The right of subcontractors to get paid on federal projects
is more iron-clad thanks to a recent decision out of the Ninth Circuit Court of
Appeals, handed down on April 29, 2014. The decision explains that state law
cannot frustrate the federal statute providing subcontractors and other
companies an avenue to payment for their work.
The federal law that provides companies and persons with
such a remedy is the Miller Act. This Act protects persons who contribute to
the performance of a federal construction contract, including subcontractors
and those who directly contract with subcontractors, such as sub-subcontractors.
Recently, a Ninth Circuit case confirmed that state law cannot bar a contractor’s
federal Miller Act lawsuit for payment.
The Miller Act makes general contractors on federal construction projects provide a payment bond “for the protection of all persons
supplying labor and material in carrying out the work provided for in the contract.”
40 U.S.C. § 3133(b)(2). Under the Miller Act, any person who has furnished
labor or materials for work on a federal construction project, and who has not
received full payment within 90 days after their last day of work or furnishing
of materials or supplies can bring a civil lawsuit on the project’s payment
bond for the amount due at the time the lawsuit is filed. 40 U.S.C. §
3133(b)(1).
The federal Miller Act is remedial in nature, and the
Supreme Court has confirmed that its rights and remedies cannot be conditioned
by state law. The Ninth Circuit recently affirmed this principle in a case of
first impression, joining the Supreme Court and the Eighth and Tenth Circuits.
In Technica, LLC v.
Carolina Cas. Ins. Co., No. 12-56539 (April 29, 2014), the prime contractor
and surety for the federal payment bond at issue tried to argue that Technica,
a sub-subcontractor on the federal government project, could not maintain its
Miller Act lawsuit because it lacked a California contractor’s license. A
California law precluded any unlicensed contractor from filing a lawsuit to
collect for unpaid services, but the Technica
Court held that the California law could not limit Technica’s rights under the
federal Miller Act.
While many construction laws have strict time limits and
procedural requirements, the Technica
Court made it clear that state laws attempting to limit a claimant’s rights and
remedies under the federal Miller Act will be struck down. The construction lawteam at Berenzweig Leonard has experience navigating the complexities of the
federal Miller Act and its intersection with local state laws.
Katie
Lipp is an attorney with the Washington, DC regionalbusiness law firm Berenzweig Leonard, LLP. Katie can be reached at klipp@berenzweiglaw.com.
