South Dakota Little Miller Act Statute

South Dakota’s Little Miller Act

When you perform work on a state construction project in South Dakota, and are not paid, you can file a “lien” against the project pursuant to South Dakota’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.” South Dakota’s Little Miller Act is found in South Dakota Codified Laws, Title 5, Chapter 21 (Performance Bonds for Public Improvement Contracts) and is reproduced below. [toc=”2,3,4″ title=”Table of contents”]

5-21-1. Surety bond required–Obligation of prompt payment of laborers and materialmen.

Except as provided in § 31-12-15, when any contract is entered into for the construction of public improvement or the furnishing of any material or labor therefor, the contractor is required, before commencing such work, to furnish surety in an amount not less than the contract price, for the faithful performance of the contract, with the additional obligation that the contractor shall promptly pay all persons supplying him with labor or material in the prosecution of the work provided for in the contract. Back to Top

5-21-1.1. Waiver of performance security requirement on contracts less than certain amount.

The requirement of a performance security may be waived by public corporations when the bid submitted does not exceed twenty-five thousand dollars. Back to Top

5-21-1.2. Waiver of performance and payment bonds on contracts less than certain amount.

The State of South Dakota, acting through the Bureau of Administration, shall waive the requirement of a performance and payment bond, before the bid letting, on state projects if the awarded contract does not exceed fifty thousand dollars. Back to Top

5-21-2. Public corporation’s civil liability for failure to require bond for protection of laborers and materialmen.

In case any such public corporation shall fail or neglect to require the execution of the surety provided for in § 5-21-1, such public corporation shall be liable to pay any person who shall have performed labor or furnished any material that entered into the erection, alteration, repair or improvement of such building, the value of such work or material and an action may be maintained therefor; provided, that an action brought under the provisions of this section shall be commenced within ninety days from the acceptance of the work for which the same shall be claimed. Back to Top

5-21-3. Surety bond to cover use tax liability–Amount of liability.

If a contract is entered into for the construction, alteration, or repair of improvements to be located in this state, including public improvements, and the contractor or subcontractor furnishes surety for the faithful performance of the contract, there is hereby imposed an additional obligation upon the surety to the State of South Dakota that the contractor or subcontractor shall promptly pay all taxes which may accrue to the State of South Dakota under the provisions of chapters 10-46, 10-46A, and 10-46B. For the purposes of this section and § 5-21-4 the term, surety, means a bond or undertaking executed by a surety company authorized to do business in the State of South Dakota. Back to Top

5-21-4. Notice of surety bond to secretary of revenue–Termination of surety’s liability for use and excise tax.

The surety within sixty days after entering into such performance bond shall send notice of the bond to the secretary of revenue. Six months after the completion of the contract and the acceptance of the improvement by the owner thereof, the additional obligation imposed upon the surety shall cease unless written notice, within such period of time, of unpaid use taxes and contractors’ excise taxes, is given to the surety by the secretary of revenue. Back to Top

5-21-5. Laborers’ and materialmen’s right to intervene in action against public contractor–Pro rata distribution if surety’s liability insufficient.

Any person who has furnished labor or material used in the construction of any such public improvement as described in § 5-21-1, payment for which has not been made, shall have the right to intervene and be made a party to any action instituted by the public corporation on the surety, and to have his rights and claims adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the claim and judgment of such public corporation. If the full amount of liability of the surety company is insufficient to pay the full amount of such claims and demands, then, after paying the full amount due the public corporation, the remainder shall be distributed pro rata among such interveners. Back to Top

5-21-6. Action by laborer or materialman on public contractor’s bond–Limitation of action–Intervention by other claimants–Costs.

If no suit should be brought by the public corporation within six months from the completion and final settlement of such contract, the person supplying the contractor with labor or material shall, upon application therefor and furnishing affidavit to the corporation that labor or material for the prosecution of such work has been supplied by him and payment for the same has not been made, be furnished with a certified copy of such contract and surety, upon which he shall have a right of action and shall be authorized to bring suit in the name of the public corporation in the circuit court for the county in which such contract was to be performed and not elsewhere, for his use and benefit, against such contractor and his surety, and to prosecute the same to final judgment; provided, that where suit is instituted by any such person on the surety of the contractor, it shall not be commenced until six months after the complete performance of such contract and final settlement thereof but must be commenced within one year thereafter; provided, further, that where suit is so instituted by any such person, only one action shall be brought, and any person may file his claim in such action and be made a party thereto within one year from the completion of the work under such contract, and not later; and provided, further, that costs shall not be taxed in such suit against the public corporation. Back to Top

5-21-7. Pro rata distribution among claimants if bond insufficient.

Surety relieved from liability by payment into court. If recovery on the bond should be inadequate to pay the amounts found due all such persons, judgment shall be given to each person for his pro rata of the amount of recovery. The surety company may pay into court for distribution among such claimants and creditors the full amount of the penalty named in the bond, less any amount which such surety company may have paid to the public corporation by reason of the execution of such bond, and upon so doing the surety company shall be relieved from further liability. Back to Top

5-21-8. Personal and public notice to creditors of action on public contractor’s bond.

In all suits instituted under the provisions of §§ 5-21-5 and 5-21-6, personal notice of the pendency of such suit, informing them of their right to intervene, as the court may order, shall be given to all known creditors, and in addition thereto notice shall be given by publication in some newspaper of general circulation, published in the county where the contract is being performed once each week for at least two successive weeks with the first publication to be made at least three months before the time limited therefor. Back to Top