The issue of whether or not attorney fees can be recovered under the Miller Act is a topic routinely discussed by courts, and by us on the Lien blog, because the law on this issue is complex, confusing, and unclear. One of the trickier aspects of determining whether, or under what provision, attorneys fees may be recovered is relationship between federal law and state law. A relatively recent Georgia case provides some insight into this issue.

Background on the Georgia Case

In U.S. ex rel. New Millenium Building Systems v. Paul S. Akins Company the U.S. District Court for the Middle District of Georgia examined a Miller Act claim in which the plaintiff sought attorneys fees.

The construction project underlying the case was the construction of a dining hall at Fort Benning. The prime contractor on the project, Paul S. Akins Company, hired subcontractor Steel-Plus, LLC (“Steel-Plus”) who, in turn, hired the plaintiff, New Millennium Building Systems, LLC (“New Millenium”) as a supplier.  This suit arose after New Millennium alleged non-payment of certain invoices submitted to Steel-Plus. In addition to payment of its unpaid invoices (through a bond claim under the Miller Act), New Millennium also requested attorney fees under Georgia state law.

Relationship Between State and Federal Law

In the U.S., there are multiple bodies of law governing and regulating conduct. These laws range from municipal ordinances all the way up to the “supreme law of the land”, the Constitution. Generally speaking, these different bodies of law are concerned with vastly different aspects of legal regulation.

When federal and state law conflict, which controls?

In this regard, your intuition is likely correct. While the relationship between state and federal law is very complex, for our purposes it will suffice to know that generally, when a conflict exists between state and federal law in an area normally under the purview of federal law, federal law triumphs. This is known as federal preemption of state law. It is also worth noting that, even in a general area where state law and federal law can coexist, the specific law giving rise to a plaintiff’s claims will be the controlling law for that action.

New Millennium and Attorneys’ Fees Under Miller Act Bond Claims

The remedies of the Miller Act, as a federal statute, are clearly governed by federal law – and therefore, “the substance of the rights created, and the scope of the remedy” thereunder is determined by federal law. This includes the decision of whether an award of attorney fees is allowed.

The general rule in federal law is that attorney fees are generally not available unless allowed specifically by statute or a contract provision, or due to the bad faith or otherwise vexatious or oppressive conduct of a party. It is unfortunate for a Miller Act claimant, then, that the Miller Act does not specifically provide for an award of attorney fees to a prevailing party. As noted in an earlier post, attorney fees may be recoverable in a Miller Act suit if an express contractual provision so holds.

A subcontractor’s exclusive remedy against a surety (recovery under the Miller Act bond) on a federal construction project is through the Miller Act, so state law allowing for an award of attorney fees will not apply, even if, as in this case, the state law does not explicitly limit its application to bonds created under state law.

This does not, however, necessarily mean that claimants may never recover attorney fees when unpaid for labor and/or materials furnished to a federal project, even if the contract doesn’t expressly provide that an award of attorney fees is warranted. While an award of attorney fees is not appropriate for a claim made against a bond solely pursuant to the Miller Act, absent a contractual provision providing for them, there may potentially be some wiggle room here for certain claimants. The Fifth Circuit has held that the Miller Act does not preclude a federal court from exercising supplemental jurisdiction over state law claims against a contractor. U.S. ex rel. Cal’s A/C & Elec. v. Famous Constr. Corp., 220 F.3d 326, (5th Cir. 2000). In such a case, an award of attorney fees against a contractor may be appropriate, depending on the particular state law at issue. This also holds true for federal courts exercising diversity jurisdiction over a case consolidated with a Miller Act claim. The distinction, then, is that attorney fees are not available when the underlying claim arises solely from the Miller Act, i.e. claims against the bond; at least in the event that there are no specific contractual provisions to the contrary. If the underlying claim itself does not arise from the Miller Act, but rather through state law, a federal court may be able to exercise supplemental jurisdiction to decide the matter, and an award of attorneys’ fees may be appropriate.

The Miller Act and Attorney Fees

So, what is the end result of all this? Can a claim for attorney fees be successful under the Miller Act? As I’ve said too many times, the answer is “Maybe.”

Since the Miller Act does not expressly provide for attorney fees, the only way such an award would be appropriate in a suit arising under the Miller Act is if a contract clause provides for their award. While there is some disagreement in the courts, the modern trend is that attorney fees are awarded when the claimant’s contract contains an attorney-fee clause. This reasoning seems to be based on the previous language of the Miller Act, which allowed claims for “sums justly due.”  That phrase has been interpreted as allowing the recovery of any amount owed to the claimant under the claimant’s contract. While the “sums justly due” language has been removed from the text of the Miller Act, courts still use that reasoning to award attorneys’ fees to claimants whose contracts include an attorneys’ fees clause.

In New Millennium, it is unclear if New Millennium’s contract included such a clause. Presumably, despite the court’s relatively cool disposition toward attorney fees in this context, attorney fees may be allowed. In the absence of such a provision, however, New Millennium would be unable to recover attorney fees.

Written by Nate Budde See original article at Miller Act and Attorney Fees: Recent Georgia Case Provides Insight Originally posted on the LIEN

Appealing Miller Act Claims

We here at the Lien blog devote a lot of our time to writing about mechanics liens, and all the issues and laws surrounding them in each and every state.  Another major area of interest, however, is the Miller Act, a piece of federal legislation which permits unpaid subcontractors and material suppliers on federal government construction projects to sue the prime contractor’s surety for payment.  Similar to mechanics lien requirements, the procedures that must be followed for a valid claim under the Miller Act are strict.  A recent case out of the U.S. Court of Appeals for the Eleventh Circuit affirmed that claimants under the Miller Act must ensure that they are following procedural requirements closely.

What are the Miller Act Claim Procedural Laws?

When filing a Miller Act bond claim, first- and second-tier subcontractors and material suppliers must make sure that they strictly follow the letter of the law.

First, parties that have not directly contracted with the prime contractor, such as second-tier subcontractors and material suppliers to first-tier subcontractors must file notice of a Miller Act Claim within 90 days of last furnishing materials or labor to the federal project.  The Miller Act describes exactly what this notice must contain.

Second, all parties must initiate suit to enforce their Miller Act claim within 1 year of last furnishing materials or labor to the project.

The procedural law that we are dealing with in this post is actually the law surrounding appeals.  Specifically, when the federal government is a party in an appeal, a party has 60 days to appeal a district court’s ruling.  However, when the federal government is not a party in an appellate proceeding, a party only has 30 days to appeal.  This federal rule of appellate procedure clearly applies to Miller Act claims.  

How Do Miller Act Appeals Work?

Since Miller Act claims are on federal projects but suits under the Act must be filed against the surety, it is easy to see why a party might be confused as to which limitation – the 30-day limit or the 60-day limit – applies.  However, making the correct decision is imperative if a party wishes to proceed with its appeal.

A recent case heard by the Eleventh Circuit, U.S. ex rel. Postel Erection Group, L.L.C. v. Travelers Casualty and Surety Company of America, clarifies which limitation applies.  Although its reasoning is complicated, the ruling has important consequences for parties appealing trial court orders dismissing their Miller Act claims.

Under the Act, prime contractors must post two bonds.  The first bond protects the federal government from failure to perform.  This bond is called a performance bond.  The second bond protects the subcontractor, and is called a payment bond.  Unpaid subcontractors or material suppliers, therefore, file a claim payment, bond.

Furthermore, looking carefully at how the parties are named in this case, you’ll notice that the plaintiff in the case is “U.S. ex rel. Postel Erection Group, L.L.C.”  The Latin phrase “ex rel.” can be translated of “in the name of” or “on behalf of.” The Miller Act itself requires that parties bring suit “in the name of the United States.”  Hence, the “ex rel.” exists in the plaintiff’s name in this case.

If you’re still able to follow all this legalese, it would appear that since “U.S.” appears in the very title of the suit, as plaintiff, the United States is a party to the lawsuit and thus the 60-day requirement on filing appeals applied.  The plaintiff in this case, Postel Erection, thought as much, since it waited 55 days to file its appeal.

In its reply, the surety argued that the 30-day limit, not the 60-day limit applied, and since Postel had missed the 30-day limit, the court should dismiss its appeal.

In its opinion, the Eleventh Circuit agreed with the surety and held that the 30-day limit applied.  The court distinguished between “nominal parties” and “real parties” in its reasoning.  In Miller Act claims, the U.S. is merely a nominal party since it is named as a formality only.  Furthermore, United States did not formally intervene in the case nor ever show an “active” interest in the litigation.  Since the U.S.’s involvement in this case was “in name only,” the court held that it was a nominal party.  Thus, due to the fact that the 60-day limit only applies when the United States has real interest in the litigation, the 60-day limit did not apply and instead the 30-day limit did.  Because Postel waited 55 days to file its appeal when it only had 30 days by law, the court dismissed Postel’s appeal.

Take-Aways from Postel Erection

This case is somewhat complicated for people who are not trained in appellate procedure.  So what should non-attorneys take away from this case?

The major lesson unpaid subcontractors and material suppliers can learn from Postel is that unless the United States has intervened or taken an active interest in the case, the subcontractor or supplier only has 30 days to appeal.  As the court noted, “a party [such as the United States in a Miller Act claim] can be named in the caption of a complaint without necessarily becoming a party to the action.”

Thus, if the district court issues a ruling that an unpaid subcontractor or supplier doesn’t agree with, it should appeal within 30 days or potentially lose the right to appeal forever.

Written by Elliot Singer See original article at Miller Act Claims: 11th Circuit Dismisses Suit for Procedural Error Originally posted on the LIEN

The Lien Blog and Zlien website is packed with information about the US Miller Act and filing a claim for payment on a federal project. In fact, one of the most popular posts here on the Lien Blog is one related to the Miller Act and titled: “5 Things To Know About The Miller Act.”

Generally speaking, the Miller Act is the name of the statutes providing suppliers and contractors with lien rights whenever labor or materials are furnished to a federal project.  Here are some resources and free forms to help you better understand how the Miller Act can help your company get paid on a federal construction job.

Miller Act Resources, FAQsand Information

Zlien and the Lien Blog have assembled the web’s most comprehensive set of Miller Act resources.

The best place to start on the Lien Blog is with the “Miller Act” tag.  Clicking on this tag will filter and display all posts that relate to the Miller Act.  This makes the information on the blog digestable as it will go through the 800+ blog posts here and focus on the ones relative to the Miller Act only.

Zlien’s main website has great Miller Act resources as well. You can navigate to the general Miller Act center within Zlien by clicking here.  This page contains a graph showing you the notice and claim requirements, a copy of the act’s full-text, a chart explaining who does and who does not have lien rights, free forms and frequently asked questions about the legal remedy.

Free Miller Act Forms

There are really only two main Miller Act forms to be concerned with, and the first is an optional document required only if you don’t know who the surety s on the project.

Request for Miller Act Bond

If you find yourself needing to file a miller act claim then it will be very important to know who is holding the bond on the project.  Sending your bond claim to the surety is a highly recommended step, although not specifically required by the act.

If you don’t know who the bonding company is the Miller Act authorizes you to request a copy of the Miller Act bond (and even the prime contract).  This form makes this formal request.

   

Written by Scott Wolfe Jr See original article at Miller Act Resources and Free Miller Act Forms Originally posted on the LIEN

In the mechanics lien world, whether you can recover attorney fees as part of your claim is dictated by state statute. The statute either says you can or can’t. Determining if attorney fees are recoverable as part of a US Miller Act Claim  is a bit more complex, but the general answer is that the fees are recoverable if your contract for furnishing or performing labor entitles you to the fees.

A commonly cited case on the topic is United States of America, ex rel., Maddux Supply Company v. St. Paul Fire & Marine Insurance Company, et al, out of the United States Fourth Circuit Court of Appeals. The issue for decision was whether attorney fees were recoverable in a Miller Act action. The statute itself (40 USC §3131) makes no mention of attorney fee recovery, and the American Rule is that attorney fees are not recoverable unless the parties agree to it by contract or there is a statutory exception specifically providing for it.

In the case of the Miller Act, as above stated, the statute does not specifically provide for the recovery of attorney fees. Further, since the Miller Act claim is against parties whom the claimant did not contract with (i.e. the general contractor or surety), how can there be said to be a contractual agreement between those parties to allow for attorney fees?

The court in the above-cited Maddux Supply case explained:

The Miller Act does not, by its own terms, provide for attorney’s fees or interest. Several circuits have held, however, that interest and attorney’s fees are recoverable if they are par tof the contract between the [contracting parties]…The rationale for those decisions – that attorney’s fees and interest may be “sums justly due” under the Miller Act – is consistent with this court’s rulings…

While the Maddux Supply case is a 4th Circuit appeals decision the ruling is followed generally in every district. Make sure you have a great construction or supply contract, therefore, and then reap the benefits in a Miller Act action.

Written by Scott Wolfe Jr See original article at Attorney Fees Are Sometimes Recoverable In Miller Act Claims Originally posted on the LIEN

The Miller Act can be a little confusing as to who does and who does not have claim rights. While the statute is very broad about what type of work or materials are covered — nearly everything furnished to a federal construction project — it is strict about which tiers of project participants can be included.

We created a chart two years ago breaking this information down and I was inspired to update it.  It’s a lot prettier now.  Take a look:

You can embed this chart at your website or blog with the following code:

<a href=”http://www.zlien.com/miller-act-claims/” border=”0″><img src=”http://www.zlien.com/blog/wp-content/uploads/Miller-Act-Chart.png”></a>

Who Does Not Have Miller Act Rights?

Prime contractors – or those who contract directly with the federal entity commissioning work – do not have any rights under the US Miller Act. To the contrary, they have obligations, such as the obligation to post the payment bond that other parties can make claims against in the event they are unpaid.

Suppliers to Suppliers also do not have any claim rights under the Miller Act.  As we’ve discussed in the past, suppliers to suppliers rarely have a lien remedy of any kind available.

3rd tier subcontractors and those below are also excluded from Miller Act project.  This means that any subcontractors who contract with a sub-subcontractor, and anyone further below in the contracting chain, will not have the right to file a Miller Act Claim.

Who Does Have Miller Act Rights?

The answer here may be as simple as “everyone else.”  In the above provided chart you can see that there are some areas in white with the deep blue references.  These are the parties that have Miller Act rights.  They include:

Subcontractors and Material Suppliers Hired Directly By The Prime Contractor:  If you are furnishing labor or materials to a federal construction project and you were hired directly by the general contractor, you’re in good shape and have Miller Act rights.

Subcontractors Hired By Subcontractors:  Sub-subcontractors, or 2nd tier subcontractors, also have the right to file a Miller Act claim.

Material Suppliers furnishing to a 1st Tier Subcontractor:  Those furnishing materials to a first tier subcontractor have the right to file a Miller Act Claim.  Those furnishing to a sub-subcontractor, however, are not protected.

Written by Scott Wolfe Jr See original article at Chart: Who Does And Does Not Have Rights Under The Miller Act Originally posted on the LIEN

When you perform work on a private commercial or residential project you likely have a mechanics lien right. When you work on a state, county or municipal project, you likely have some type of state bond or state lien right available.  But what happens when you’re on a federal project?  Meet the US Miller Act.

When The US Miller Act Applies

The easy way to answer this heading’s question is to state that the US Miller Act applies when performing work or furnishing materials on a federal construction project. The more difficult questions are: (i) When is a project a “federal project,” and (ii) Are there any exceptions?

Determining your project’s type is very important and sometimes confusing.  We have a few articles here on the blog exploring this with one of my favorites being: Is my project state, federal, private or something different?   A chart that explains what your project probably is was published in the “What Type of Construction Project Is This?” post, another favorite.

Federal funding is used for a lot of construction projects across the country, but it is not the existence of federal funds that renders a project federal. Federal funds are provided to interstate road construction, for example, and this is always a state project. Further, all the FEMA money granted to the New Orleans area after Hurricane Katrina spawned a bunch of state and private projects.

A project is a federal project when work or materials are furnished to federally owned buildings or land. Military bases, United States courthouses, the US Capital Building, the Smithsonian Institute, Army Corps of Engineers projects on levees, etc. Whenever we post about federal projects we tag it with “Federal Projects,” click there to read more.

Now that you know what a federal project is let’s move to a wrinkle:  the miller act contains some exceptions.  Therefore, even when a federal construction project is involved there may be an exception that takes it outside the Miller Act rules. The most robust explanation of this is found in the “Waivers for Certain Contracts” section of the Miller Act, 40 USCS §3134.  It generally provides exceptions for:

• Contract to repair vessels, aircraft, munitions
• Materials or supplies to the Army, Navy, Air Force, or Coast Guard when there is a cost-type contract

The Lien / Bond Claim Rights Available To You On Federal Projects

Is The Miller Act Claim A Mechanics Lien?

No, the Miller Act Claim is not a mechanics lien.

How Is The Miller Act Claim Filed?

Filing a Miller Act Claim is fairly easy.  Zlien has made available a free Miller Act Claim form which you can download at that link. Properly fill out this form and mail a copy of it to the general contractor certified mail with return receipt requested, and keep proof of mailing and delivery.  That’s it – you’re done.

Now, there are some good practices to keep in mind.  It’s a good practice to file a copy with the public entity that commissioned the work and to send a copy to the surety.

You must send off your Miller Act Claim within 90 days of last furnishing labor or materials to the project, except that those who contracted directly with the general contractor can take longer:  up to 1 year from last furnishing.  Everyone who has a Miller Act Claim must file a lawsuit to enforce the same within 1 year from last furnishing.

For more information about your claims and rights under the Miller Act, check out Zlien’s Miller Act Frequently Asked Questions.

Written by Scott Wolfe Jr See original article at What Lien Rights Do You Have On A Federal Project? Originally posted on the LIEN

Reading the Wall Street Journal last week, I stumbled across “Shaking Up The Smithsonian,” which suggests that the world’s largest museum network is launching an “aggressive building boom.”  This got me thinking about the mechanics lien or bond claim rights on these projects, because I’m sure we’ll have clients starting to furnish labor or materials to them soon.

Federal Miller Act Can Apply Even With Mixed Funding Sources

One of the most common confusions we see when identifying a construction project as state, federal or private comes into play when a project has a mixture of private and public funding.

[pullquote style="right" quote="dark"]A Smithsonian construction project is just as much as a government job as painting the White House walls would be. The fact that the institute is partially funded by private donations makes no difference whatsoever.[/pullquote] This happens often, as many federal and state programs rely heavily on private donations, and many private developments are bankrolled by government programs. When classifying a project as state, federal or private, however, it isn’t the funding that matters at all.  The imperative question is simply: “who owns the project?”  And 99% of the time, that boils down to who owns the underlying property.

The Smithsonian Institute is a great example of this dilemma. Nicknamed the “nation’s attic,” ”funding comes from the Institution’s own endowment, private and corporate contributions, membership dues, government support, and retail, concession and licensing revenues.”

While the institute is funded from a mixture of sources, including private and corporate donations, any construction projects to improve their facilities are governmental projects. The facilities are owned by the government, and the institution itself is government controlled and created.

A Smithsonian construction project is just as much as a government job as painting the White House walls would be. The fact that the institute is partially funded by private donations makes no difference whatsoever.

Written by Scott Wolfe Jr See original article at Miller Act Applies When Doing Construction In The Nation’s Attic Originally posted on the LIEN

The concept of government property leased to a private entity has gotten a lot of press lately, and a lot of discussion on this blog. One may think the situation only rarely arises when a lien claim is sought against a project that is privately commissioned, but is performed on public land leased to a private enterprise. Rare it is not, however.

How will the courts handle lien claims sought on these private-public mixed projects?

On the state level, we’ve seen some hints.

New York wouldn’t provide for any lien or bond claim rights, Washington would allow the claimant to file a standard mechanics lien against the “leasehold interest” in the property, and Oklahoma just passed a law requiring bonds be issued just as it would be required if the work was commissioned by the state. In many states, it’s unclear whether bonds would be required or whether a claimant could file a lien against the leasehold interest.

But what would happen on the federal level under the US Miller Act?

The situation arose this month in Indiana’s Southern District in the case Roth Bros, Inc. v. Ohio Farmers Insurance Co. In this case, the surety sought to avoid a claim under the Miller Act because the “principal” on the bond wasn’t the United States government, but instead was the private enterprise leasing property from the United States government.  The question here was whether it mattered that the principal was a private company and not the government.

A motion to dismiss was filed, and the district court denied the same. Therefore, the Miller Act claim against the bond listing the private enterprise as principal continues for now.

There are a few things to keep in mind about this decision:

1)  It’s a district court decision, which means it has limited applicability.

2) The claimants may eventually lose, but have just survivied a single attack on their claim. Nothing is preventing the surety from raising further attacks.

3) Most importantly, this case does nothing to suggest that a bond is required under this private-public mixture scenario. As it turns out for the claimant in the Roth Bros case, a bond was placed to protect their claim rights. But, if the government isn’t commissioning the work, was a bond ever required?  Under the Miller Act…perhaps not.

Stay tuned here, we’ll continue to update you as this important case unfolds.  Also, a hat tip to Stark Law Office’s Oregon Construction Lawyer Blog for first blogging about this case, and thus bringing it to our attention.

Written by Scott Wolfe Jr See original article at Miller Act May Apply to Federal Property Leased To Private Parties Originally posted on the LIEN

Arbitration clauses in a construction contract are commonplace, but what effect do these clauses have when litigating a Miller Act Claim, which may entitle you to a cause of action against the Miller Act Surety, who is not a party to your contract and not subject to the arbitration clause?

In most federal jurisdictions, the law on this is quite clear, and we were reminded of that two weeks ago in a case from the US District Court in Maine captioned United States v. Consigli Constr. Co.

In that case, a miller act claim was made against the general contractor where the claimant’s contract with the general contractor required the parties submit any disputes to arbitration. As required in these Miller Act suits, the lawsuit was filed against both the general contractor and the general contractor’s surety, Federal Insurance Company (FIC).

The court brushed the case off its docket and mandated that the parties arbitrate their dispute in arbitration, pursuant to the arbitration clause. Of course, FIC and the claimant didn’t have any arbitration obligations between them, so would the court allow the claim to stay in federal court and be pursued independently against the surety?  The clear answer is no:

The majority of federal courts that have held that an arbitration award binds a Miller Act surety. See e.g. U.S. f/u/b/o WFI Georgia, Inc. v. Gray Ins. Co., 701 F. Supp. 2d 1320, 1327-29 (N.D. Ga. 2010)…Consigli has elected to arbitrate its dispute with Maverick and will be bound by the results of that arbitration. Judgment upon the award may be entered in this Court. The Court accepts FIC’s representation that its liability is coextensive with Consigli’s. Maverick will not need to relitigate its claims against FIC following arbitration with Consigli. It would be duplicative and risk inconsistent adjudications to allow Maverick to pursue its Miller Act claim against FIC in this Court simultaneously with its claims against Consigli in arbitration.

Written by Scott Wolfe Jr See original article at Arbitration Clauses Will Require You To Litigate Miller Act Claim Out Of Court Originally posted on the LIEN

If you’re unpaid for labor or materials furnished to a federal construction project, you probably have the right to file a “Miller Act Claim” to secure payment. These claims are filed pursuant to the United States Miller Act, and they allow claimants to make a claim for payment directly to the surety company that has bonded the project. The Miller Act applies to a substantial majority of federal construction projects, but before a project is protected by the Miller Act, it must qualify for that protection.

Miller Act Only Applies When Contracts Are Greater Than $100,000

40 USC 3131(b) provides that the Miller Act only requires a payment bond be issued if the contract is “more than $100,000.”  It’s pretty rare that the federal government undertakes a construction project for less than $100,000, but there are instances when federal buildings require small renovation or repair work. In these instances, the Miller Act is not likely to be applicable.

When determining whether the Miller Act applies, remember that the $100k figure does not regard the value of your specific work.  The $100k figure contemplates the value of the entire project, or more exactly, the value of the contract between the federal government department and the selected prime contractor.  If that amount is over $100,000, the Miller Act will apply and will require a bond.

Miller Act Only Applies For Certain Contract Types

Just because you’re furnishing labor or materials to a federal project does not mean you’re going to have a claim under the Miller Act.  The Miller Act does not apply to every single federal contract.  It only applies to federal construction contracts.

Specifically, 40 USC 3131(b) provides that the Miller Act applies to contracts “awarded for the construction, alteration, or repair of any public building or public work of the Federal Government.”

For the Miller Act to apply, therefore, there must be construction, alteration or repair of a public building or a public work.

Some Projects May Be Exempt From The Miller Act

Once you’ve determined that the project work is of the character protected by the Miller Act and is valuable enough to be protected by the Miller Act, you must look ato 40 USC 3134 to see whether the project is exempted from the Act.

The Miller Acts § 3134 provides that certain Military and Transportation projects may be exempt from the Miller Act Requirements. It’s tough to draw a bright line rule here, however, because not every Military and Transportation project is exempt from the Miller Act.  Only those projects that fit within the statutory exemption are qualified for exemption, and then, if so qualified, they are only exempt if the appropriate officer “waives” the Act’s applicability.

If you’re performing work on a federal military public building or public work, or if you’re working on a vessel for the Department of Transportation, you may very well have rights to file a client under the Miller Act…but, be careful, that these rights may have been waived as per the Act’s exemption.  Read 40 USC § 3134 here.

What should you do if your working on a project that is qualified for exemption under the Miller Act?

Well, it’s difficult for subcontractors, suppliers and other lower tiered project participants to know whether the department waived the Act’s applicability or not. In fact, it’s likely that this information will not be readily available.  As a result, I usually recommend to people that they file the Miller Act Claim regardless. The worst that can happen is that they get notified of the Miller Act exemption. But, at least the claim is filed in case the project is not exempt (which is far more likely).

Written by Scott Wolfe Jr See original article at Examining The Miller Act – When It Applies And When You’re Qualified To Make A Claim Originally posted on the LIEN