Government Construction Contracting Part #5 – Florida’s Little Miller Act – Subcontractor’s and Sub-Subcontractor’s Rights and Responsibilities under Florida’s Little Miller Act

Government Construction Contracting Part #5 – Florida’s Little Miller Act – Subcontractor’s and Sub-Subcontractor’s Rights and Responsibilities under Florida’s Little Miller Act

By James M. Gonzalez May 10, 2022 Posted in Construction Law

Next in our series regarding government public works and improvement projects, we will discuss subcontractor’s and sub-subcontractor’s rights and responsibilities to secure and maintain protection under a bond issued for a Florida public works, building, and/or land improvement project. Recall in the previous segment, we discussed that a Florida public project with a contract that is more than $100,000 typically requires the contractor to obtain and record a payment and performance bond. Subcontractors (directly contracting with the prime contractor) and sub-subcontractors (not directly contracting with the prime contractor) may be protected under this payment bond. The following provides insight into a subcontractor and sub-subcontractor’s responsibilities in furtherance of protecting their rights under the bond.

a. Subcontractor and Sub-subcontractor’s Right to Information

Similar to the Miller Act, a person or entity performing work on a Florida government project may seek information regarding the contract and bond from the state contracting agency. The agency is required to provide this information to the requesting entity. If there is an issue with payment for work performed or materials provided, the subcontractor, material supplier, or laborer may have a cause of action under Florida’s Little Miller Act – against both the contractor and the surety issuing the bond – for the amount due to them, including interest, under the contract. Note that Florida Statute §255.05(1)(c) expressly excludes the state agency from any such cause of action.

b. Sub-Subcontractor Rights and Responsibilities – Written Notice of Commencement Requirement

Importantly, a sub-subcontractor, that does not have a direct contract with the contractor, is required to serve the contractor with a written notice that they will look to the bond for protection. This notice must be provided before beginning, but not later than 45 days after commencing its work under the contract. Failure to provide this notice – if required – is a complete bar to a sub-subcontractor’s ability to seek recovery under the statute.

c. Sub-Subcontractor Rights and Responsibilities – Serving a Notice of Non-Payment

Next, should the subcontractor fail to provide payment for labor, services, or materials furnished on the project, the sub-subcontracting entity is required to serve a written notice of nonpayment on the contractor and on the surety prior to seeking a cause of action under the statute. Section 255.05(2)(a)(2) provides the following requirements for the Notice of Non-Payment:

  1. the notice of nonpayment shall be under oath;
  2. served during the progress of the work or thereafter;
    1. but may not be served earlier than 45 days after the first furnishing of labor, services, or materials by the claimant; or
    2. later than 90 days after the final furnishing of the labor, services, or materials by the claimant, or
    3. with respect to rental equipment, later than 90 days after the date that the rental equipment was last on the job site available for use.

Florida Statute §255.05(2)(a)(2) provides that the Notice of Non-Payment must be in substantially the following form:

NOTICE OF NONPAYMENT

To:   (Name of contractor and address)  

  (Name of surety and address)  

The undersigned claimant notifies you that:

     1. Claimant has furnished   (describe labor, services, or materials)   for the improvement of the real property identified as   (property description)  . The corresponding amount unpaid to date is $ , of which $  is unpaid retainage.

     2. Claimant has been paid to date the amount of $  for previously furnishing   (describe labor, services, or materials)   for this improvement.

     3. Claimant expects to furnish   (describe labor, services, or materials)   for this improvement in the future (if known), and the corresponding amount expected to become due is $  (if known).

I declare that I have read the foregoing Notice of Nonpayment and that the facts stated in it are true to the best of my knowledge and belief.

DATED on    ,   .

  (signature and address of claimant)  

STATE OF FLORIDA

COUNTY OF   

The foregoing instrument was sworn to (or affirmed) and subscribed before me this   day of  ,   (year)  , by   (name of signatory)  .

    (Signature of Notary Public – State of Florida)  

    (Print, Type, or Stamp Commissioned Name of Notary Public)  

Personally Known    OR Produced Identification   

Type of Identification Produced 

Importantly, a failure to timely serve this Notice of Non-Payment is a direct bar against a sub-subcontractor’s right to a cause of action under this statute. Additionally, an action for recovery under the payment bond must be brought against the contractor or the surety on the payment bond within one year after performance of the labor or completion of delivery of the materials or supplies. Fla. Stat. §255.05(10).

d. Service Requirements for Notices under the Little Miller Act

All notices referenced in Fla. Stat. §255.05 must be served in accordance with §713.18, Florida Statutes; which provides that service must be made via one of the following methods:

  1. By actual delivery to the person to be served (to an officer, director, agent, or member/manager if serving upon an entity);
  2. By common carrier delivery service or by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and with evidence of delivery, which may be in an electronic format; or
  3. By posting on the site of the improvement if service as provided by paragraph (a) or paragraph (b) cannot be accomplished.

Florida Statute, §713.18 further provides that service of a preliminary notice to contract under §255.05 is effective as of the date of mailing if: (1) the notice is mailed as set forth in section 3. above, (2) the notice is mailed within 40 days after first furnishing of labor, service or materials, and (3)(a) the person serving the notice maintains a mail log showing the confirmation of the date of mailing, or (3)(b) the person serving the notice maintains electronic tracking records confirming the date of receipt by the USPS.

The time period for service under Florida’s Little Miller Act is measured from “the last day of furnishing labor, services, or materials by the claimant and may not be measured by other standards, such as the issuance of a certificate of occupancy or the issuance of a certificate of substantial completion.” §255.05(2)(a)(2), Fla. Stat.

e. Attorney’s Fees Recovery

Lastly, if an action is brought to enforce a claim against a payment bond under Florida’s Little Miller Act, §255.05(2)(a)(2) provides that the prevailing party is entitled to recovery of attorney’s fees for trial and appeal.

f. Conclusion

In this segment we discussed a subcontractor and sub-subcontractor’s rights and responsibilities under Florida’s Little Miller Act. Subcontractors and sub-subcontractor’s have a right to obtain information regarding the bonds on a Florida public works project. We also discussed a sub-subcontracting entities’ requirements to provide Notices of Commencement and Notices of Non-Payment as well as the timing and information required to be included in each of these documents. Lastly, we discussed proper service of these documents and the ability to recover attorney’s fees in an action to enforce rights under a bond.

Claims relating to Florida public works projects can be complex. If you are involved in a Florida public project and would like additional information on how to properly protect your interest in such a project, do not hesitate to contact us via the link below.

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