A payment bond is the only thing standing between a subcontractor and a prime contractor who does not pay, because a mechanics lien does not attach to federal property. So the question of exactly who may sue on it is not academic — it is the whole remedy.
The Miller Act answers it in one subsection, and it gives two different answers.
The first tier: you dealt with the prime
40 U.S.C. § 3133(b)(1) creates the right. A person who furnished labor or material in carrying out the work, and who “has not been paid in full within 90 days after the day on which the person did or performed the last of the labor or furnished or supplied the material,” may bring a civil action on the payment bond.
Read what that does and does not require. It requires that you furnished labor or material to the work. It requires 90 days of non-payment measured from your last contribution, not from your invoice date and not from the day the job finished. It does not require you to notify anybody first.
If you contracted directly with the prime contractor, that is your position. The right arises on its own, by the passage of time, and the only thing left to get right is the deadline for suing.
The second tier: you dealt with a subcontractor
This is where the claims are lost.
A claimant who has a direct contractual relationship with a subcontractor of the prime, but no contractual relationship — express or implied — with the prime itself, still has a right of action. But § 3133(b)(2) attaches a condition to it. That claimant must give
“written notice to the contractor within 90 days from the date on which the person did or performed the last of the labor or furnished or supplied the last of the material,”
stating
“with substantial accuracy the amount claimed and the name of the party to whom the material was furnished.”
Three things are worth separating out.
It is a condition, not a formality. Without the notice there is no right of action to bring. The claim does not become harder; it does not exist.
The clock runs from your last work, not from the dispute. A supplier who finishes in March and starts chasing payment in August has often already lost the ability to give the notice, and nothing about the merits of the debt changes that.
It has required content. Two elements — the amount, with substantial accuracy, and the name of the party you furnished to. A notice that says only “we are owed money on this job” has met the deadline and not the statute.
Who is not protected
The statute draws its line at contractual relationship, and that line excludes people who feel like they should be inside it.
Someone further down the chain than a subcontractor — a supplier to a supplier — is outside the two tiers the statute describes. So is anyone whose connection to the job is not the furnishing of labor or material at all. And the prime contractor itself is never a claimant on its own bond: the payment bond exists to protect the people below the prime, not the prime.
The performance bond does not fill this gap either. That bond runs to the Government as obligee, for non-performance. An unpaid supplier is not its beneficiary.
Your rights cannot be signed away in advance
Subcontracts routinely contain waiver language, and on federal work most of it does not do what it appears to do.
Section 3133(c) makes a waiver of the right to sue on the payment bond void unless it satisfies three conditions together: it is in writing, it is signed by the person whose right is waived, and it is
“executed after the person whose right is waived has furnished labor or material.”
The third condition is the one that matters. A waiver buried in a subcontract signed before mobilization fails it by definition — the labor and material had not been furnished yet. Waivers exchanged for progress payments, after the work, are a different question and can be effective.
Where and when suit is brought
Section 3133(b)(3) settles venue: the action is brought in the name of the United States for the use of the claimant, in the district where the contract was to be performed, regardless of the amount in controversy. There is no minimum, and there is no choosing a friendlier district.
The deadline is its own subject and deserves separate attention, because it is short and it is measured from an event most claimants do not think to record.
What this page is about, and what it is not
Everything above is the federal Miller Act, which governs contracts of the Federal Government. State public-works bonds have their own claimant definitions, their own notice rules, and their own deadlines — and while several states track the federal 90-day structure closely, the wording is not identical and the differences decide cases.
This page also does not address performance bond claims, which run to the owner and work nothing like this, or private-project bonds, where the contract documents rather than a statute define who may claim.
