Virginia Bond Claim (Little Miller Act) Overview

It’s easy to file and manage your Virginia 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 Virginia’s bond claim laws and requirements, read the frequently asked questions below.

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Virginia

Preliminary Notice Deadlines
None / not applicable.

Virginia

Bond Claim Deadlines
None / not applicable.

Virginia

Preliminary Notice Deadlines
None / not applicable.

Virginia

Bond Claim Deadlines
90 Days

The bond claim must be received by the general contractor within 90 days after the claimant’s last furnishing labor and/or materials to the project, and before suit is filed to enforce. Suit must be initiated more than 90 days, but less than 1 year from claimant's date of last furnishing.

Virginia

Preliminary Notice Deadlines
None / not applicable.

Virginia

Bond Claim Deadlines
90 Days

The bond claim must be received by the general contractor within 90 days after the claimant’s last furnishing labor and/or materials to the project, and before suit is filed to enforce. Suit must be initiated more than 90 days, but less than 1 year from claimant's date of last furnishing.

Virginia Bond Claim (Little Miller Act) FAQs

Virginia Bond Claim FAQs

Who Is Protected under Virginia Bond Claim Laws?

In Virginia, subcontractors, sub-subcontractors, and laborers or material suppliers to the general contractor or first-tier subcontractors are protected. While not specifically set forth in the statute, suppliers to suppliers are likely not covered.

When is the Deadline to File a Virginia Bond Claim?

For parties for whom a notice of bond claim is required, the bond claim must be received by the general contractor within 90 days after the claimant’s last furnishing labor and/or materials to the project, and before filing a lawsuit to enforce.

Who Should Receive the Virginia Bond Claim?

In Virginia, a bond claim must be given to the general contractor supplying the bond. While not specifically required, the claim may also be sent to the contracting public entity and the surety (if known).

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

In Virginia, a suit to enforce a bond claim must be initiated more than 90 days, but less than 1 year after the claimant’s last furnishing of labor and/or materials to the project. Note that this deadline applies even if the language of the bond itself does not limit claims to that specific time period.

What Must the Virginia Bond Claim Include?

In Virginia, a bond claim is only required to contain the amount claimed, and the identity of the party for whom labor and/or material was furnished. It may be best practice to also include a description of the project, and the labor and/or materials provided, and to identify the general contractor and contracting public entity.

How Must the Virginia Bond Claim Be Sent?

Virginia bond claims must be served on the general contractor via registered or certified mail. Note that the claim must be received by the GC within the 90-day time period, not just mailed. This requirement is discussed by the recent R.T. Atkinson Building Corp. v. Archer Western Const. et al.

Virginia Public Project Preliminary Notice FAQs

Do I Need to Send a Virginia Preliminary Notice?

No. Virginia does not require any preliminary notice to preserve the ability to make a bond claim.

When do I Need to Send a Virginia Preliminary Notice?

N/A

What if I Send the Virginia Preliminary Notice Late?

N/A

How Should the Virginia Preliminary Notice be Sent?

N/A

To Whom Must the Virginia Preliminary Notice be Given?

N/A

Virginia Bond Claim (Little Miller Act) Statutes

When you perform work on a state construction project in Virginia, and are not paid, you can file a “lien” against the project pursuant to Virginia’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.” Virginia’s Little Miller Act is found in Virginia Code, Title 2.2, Chapter 43, and is reproduced below. [toc=”2,3,4″ title=”Table of contents”]

Virginia Little Miller Act

§ 2.2-4336. Bid bonds.

A. Except in cases of emergency, all bids or proposals for nontransportation-related construction contracts in excess of $500,000 or transportation-related projects authorized under § 33.1-12 that are in excess of $250,000 and partially or wholly funded by the Commonwealth shall be accompanied by a bid bond from a surety company selected by the bidder that is authorized to do business in Virginia, as a guarantee that if the contract is awarded to the bidder, he will enter into the contract for the work mentioned in the bid. The amount of the bid bond shall not exceed five percent of the amount bid.
B. For nontransportation-related construction contracts in excess of $100,000 but less than $500,000, where the bid bond requirements are waived, prospective contractors shall be prequalified for each individual project in accordance with § 2.2-4317.
C. No forfeiture under a bid bond shall exceed the lesser of (i) the difference between the bid for which the bond was written and the next low bid, or (ii) the face amount of the bid bond.
D. Nothing in this section shall preclude a public body from requiring bid bonds to accompany bids or proposals for construction contracts anticipated to be less than $500,000 for nontransportation-related projects or $250,000 for transportation-related projects authorized under § 33.1-12 and partially or wholly funded by the Commonwealth. Back to Top

§ 2.2-4337. Performance and payment bonds.

A. Except as provided in subsection H, upon the award of any (i) public construction contract exceeding $500,000 awarded to any prime contractor; (ii) construction contract exceeding $500,000 awarded to any prime contractor requiring the performance of labor or the furnishing of materials for buildings, structures or other improvements to real property owned or leased by a public body; (iii) construction contract exceeding $500,000 in which the performance of labor or the furnishing of materials will be paid with public funds; or (iv) transportation-related projects exceeding $350,000 that are partially or wholly funded by the Commonwealth, the contractor shall furnish to the public body the following bonds:
1. A performance bond in the sum of the contract amount conditioned upon the faithful performance of the contract in strict conformity with the plans, specifications and conditions of the contract. For transportation-related projects authorized under § 33.1-12, such bond shall be in a form and amount satisfactory to the public body.
2. A payment bond in the sum of the contract amount. The bond shall be for the protection of claimants who have and fulfill contracts to supply labor or materials to the prime contractor to whom the contract was awarded, or to any subcontractors, in furtherance of the work provided for in the contract, and shall be conditioned upon the prompt payment for all materials furnished or labor supplied or performed in the furtherance of the work. For transportation-related projects authorized under § 33.1-12 and partially or wholly funded by the Commonwealth, such bond shall be in a form and amount satisfactory to the public body.
“Labor or materials” shall include public utility services and reasonable rentals of equipment, but only for periods when the equipment rented is actually used at the site. B. For nontransportation-related construction contracts in excess of $100,000 but less than $500,000, where the bid bond requirements are waived, prospective contractors shall be prequalified for each individual project in accordance with § 2.2-4317.
C. Each of the bonds shall be executed by one or more surety companies selected by the contractor that are authorized to do business in Virginia.
D. If the public body is the Commonwealth, or any agency or institution thereof, the bonds shall be payable to the Commonwealth of Virginia, naming also the agency or institution thereof. Bonds required for the contracts of other public bodies shall be payable to such public body.
E. Each of the bonds shall be filed with the public body that awarded the contract, or a designated office or official thereof.
F. Nothing in this section shall preclude a public body from requiring payment or performance bonds for construction contracts below $500,000 for nontransportation-related projects or $350,000 for transportation-related projects authorized under § 33.1-12 and partially or wholly funded by the Commonwealth.
G. Nothing in this section shall preclude the contractor from requiring each subcontractor to furnish a payment bond with surety thereon in the sum of the full amount of the contract with such subcontractor conditioned upon the payment to all persons who have and fulfill contracts that are directly with the subcontractor for performing labor and furnishing materials in the prosecution of the work provided for in the subcontract.
H. The performance and paymanet bond requirements of subsection A for transportation-related projects that are valued in excess of $250,000 but less than $350,000 may only be waived by a public body if the bidder provides evidence, satisfacotry to the public body, that a surety company has declined an application from the contractor for a performance or payment bond. Back to Top

§ 2.2-4338. Alternative forms of security.

A. In lieu of a bid, payment, or performance bond, a bidder may furnish a certified check, cashier’s check, or cash escrow in the face amount required for the bond.
B. If approved by the Attorney General in the case of state agencies, or the attorney for the political subdivision in the case of political subdivisions, a bidder may furnish a personal bond, property bond, or bank or savings institution’s letter of credit on certain designated funds in the face amount required for the bid, payment or performance bond. Approval shall be granted only upon a determination that the alternative form of security proffered affords protection to the public body equivalent to a corporate surety’s bond.
C. The provisions of this section shall not apply to the Department of Transportation. Back to Top

§ 2.2-4339. Bonds on other than construction contracts.

A public body may require bid, payment, or performance bonds for contracts for goods or services if provided in the Invitation to Bid or Request for Proposal. Back to Top

§ 2.2-4340. Action on performance bond.

No action against the surety on a performance bond shall be brought unless within five years after completion of the work on the project to the satisfaction of the Department of Transportation, in cases where the public body is the Department of Transportation, or, in all other cases, within one year after (i) completion of the contract, including the expiration of all warranties and guarantees, or (ii) discovery of the defect or breach of warranty that gave rise to the action. Back to Top

§ 2.2-4341. Actions on payment bonds; waiver of right to sue.
A. Any claimant who has a direct contractual relationship with the contractorand who has performed labor or furnished material in accordance with thecontract documents in furtherance of the work provided in any contract for which a payment bond has been given, and who has not been paid in full before the expiration of 90 days after the day on which the claimant performed the last of the labor or furnished the last of the materials for which he claims payment, may bring an action on the payment bond to recover any amount due him for the labor or material. The obligee named in the bond need not be named a party to the action.
B. Any claimant who has a direct contractual relationship with anysubcontractor but who has no contractual relationship, express or implied, with the contractor, may bring an action on the contractor’s payment bondonly if he has given written notice to the contractor within 90 days from the day on which the claimant performed the last of the labor or furnished the last of the materials for which he claims payment, stating with substantial accuracy the amount claimed and the name of the person for whom the work was performed or to whom the material was furnished. Notice to the contractorshall be served by registered or certified mail, postage prepaid, in an envelope addressed to such contractor at any place where his office is regularly maintained for the transaction of business. Claims for sums withheld as retainages with respect to labor performed or materials furnished, shall not be subject to the time limitations stated in this subsection.
C. Any action on a payment bond shall be brought within one year after the day on which the person bringing such action last performed labor or last furnished or supplied materials.
D. Any waiver of the right to sue on the payment bond required by this section shall be void unless it is in writing, signed by the person whose right is waived, and executed after such person has performed labor or furnished material in accordance with the contract documents.

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§ 2.2-4342. Public inspection of certain records.

A. Except as provided in this section, all proceedings, records, contracts and other public records relating to procurement transactions shall be open to the inspection of any citizen, or any interested person, firm or corporation, in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). B. Cost estimates relating to a proposed procurement transaction prepared by or for a public body shall not be open to public inspection. C. Any competitive sealed bidding bidder, upon request, shall be afforded the opportunity to inspect bid records within a reasonable time after the opening of all bids but prior to award, except in the event that the public body decides not to accept any of the bids and to reopen the contract. Otherwise, bid records shall be open to public inspection only after award of the contract. D. Any competitive negotiation offeror, upon request, shall be afforded the opportunity to inspect proposal records within a reasonable time after the evaluation and negotiations of proposals are completed but prior to award, except in the event that the public body decides not to accept any of the proposals and to reopen the contract. Otherwise, proposal records shall be open to public inspection only after award of the contract. E. Any inspection of procurement transaction records under this section shall be subject to reasonable restrictions to ensure the security and integrity of the records. F. Trade secrets or proprietary information submitted by a bidder, offeror or contractor in connection with a procurement transaction or prequalification application submitted pursuant to subsection B of § 2.2-4317 shall not be subject to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.); however, the bidder, offeror or contractor shall (i) invoke the protections of this section prior to or upon submission of the data or other materials, (ii) identify the data or other materials to be protected, and (iii) state the reasons why protection is necessary. Back to Top