Who may claim on the bond
Under 40 U.S.C. 3133(b)(2), Miller Act payment bond rights run to:
- first-tier claimants, who contract directly with the prime contractor;
- second-tier claimants, who contract directly with a subcontractor but have no contract with the prime.
There is no right below the second tier. A company that sells lumber to a supplier, which sells to a subcontractor, is a supplier to a supplier and has no claim. Notice cannot create a right it lacks; coverage is set by tier, not by incorporation. Suits are on the payment bond, not against the government.
The 90-day notice
A second-tier claimant must give written notice to the prime contractor within 90 days from the date it performed its last labor or supplied its last material.
- Sending notice to the owner or government is a common error.
- Counting from project completion or final payment is wrong; the clock runs from the claimant's own last furnishing. 60 and 120 days are wrong periods.
The one-year suit limit
40 U.S.C. 3133(b)(4): suit must be brought no later than one year after the day the claimant last performed labor or supplied material.
The trap is running the year from final completion, acceptance or final payment. The 1999 amendments replaced the old final-settlement trigger.
Worked examples
Second-tier supplier, last material March 10, 2026:
- Notice: March has 21 days left after the 10th, April adds 30 (51), May adds 31 (82), 8 more days reach June 8, 2026 (90).
- Suit: March 10, 2027.
Subcontractor, last labor August 15, 2025, project accepted March 2026:
- Suit deadline: August 15, 2026, one year after its own last labor.
- November 13, 2025 is 90 days after the last labor: when a first-tier claimant may begin suit, not the deadline.
Where and in whose name
40 U.S.C. 3133(b)(3): the suit is brought in the name of the United States for the use of the claimant, in the U.S. District Court for any district in which the contract was to be performed and executed, regardless of the amount in controversy.
State court, the Court of Federal Claims and the contractor's home district are all wrong venues. There is no minimum amount in controversy.