Miller Act Payment Bond Claim Notices: The 90-Day Written Notice, What It Must Say, and the Third-Party Delivery Proof Federal Subcontractors Need

The Miller Act notice requirement

The Miller Act establishes payment bond protections for people who furnish labor or material on covered federal construction projects. For certain subcontractors and suppliers without a direct contract with the prime contractor, a timely written notice is a condition for bringing a payment bond claim.

Under 40 U.S.C. § 3133%20OR%20(granuleid:USC-prelim-title40-section3133)&f=treesort&edition=prelim&num=0&jumpTo=true), a person with a direct contractual relationship with a subcontractor, but no express or implied contract with the contractor that furnished the payment bond, must give written notice to that contractor within 90 days. The rule generally covers second-tier and lower-tier subcontractors and material suppliers that meet this relationship test.

This is a federal statutory notice requirement. It is distinct from state little-Miller-Act statutes, which govern certain state or local public projects and can set different rules. It is also distinct from preliminary notices used to preserve mechanic's lien rights on private projects. Confirm the project type, bond, contract chain, and governing law before applying a notice workflow.

The 90-day notice window

The 90-day period runs from the date the claimant performed the last labor or furnished or supplied the last material for which the claim is made. It is not measured from the prime contractor's last day on the project or from a payment dispute unless that date also matches the claimant's qualifying last work or furnishing date.

Document the applicable date and the basis for it. Keep project records showing the claimant's work or material supply, such as delivery documentation, invoices, time records, and approved work records. These materials support the deadline calculation and help explain which work or supplies the claim covers.

A deadline log should identify the claimant, project, last qualifying work or furnishing date, calculated notice deadline, notice owner, and planned delivery method. Escalate date disputes for legal review rather than relying on an unsupported estimate.

What the written notice must state

The notice must state with substantial accuracy:

• The amount claimed.
• The name of the party to whom the materials were furnished or supplied, or for whom the labor was performed.

The notice must be given to the contractor that furnished the payment bond. The statute does not prescribe a particular form in the cited subsection. The notice record should nevertheless identify the federal project and bond where possible, clearly connect the amount to the unpaid labor or materials, and distinguish the relevant subcontractor or other party in the contractual chain.

Retain the exact final notice sent. A later summary or recreated copy does not establish what the contractor received. Keep the supporting calculation and source records alongside the notice so the amount and named party can be traced to the claim.

Delivery must provide third-party verification

The statute requires service by a method that provides written, third-party verification of delivery to the contractor at a place where the contractor maintains an office or conducts business, or at the contractor's residence. It also permits service in any manner in which a U.S. marshal for the district where the public improvement is located may serve a summons in a civil action.

Registered or Certified Mail can provide third-party delivery records. The statute does not make either postal method the exclusive option. Other methods must meet the statutory standard or qualify under the summons-service provision. Confirm that the chosen method, recipient, and address satisfy the applicable requirement.

A return receipt or delivery tracking record can connect a notice to a delivery date and address. The proof should be retained with the notice itself. Postal records alone do not establish what the envelope contained or whether its content met the statutory requirements.

The separate one-year suit deadline

The 90-day notice period is not the deadline for filing suit. Separately, the Miller Act requires an action to be brought no later than one year after the day the claimant performed its last labor or supplied its last material. This suit-deadline window is measured from the claimant's own last qualifying work or material supply, not from the date the written notice was delivered.

Track the notice deadline and the one-year suit deadline as separate obligations. Delivery of a notice does not extend the suit deadline. Because claim scope and the relevant last-work date can affect the calculation, obtain qualified legal guidance on a specific claim.

First-tier claimants have a different notice rule

A claimant with a direct contractual relationship with the prime contractor is treated differently under the statute. The separate written notice requirement in § 3133(b)(2) applies to a claimant that has a contract with a subcontractor but no contract with the contractor furnishing the bond.

For first-tier claimants, § 3133(b)(1) states that a person who has not been paid in full within 90 days after performing the last labor or furnishing the last material for the claim may bring an action on the payment bond. That 90-day nonpayment condition is not the same as the lower-tier written notice requirement. Contract terms, bond language, and other legal requirements still warrant review.

Practical evidence checklist

Keep a single, controlled file for each claim notice. The file should include:

• The final notice text, including the claimed amount and named party.
• The claimant's work or material records supporting the claim and deadline calculation.
• The selected mailing or service method and the basis for treating it as compliant.
• The contractor's delivery address and the source used to verify it.
• Proof of mailing or service, tracking history, and return receipt or other delivery verification.
• The payment bond and relevant contract-chain records.
• A record of the person who approved and issued the notice.
• A separate calendar entry for the one-year suit deadline.

This evidence structure links the legal requirement, notice content, delivery event, and deadline calculation. It supports a clearer audit trail for legal notices and reduces the need to reconstruct compliance evidence later.

Issuance and record controls

A controlled notice workflow establishes the applicable requirement, verifies the claimant's position in the contract chain, calculates deadlines, approves the notice, confirms the recipient address, and preserves delivery evidence. Each step should have an assigned owner and a retained record.

National Compliance Registry supports compliant notice issuance and evidence record management for organizations that need to maintain accurate, reviewable notice files. See government contracting compliance and compliance services for related information. Where Certified Mail is selected as a delivery method, Certified Mail Labels provides an online mailing option.

This article provides general compliance information, not legal advice.