of nonpayment: If a claimant has not received payment for its work, the claimant must serve a notice of nonpayment on the prime contractor and the surety. But the notice of nonpayment cannot be served earlier than 45 days after first starting to furnish labor, materials, or materials, and the notice cannot be served later than 90 days after final furnishing of labor, materials, or supplies. A form notice of nonpayment can be found here.
  3. File a lawsuit: Generally, a lawsuit must be filed against the prime contractor or the surety within one year after the performance of the labor or completion of delivery of the materials or supplies.

Federal government projects (28 U.S.C. § 3133; Miller Act)

  1. Notice of nonpayment: A payment bond claimant who does not have a contract or direct agreement with the prime contractor must serve the prime contractor with written notice of nonpayment within 90 days from the date on which the person did or performed the last of the labor or furnished or supplied the last of the material for which the claim is made.
  2. File a lawsuit: An action on the payment bond must be filed no later than one year after the day on which the last of the labor was performed or material was supplied by the person bringing the action.

Florida Department of Transportation Projects (Fla. Stat. § 337.18)

  1. Initial notice: A claimant who does not have a contractual relationship with the prime contractor must serve the prime contractor with written notice that the claimant intends to look to the bond for protection.
  2. Notice of nonpayment: If a claimant does not receive payment and does not have a contractual relationship with the prime contractor, the claimant must serve a notice of nonpayment on the prime contractor and the surety. The notice of nonpayment cannot be served any earlier than 45 days after first furnishing labor, services, or materials, and the notice must be served no later than 90 days after the final furnishing of labor, services, or materials.
  3. File a lawsuit: A claimant on a payment bond for a project owned by the FDOT must file a lawsuit against the prime contractor or surety no later than 365 days after final acceptance of the contract work by FDOT.

The above checklists provide a very brief outline of what you must do to make a payment bond claim. I wanted to keep this post as short as possible, so you should know that there are many details that have not been addressed. If you are having difficulty getting paid on a public job, experienced construction counsel should always be consulted to preserve your rights, including payment bond rights. Failure to strictly comply with all statutory requirements may result in the waiver of your rights under an otherwise applicable payment bond. If you prevail on a payment bond claim, you may be entitled to any money you spend to hire an attorney.

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