Government Construction Contracting Part #6 – Florida’s Little Miller Act – Contractor’s Protections under the Little Miller Act
By James M. Gonzalez June 8, 2022 Posted in Construction Law Share
As discussed in the previous segment, a subcontractor or sub-subcontractor performing work on a Florida public works, building or land improvement project may seek to enforce its rights under the statute. Such action must be brought within one year of last performance or one year from when they last provided materials or supplies. In this final segment, we will discuss what a contractor (that issued the payment and performance bonds for the Florida public works/building project) can do to protect itself when a sub-subcontractor seeks a claim against the bond.
- Notice of Contest of Claim Against Payment Bond
If a claimant is required to and ultimately provides proper Notice of Non-Payment, the contractor may elect to shorten the timeframe with which a claimant can bring an action to enforce payment under the bond. Florida Statute, §255.05(2)(a)(1) provides that the contractor may elect to shorten the timeframe from one year to sixty (60) days by recording a Notice of Contest of Claim Against Bond. To do so, the claimant must not be furnishing labor, services, or materials on the project anymore and the Notice of Contest must be recorded in the clerk’s office in substantially the following form:
NOTICE OF CONTEST OF CLAIM
AGAINST PAYMENT BOND
To: (Name and address of claimant)
You are notified that the undersigned contests your notice of nonpayment, dated , , and served on the undersigned on , , and that the time within which you may file suit to enforce your claim is limited to 60 days after the date of service of this notice.
DATED on , .
Signed: (Contractor or Attorney)
By recording this Notice of Contest of Claim Against Payment Bond, the contractor is forcing the claimant to institute a suit to enforce their claim against the payment bond within 60 days after service of the Notice of Contest or their claim is automatically extinguished. The contractor is required to serve a copy of the recorded Notice of Contest at the address shown on the Notice of Non-Payment and must certify on the Notice of Contest that they are serving the notice of Contest at such address.
2. Demand for Written Statement of Account
Additionally, when working under these types of bonds, upon receipt of payment, a contractor may serve a written demand for sworn statement of account upon any sub-subcontractor not in direct contract with the contractor. Under Florida Statute, §255.05(8), this demand seeks a written, sworn statement under oath from the sub-subcontractor “showing the nature of the labor or services performed and to be performed, if any; the materials furnished; the materials to be furnished, if known; the amount paid on account to date; the amount due; and the amount to become due, if known, as of the date of the statement.” If properly served upon the claimant, the failure to provide a responsive statement within thirty (30) days of service will deprive the claimant of its rights under the bond.
3. 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.
4. Conclusion
In this final segment discussing Florida’s Little Miller Act, we touched on actions a contractor can do to protect itself when working on a Florida public works, building or land improvement project. We discussed the impact a Notice of Contest can have to shorten the period of time upon which a claimant may seek an action to enforce its bond rights. We also discussed how a failure to respond to a contractor’s demand for sworn statement of account can potentially extinguish a claimant’s right to seek enforcement of its bond claim.
Claims relating to government 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.