Governed by the Little Miller Act (Georgia)
Essentially, all public
projects require the contractor to obtain a payment
bond for the benefit of subcontractors, materialmen
and others who provide services, labor materials or
equipment on a public construction project. Sometimes
private sector owners require the contractor to have
a payment bond on the private owner's project. (See
O.C.G.A. 13-10-1 et seq., and O.C.G.A. 36-91-1 et
Support for the
Request a copy of the payment bond by way
of certified mail from the contractor and owner. A
claim must be made on the bond. The subcontractor/materialman
should provide by certified letter a demand to the
bonding company identifying the amount owed, specifically
detailing the labor, equipment, material or services
provided and a demand of payment. A similar letter
should be sent to the owner notifying the public owner
that payment is owed. If the claimant is a second
tier subcontractor/materialman, a certified letter
should be sent to the general contractor identifying
the subcontractor for which the labor, equipment,
services, or material was provided, the amount owed
and a demand for payment by the general contractor
and its surety to the claimant.
Subcontractors and materialmen with contracts
with the general contractor must make their claim
and bring suit on the bond within one year of completion
of the public project.
Subcontractors and materialmen without
a contract with the contractor (second tier subcontractors/materialmen
must give written notice to the contractor within
90 days of last supplying labor, materials, equipment
or service to the project. Failure to provide this
notice eliminates the second tier's rights to claim
against the payment bond.
The notice must provide the amount owed,
identify specifically the labor, material, services
or equipment provided and for whom the labor, material,
services or equipment was provided and must state
that the demand for payment is being made directly
to the general contractor and its payment bond surety
and payment is sought from them.
Georgia law suggests notice is from the
time of receipt not mailing so do not wait until the
last day to mail the written notice.
On public projects in the State of Georgia,
the statute requires the general contractor to file
a Notice of Commencement.
On Georgia public work projects, a subcontractor or
supplier who does not have a direct contractual relationship
with the general contractor must give notice within
ninety days following the last supply of labor and
give notice within ninety days following the last
supply of labor and materials to the general contractor.
This notice must be written and sent by certified
or registered mail. The notice must state the party
has not been paid and seeks payment from the general
contractor as a claim on its payment bond, state the
amount owed and state the name of the party that received
the labor or materials. There is some suggestion that
if a notice of commencement was filed by the general
contractor and a notice to contractor correctly provided
by the lower tier subcontractor or supplier that this
post performance notice is not required. The better
policy is always to send out this demand letter to
the general contractor. You must submit your own notice
letter and may not rely upon the claim of another
to preserve your claim.
Under Georgia law, a broader base of suppliers
and subcontractors are protected than under the Miller
Act. The Georgia Little Miller Act protects subcontractors
and suppliers to second tier subcontractors. The Federal
Miller Act does not allow bond claims by these entities.
Notice of Commencement
If a notice of commencement was filed by
the contractor then the second tier subcontractor/material
suppliers must comply with the notice to contractor
statutory requirements previously set forth in this
outline. If the second tier subcontractor/materialman
properly responds to the notice of commencement with
a notice to contractor, the 90-day notice is not required.
It appears that on a public project that the notice
to contractor need not be sent to the owner. However,
the suggestion is that it be sent anyway.
The Miller Act (Federal projects)
The Miller Act compreses the federal statutory
provisions requiring contractors to provide payment
bonds for the construction, alteration or repair of
any public work of the United States. 40 U.S.C. Section
270a et seq. Only those parties have a direct contractual
relationship with the general contractor or with a
subcontractor who has a contract relation directly
with the general contractor are protected by the Miller
On Miller Act projects, those subcontractors
and suppliers without a contract with the general
contractor must provide by written notice sent by
registered mail (the statute specifically states registered
mail) a demand for payment to the general contractor.
This notice and demand must state the amount owed,
identify the party to whom the labor or material was
provided and demand payment from the general contractor
and its surety. A Miller Act claim must be brought
within one year of your providing labor or material
to the project.