Ohio Bond Claim (Little Miller Act) Overview

It’s easy to file and manage your Ohio bond claims with zlien, the industry’s only all-in-one bond claim and security rights management platform. Get complete control over your bond claim rights on a state, county, or municipal project, by using intelligent technology. To learn more about Ohio’s bond claim laws and requirements, read the frequently asked questions below.

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Ohio

Preliminary Notice Deadlines

Ohio

Bond Claim Deadlines

Ohio

Preliminary Notice Deadlines

Ohio

Bond Claim Deadlines

Ohio

Preliminary Notice Deadlines

Ohio

Bond Claim Deadlines

Ohio Bond Claim (Little Miller Act) FAQs

Ohio Bond Claim FAQs

Who Is Protected under Ohio Bond Claim Laws?

In Ohio, subcontractors, laborers, and material suppliers are all protected regardless of project tier. It is unclear if suppliers to suppliers are protected, but given the otherwise broad coverage, they may be. Proof of delivery of materials to the project creates a conclusive presumption that the materials were actually used in the project.

When is the Deadline to File a Ohio Bond Claim?

Lien on Contract Funds: The claim must be given to the public entity within 120 days from the date of claimant’s last furnishing of labor and/or materials to the project. However, the sooner the claim is given the better as it is only effective as to funds not yet already paid to the general contractor. The claim must be filed with the county recorder for the county in which the project is located within 30 days after the claim is given to the public entity. The claim must be served on the general contractor within 5 days of filing with the county recorder and served on a subcontractor within 20 days after serving the public entity. Along with serving the claim on the general contractor, the claimant must also serve a notice that the general contractor must give notice of intention to dispute the claim within 20 days.

Bond Claim: Must be received after claimant’s last furnishing of labor and/or materials to the project, but less than 90 days after completion of the project by the general contractor and acceptance of the project by the public entity.

Who Should Receive the Ohio Bond Claim?

Lien on Contract Funds: The claim of lien must be given to 1) the representative of the public authority named in the notice of commencement; 2) the county recorder for the county in which the project is located; and 3) the general contractor. Note that the public entity is required to provide notice of the claim to the general contractor, but it is likely best practice for the claimant to provide the notice of claim.

Bond Claim: The only party required to receive the bond claim is the surety. It may be best practice to also provide a copy to the general contractor and the contracting public entity.

When is the Deadline to Initiate Suit, or, How Long is My Ohio Bond Claim Effective?

A lawsuit must be commenced within 60 days after the date of the service of the affidavit. Lawsuits may only be commenced if the public authority fails to make payment; however, both contractors and subcontractors may sue the public authority.

What Must the Ohio Bond Claim Include?

Lien on Contract Funds: Must include a sworn statement including an itemized account of the amount due (after deducting credits and offsets, and not including interest), the date of last furnishing of labor and/or materials, and the address of the claimant.

Bond Claim: The only required information to be included on a bond claim in Ohio is a statement of the amount due to the claimant. It may be advisable to also include the name of the claimant, general contractor, hiring party, and public entity, and a description of the project and the labor and/or material furnished.

What Are the Lien Waiver Rules?

Ohio does not have statutory lien waiver forms, and therefore, you can use any lien waiver forms. Since lien waivers are unregulated, be careful when reviewing and signing lien waivers. See this article: Should You Sign That Lien Waiver?.

Ohio state law is unclear or silent about whether contractors and suppliers can waive their lien rights before any work on the project begins. Accordingly, you want to proceed with caution on this subject. You can learn more about such “no lien clauses” at this article: Where Can You Waive Your Lien Rights Before Payment?

Can Suppliers to Suppliers File Bond Claims?

Maybe. Suppliers to suppliers may be able to file a bond claim in Ohio. The law is not clear.

How Must the Ohio Bond Claim Be Sent?

Lien on Contract Funds: Must be sent public entity via registered mail, must be filed with the county recorder, must be served on the general contractor (certified or registered mail return receipt requested, or personal service), and must be furnished to the subcontractor [if applicable] (certified or registered mail return receipt requested, or personal service). Actual receipt by subcontractor is necessary, if applicable.

Bond Claim: Registered mail or certified mail is likely advisable, however, no specific method is required by statute.

Ohio Public Project Preliminary Notice FAQs

Do I Need to Send a Ohio Preliminary Notice?

It depends.

Lien on Contract Funds: All claimants without a direct contract with the general contractor (excluding wage laborers) must send a preliminary notice in order to preserve their lien rights.

Bond Claim: All claimants without a direct contract with the general contractor (excluding wage laborers) must send a preliminary notice in order to preserve their lien rights, provided that the labor and/or materials furnished were more than $30,000. Note that no parties are required to send a preliminary notice on a highway construction project but it may be best practice to do so anyway if supplying more than $30,000 of labor and/or materials.

When do I Need to Send a Ohio Preliminary Notice?

Lien on Contact Funds: Notice to the general contractor should be given within 21 days after the claimant’s first furnishing of labor and/or materials to the project. If served by certified mail, the date of mailing must be within the 21-day period, not the date of actual receipt. If served personally, it must be actually served within the 21-day period. Notice to the Public Authority is not specified to occur by any particular date, but it is generally advisable to send the notice as soon as possible after delivering notice to the general contractor.

Bond Claim: Notice should be given within 21 days after the claimant’s first furnishing of labor and/or materials to the project. If served by certified mail, the date of mailing must be within the 21-day period, not the date of actual receipt. If served personally, it must be actually served within the 21-day period.

What if I Send the Ohio Preliminary Notice Late?

If the preliminary notice is sent after the 21-day deadline, the notice only protects a claim for labor and/or materials furnished within the preceding 21 days and after the notice has been served. If the notice is not given at all, the claimant’s rights to make a bond claim are extinguished.

How Should the Ohio Preliminary Notice be Sent?

Preliminary notice may be served via certified mail, or personal service. If served by certified mail, the notice is considered served on the date of mailing; if served by personal service the notice is considered served upon actual service.

To Whom Must the Ohio Preliminary Notice be Given?

Lien on Contract Funds: Preliminary notice must be given to the general contractor.

Bond Claim: The only party required by statute to receive preliminary notice on a bond claim in Ohio is the general contractor.

Ohio Bond Claim (Little Miller Act) Statutes

When you perform work on a state construction project in Ohio, and are not paid, you can file a “lien” against the project pursuant to Ohio’s Little Miller Act. Since the claim is not against the state or county’s actual property, but instead against a posted bond, the claim is not really called a “lien” but is more frequently referred to as a “bond claim” or “little miller act claim.”

Ohio’s Little Miller Act is found in Ohio Revised Code Title I, Chapter 153, and is reproduced below.

Ohio Little Miller Act

153.54 Bid guaranty to be filed with bid.

(A) Each person bidding for a contract with the state or any political subdivision, district, institution, or other agency thereof, excluding therefrom the department of transportation, for any public improvement shall file with the bid, a bid guaranty in the form of either:

(1) A bond in accordance with division (B) of this section for the full amount of the bid;

(2) A certified check, cashier’s check, or letter of credit pursuant to Chapter 1305. of the Revised Code, in accordance with division (C) of this section. Any such letter of credit is revocable only at the option of the beneficiary state, political subdivision, district, institution, or agency. The amount of the certified check, cashier’s check, or letter of credit shall be equal to ten per cent of the bid.

(B) A bid guaranty filed pursuant to division (A)(1) of this section shall be conditioned to:

(1) Provide that, if the bid is accepted, the bidder, after the awarding or the recommendation for the award of the contract, whichever the contracting authority designates, will enter into a proper contract in accordance with the bid, plans, details, specifications, and bills of material. If for any reason, other than as authorized by section 9.31 of the Revised Code or division (G) of this section, the bidder fails to enter into the contract, and the contracting authority awards the contract to the next lowest bidder, the bidder and the surety on the bidder’s bond are liable to the state, political subdivision, district, institution, or agency for the difference between the bid and that of the next lowest bidder, or for a penal sum not to exceed ten per cent of the amount of the bond, whichever is less. If the state, political subdivision, district, institution, or agency does not award the contract to the next lowest bidder but resubmits the project for bidding, the bidder failing to enter into the contract and the surety on the bidder’s bond, except as provided in division (G) of this section, are liable to the state, political subdivision, district, institution, or agency for a penal sum not to exceed ten per cent of the amount of the bid or the costs in connection with the resubmission of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, whichever is less.

(2) Indemnify the state, political subdivision, district, institution, or agency against all damage suffered by failure to perform the contract according to its provisions and in accordance with the plans, details, specifications, and bills of material therefor and to pay all lawful claims of subcontractors, material suppliers, and laborers for labor performed or material furnished in carrying forward, performing, or completing the contract; and agree and assent that this undertaking is for the benefit of any subcontractor, material supplier, or laborer having a just claim, as well as for the state, political subdivision, district, institution, or agency.

(C)(1) A bid guaranty filed pursuant to division (A)(2) of this section shall be conditioned to provide that if the bid is accepted, the bidder, after the awarding or the recommendation for the award of the contract, whichever the contracting authority designates, will enter into a proper contract in accordance with the bid, plans, details, specifications, and bills of material. If for any reason, other than as authorized by section 9.31 of the Revised Code or division (G) of this section, the bidder fails to enter into the contract, and the contracting authority awards the contract to the next lowest bidder, the bidder is liable to the state, political subdivision, district, institution, or agency for the difference between the bidder’s bid and that of the next lowest bidder, or for a penal sum not to exceed ten per cent of the amount of the bid, whichever is less. If the state, political subdivision, district, institution, or agency does not award the contract to the next lowest bidder but resubmits the project for bidding, the bidder failing to enter into the contract, except as provided in division (G) of this section, is liable to the state, political subdivision, district, institution, or agency for a penal sum not to exceed ten per cent of the amount of the bid or the costs in connection with the resubmission, of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, whichever is less.

If the bidder enters into the contract, the bidder, at the time the contract is entered to, shall file a bond for the amount of the contract to indemnify the state, political subdivision, district, institution, or agency against all damage suffered by failure to perform the contract according to its provisions and in accordance with the plans, details, specifications, and bills of material therefor and to pay all lawful claims of subcontractors, material suppliers, and laborers for labor performed or material furnished in carrying forward, performing, or completing the contract; and agree and assent that this undertaking is for the benefit of any subcontractor, material supplier, or laborer having a just claim, as well as for the state, political subdivision, district, institution, or agency.

(2) A construction manager who enters into a contract pursuant to sections 9.33 to 9.333 of the Revised Code, if required by the public owner at the time the construction manager enters into the contract, shall file a letter of credit pursuant to Chapter 1305. of the Revised Code, bond, certified check, or cashier’s check, for the value of the construction management contract to indemnify the state, political subdivision, district, institution, or agency against all damage suffered by the construction manager’s failure to perform the contract according to its provisions, and shall agree and assent that this undertaking is for the benefit of the state, political subdivision, district, institution, or agency. A letter of credit provided by the construction manager is revocable only at the option of the beneficiary state, political subdivision, district, institution, or agency.

(D) Where the state, political subdivision, district, institution, or agency accepts a bid but the bidder fails or refuses to enter into a proper contract in accordance with the bid, plans, details, specifications, and bills of material within ten days after the awarding of the contract, the bidder and the surety on any bond, except as provided in division (G) of this section, are liable for the amount of the difference between the bidder’s bid and that of the next lowest bidder, but not in excess of the liability specified in division (B)(1) or (C) of this section. Where the state, political subdivision, district, institution, or agency then awards the bid to such next lowest bidder and such next lowest bidder also fails or refuses to enter into a proper contract in accordance with the bid, plans, details, specifications, and bills of material within ten days after the awarding of the contract, the liability of such next lowest bidder, except as provided in division (G) of this section, is the amount of the difference between the bids of such next lowest bidder and the third lowest bidder, but not in excess of the liability specified in division (B)(1) or (C) of this section. Liability on account of an award to any lowest bidder beyond the third lowest bidder shall be determined in like manner.

(E) Notwithstanding division (C) of this section, where the state, political subdivision, district, institution, or agency resubmits the project for bidding, each bidder whose bid was accepted but who failed or refused to enter into a proper contract, except as provided in division (G) of this section, is liable for an equal share of a penal sum in connection with the resubmission, of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, but no bidder’s liability shall exceed the amount of the bidder’s bid guaranty.

(F) All bid guaranties filed pursuant to this section shall be payable to the state, political subdivision, district, institution, or agency, be for the benefit of the state, political subdivision, district, institution, or agency or any person having a right of action thereon, and be deposited with, and held by, the board, officer, or agent contracting on behalf of the state, political subdivision, district, institution, or agency. All bonds filed pursuant to this section shall be issued by a surety company authorized to do business in this state as surety approved by the board, officer, or agent awarding the contract on behalf of the state, political subdivision, district, institution, or agency.

(G) A bidder for a contract with the state or any political subdivision, district, institution, or other agency thereof, excluding therefrom the Ohio department of transportation, for a public improvement costing less than one-half million dollars may withdraw the bid from consideration if the bidder’s bid for some other contract with the state or any political subdivision, district, institution, or other agency thereof, excluding therefrom the department of transportation, for the public improvement costing less than one-half million dollars has already been accepted, if the bidder certifies in good faith that the total amount of all the bidder’s current contracts is less than one-half million dollars, and if the surety certifies in good faith that the bidder is unable to perform the subsequent contract because to do so would exceed the bidder’s bonding capacity. If a bid is withdrawn under authority of this division, the contracting authority may award the contract to the next lowest bidder or reject all bids and resubmit the project for bidding, and neither the bidder nor the surety on the bidder’s bond are liable for the difference between the bidder’s bid and that of the next lowest bidder, for a penal sum, or for the costs of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders.

(H) Bid guaranties filed pursuant to division (A) of this section shall be returned to all unsuccessful bidders immediately after the contract is executed. The bid guaranty filed pursuant to division (A)(2) of this section shall be returned to the successful bidder upon filing of the bond required in division (C) of this section.

(I) For the purposes of this section, “next lowest bidder” means, in the case of a political subdivision that has adopted the model Ohio and United States preference requirements promulgated pursuant to division (E) of section 125.11 of the Revised Code, the next lowest bidder that qualifies under those preference requirements.

(J) For the purposes of this section and sections 153.56, 153.57, and 153.571 of the Revised Code, “public improvement,” “subcontractor,” ” material supplier,” “laborer,” and “materials” have the same meanings as in section 1311.25 of the Revised Code.

153.56 Creditor shall furnish statement of amount due - service of notice of furnishing.

(A) Any person to whom any money is due for labor or work performed or materials furnished in a public improvement as provided in section 153.54 of the Revised Code, at any time after performing the labor or work or furnishing the materials, but not later than ninety days after the completion of the contract by the principal contractor and the acceptance of the public improvement for which the bond was provided by the duly authorized board or officer, shall furnish the sureties on the bond, a statement of the amount due to the person.

(B) A suit shall not be brought against sureties on the bond until after sixty days after the furnishing of the statement described in division (A) of this section. If the indebtedness is not paid in full at the expiration of that sixty days, and if the person complies with division (C) of this section, the person may bring an action in the person’s own name upon the bond, as provided in sections 2307.06 and 2307.07 of the Revised Code, that action to be commenced, notwithstanding section 2305.12 of the Revised Code, not later than one year from the date of acceptance of the public improvement for which the bond was provided.

(C) To exercise rights under this section, a subcontractor or materials supplier supplying labor or materials that cost more than thirty thousand dollars, who is not in direct privity of contract with the principal contractor for the public improvement, shall serve a notice of furnishing upon the principal contractor in the form provided in section 1311.261 of the Revised Code.

(D) A subcontractor or materials supplier who serves a notice of furnishing under division (C) of this section as required to exercise rights under this section has the right of recovery only as to amounts owed for labor and work performed and materials furnished during and after the twenty-one days immediately preceding service of the notice of furnishing.

(E) For purposes of this section, “principal contractor” has the same meaning as in section 1311.25 of the Revised Code.

153.57 Form of bond.

(A) The bond provided for in division (C)(1) of section 153.54 of the Revised Code shall be in substantially the following form, and recovery of any claimant thereunder shall be subject to sections 153.01 to 153.60 of the Revised Code, to the same extent as if the provisions of those sections were fully incorporated in the bond form:

“KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned ………………………. as principal and ………………. as sureties, are hereby held and firmly bound unto ………………. in the penal sum of …………. dollars, for the payment of which well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors, and assigns.

Signed this …………. day of ……………., ….

THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above named principal did on the ……………. day of …………………, …., enter into a contract with …………….., which said contract is made a part of this bond the same as though set forth herein;

Now, if the said ………………….. shall well and faithfully do and perform the things agreed by ……………… to be done and performed according to the terms of said contract; and shall pay all lawful claims of subcontractors, material suppliers, and laborers, for labor performed and materials furnished in the carrying forward, performing, or completing of said contract; we agreeing and assenting that this undertaking shall be for the benefit of any material supplier or laborer having a just claim, as well as for the obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated.

The said surety hereby stipulates and agrees that no modifications, omissions, or additions, in or to the terms of the said contract or in or to the plans or specifications therefor shall in any wise affect the obligations of said surety on its bond.”

(B) The bond provided for in division (C)(2) of section 153.54 of the Revised Code shall be in substantially the following form:

“KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned ……… as principal and …………. as sureties, are hereby held and firmly bound unto …………. in the penal sum of ………….. dollars, for the payment of which well and truly be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors, and assigns.

Signed this ……… day of ………, …….

THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above named principal did on the …….. day of …….., ……, entered into a contract with …………… which said contract is made a part of this bond the same as though set forth herein;

Now, if the said ……………. shall well and faithfully do and perform the things agreed by …………. to be done and performed according to the terms of the said contract; we agreeing and assenting that this undertaking shall be for the benefit of the obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of the obligation as herein stated.

The surety hereby stipulates and agrees that no modifications, omissions, or additions, in or to the terms of the contract shall in any way affect the obligation of the surety on its bond.”

153.571 Form of bond.

The bond provided for in division (B) of section 153.54 of the Revised Code shall be in substantially the following form, and recovery of any claimant thereunder shall be subject to sections 153.01 to 153.60 of the Revised Code, to the same extent as if the provisions of such sections were fully incorporated in the bond form:

“KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned . . . . . . . . . . as principal and . . . . . . . . . . as sureties, are hereby held and firmly bound unto . . . . . . . . . . as obligee in the penal sum of the dollar amount of the bid submitted by the principal to the obligee on . . . . . . . . . . to undertake the project known as . . . . . . . . . .. The penal sum referred to herein shall be the dollar amount of the principal’s bid to the obligee, incorporating any additive or deductive alternate bids made by the principal on the date referred to above to the obligee, which are accepted by the obligee. In no case shall the penal sum exceed the amount of . . . . . dollars. (If the foregoing blank is not filled in, the penal sum will be the full amount of the principal’s bid, including alternates. Alternatively, if the blank is filled in, the amount stated must not be less than the full amount of the bid including alternates, in dollars and cents. A percentage is not acceptable.) For the payment of the penal sum well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors, and assigns.

Signed this . . . . . day of . . . . . . . ., . . .. THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above named principal has submitted a bid for . . . . . . . . . ..

Now, therefore, if the obligee accepts the bid of the principal and the principal fails to enter into a proper contract in accordance with the bid, plans, details, specifications, and bills of material; and in the event the principal pays to the obligee the difference not to exceed ten per cent of the penalty hereof between the amount specified in the bid and such larger amount for which the obligee may in good faith contract with the next lowest bidder to perform the work covered by the bid; or in the event the obligee does not award the contract to the next lowest bidder and resubmits the project for bidding, the principal pays to the obligee the difference not to exceed ten per cent of the penalty hereof between the amount specified in the bid, or the costs, in connection with the resubmission, of printing new contract documents, required advertising, and printing and mailing notices to prospective bidders, whichever is less, then this obligation shall be null and void, otherwise to remain in full force and effect; if the obligee accepts the bid of the principal and the principal within ten days after the awarding of the contract enters into a proper contract in accordance with the bid, plans, details, specifications, and bills of material, which said contract is made a part of this bond the same as though set forth herein;

Now also, if the said . . . . . . . . . . shall well and faithfully do and perform the things agreed by . . . . . . . . . . to be done and performed according to the terms of said contract; and shall pay all lawful claims of subcontractors, materials suppliers, and laborers, for labor performed and materials furnished in the carrying forward, performing, or completing of said contract; we agreeing and assenting that this undertaking shall be for the benefit of any materials suppliers or laborer having a just claim, as well as for the obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated.

The said surety hereby stipulates and agrees that no modifications, omissions, or additions, in or to the terms of the said contract or in or to the plans or specifications therefor shall in any wise affect the obligations of said surety on its bond.”

153.58 Prohibition.

No officers shall violate sections 153.01 to 153.57, inclusive, of the Revised Code.

153.581 Contracts for construction definitions.

As used in sections 153.581 and 153.591 of the Revised Code:

(A) “Public works contract” means any contract awarded by a contracting authority for the construction, engineering, alteration, or repair of any public building, public highway, or other public work.

(B) “Contracting authority” means the state, any township, county, municipal corporation, school board, or other governmental entity empowered to award a public works contract.

(C) “Contractor” means any person, partnership, corporation, or association that has been awarded a public works contract.