The drywall sub who finishes a wing of a county courthouse and never sees the last two invoices paid learns an unwelcome fact of public construction fast: there is no lien to file. On a private job, unpaid work gives a subcontractor a claim against the building itself, leverage strong enough that owners return calls. On a public job that door is welded shut. You cannot lien a courthouse. Government property is exempt from mechanic’s liens almost everywhere, which means the sharpest collection tool in the trade simply does not exist on the projects many subs consider the safest work they can get.
What exists instead is a bond. And a clock.
The Substitute the Law Built
Congress recognized the problem more than a century ago and answered it with a statutory trade: subs and suppliers give up lien rights on federal work, and in exchange the prime contractor must post security they can claim against. According to The Miller Act (40 U.S.C. ยง 3131), before a federal construction contract of more than $100,000 is awarded, the contractor must furnish a performance bond and a payment bond; in current practice the Federal Acquisition Regulation applies that requirement at $150,000, an inflation-adjusted threshold. The performance bond protects the government. The payment bond protects the people the government never signed a contract with, meaning the subcontractors and suppliers underneath the prime.
States copied the model. Nearly every state has a so-called little Miller Act covering state and municipal work, and the family resemblance is real, but the details are not uniform. Thresholds differ. Notice periods differ, sometimes dramatically, and so does who counts as a protected claimant. A supplier who knows the federal rules cold can still lose a claim on a city job by assuming the state statute works the same way.
One habit separates subs who recover from subs who don’t: getting a copy of the bond before mobilizing. On federal projects the contracting agency will provide it on request, and most states have a similar mechanism. The document names the surety, states the bond amount, and confirms the thing actually exists, which is worth knowing before the first delivery rather than after the third unpaid invoice.
Who the Bond Protects, and Where the Line Falls
A payment bond covers labor and materials actually furnished to the bonded project. That phrase does a lot of work. It generally includes first-tier subcontractors and suppliers who dealt directly with the prime, and it usually reaches one tier further down, to subs and suppliers who contracted with a first-tier sub. Below that, coverage typically runs out. A supplier to a supplier is often too remote to claim, no matter how legitimate the debt.
The remedy is also narrower than a lien in kind. Lost profit on work never performed is generally outside the bond. Whether retainage and delay-related costs are recoverable varies by statute and by the bond’s own language, so the claim paperwork deserves more care than a routine collections letter.
The red flags that a claim may be coming are ordinary ones. Pay applications that once cleared in thirty days start taking sixty. Change orders sit unsigned. The prime starts disputing quantities it never questioned before, or retainage that should have released after substantial completion doesn’t. None of that proves default. All of it should send someone to the calendar, because this protection has an expiration date.
The Clock Nobody Extends
Every payment bond regime runs on deadlines counted from the last day a claimant furnished labor or materials to the project. Not the invoice date. Not the date the check bounced. The last day of furnishing.
For claimants without a direct contract with the prime, federal law adds a formal step: written notice to the prime contractor, within a fixed window after last furnishing, stating the amount claimed and the party the work was done for. State statutes impose their own notice rules, and some require preliminary notices near the start of the job just to preserve the right to claim at all. Miss the window and the claim is not weakened. It is gone. Courts tend to enforce these deadlines with very little sympathy, and a sub who spent months negotiating in good faith while the clock ran gets the same answer as one who never knew the deadline existed.
Proper notice is unglamorous but specific: identify the project, the prime contractor, the party you contracted with, the labor or materials furnished, and the amount owed, then serve it by a method that produces proof of delivery. A phone call does not count. An email often doesn’t either, depending on the statute. One caution worth flagging: returning to the site for warranty or punch-list touch-ups frequently does not restart the furnishing clock, so counting deadlines from a corrective visit is a common and expensive mistake.
After Notice, the Surety Takes the File
Serving notice preserves the claim. Collecting on it means presenting the claim to the surety, usually with the subcontract, invoices, delivery tickets, and payment history attached. The surety then investigates, and this is where expectations need adjusting: a surety is not an insurer paying on a phone call. It will ask the prime for its side, scrutinize backcharges and offsets, and it may pay in full, negotiate a compromise, deny outright, or simply request more documentation. For readers trying to understand the instrument before they ever have to claim against one, one national surety provider explains what a payment bond is and how claims against one proceed.
If the surety denies or stalls, the remaining remedy is suit on the bond, and that too carries a statutory deadline measured from last furnishing. A construction attorney earns the fee at two moments: reviewing the notice before it goes out, and moving quickly once a denial arrives.
Before the First Truck Rolls
The claim process works best for people who prepared for it back when everyone was still friendly. Request the bond and verify the surety before mobilizing. Get scope, schedule, and payment terms in writing, because the surety will eventually ask for all of it. Log the last furnishing date on every project and calendar the notice and suit deadlines from that date, under the statute that actually governs the job, federal or state.
None of that is paranoia. It is the price of working on property you can never lien, and it is far cheaper than learning the rules after the window has closed.
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