The Miller Act and state Little Miller Acts

Why public work needs it

On private work, an unpaid subcontractor or supplier can usually file a mechanics' lien against the property. Federal property cannot be liened. The payment bond gives those subs and suppliers something to claim against instead, and the performance bond protects the government if the contractor does not finish. See bid bond vs performance bond vs payment bond for how the three bonds differ.

What the statute requires

From 40 U.S.C. 3131, in our words:

• The bonds apply to contracts for the construction, alteration or repair of a public building or public work of the federal government, above a dollar threshold, and must be furnished before the contract is awarded.
• Performance bond: with a surety the contracting officer accepts, in an amount the officer considers adequate.
• Payment bond: for the protection of everyone supplying labor and material for the work. Its amount equals the total amount payable under the contract, unless the officer finds in writing that this is impractical and sets another amount. It may not be less than the performance bond.

The threshold. The statute text reads "more than $100,000". FAR 28.102-1, as shown on acquisition.gov on 7 Nov 2026, states the bond requirement for construction contracts exceeding $150,000. Federal acquisition thresholds are adjusted over time, so take the figure from the current FAR and the solicitation in front of you, not from a study guide. For smaller contracts, the statute (40 U.S.C. 3132) has the FAR provide alternative payment protections, and FAR 28.102-1 describes the contracting officer choosing among them for a lower band of contract values.

Who can claim on the payment bond

From 40 U.S.C. 3133, in our words:

• Someone with a contract directly with the prime contractor (a first-tier sub or supplier) who has not been paid in full within 90 days after its last labor or material may sue on the payment bond.
• Someone with a contract with a subcontractor but none with the prime (a second-tier sub or supplier) may sue only after giving the prime contractor written notice within 90 days from its last labor or material. The notice must state the amount claimed with substantial accuracy and who the labor or material was for, and be delivered by a method that gives third-party proof of delivery, or as a summons may be served.
• Further down the chain, the statute gives no right of its own. Courts have generally read it to stop at the second tier, so a supplier to a supplier is usually outside it.

Other points from the same section:

• Suit must be brought no later than one year after the claimant's last labor or material.
• It is brought in federal district court for the district where the contract was performed, in the name of the United States for the use of the claimant.
• A waiver of the right to sue on the payment bond is void unless it is in writing, signed by the claimant, and signed after the claimant has furnished labor or material for the work. A waiver signed in the subcontract before any work does not count.
• A claimant who swears it is unpaid can get a certified copy of the bond and contract from the agency.

A worked date count with invented dates

A second-tier supplier, selling to an electrical sub, makes its last delivery to a federal job on 10 March and is not paid.

• 90 days from 10 March: 21 days to the end of March, 30 in April, 31 in May, then 8 in June. 21 + 30 + 31 + 8 = 90, so the count lands on 8 June.
• Check by counting back: 8 June less 8 days is 31 May, less 31 is 30 April, less 30 is 31 March, less 21 is 10 March.
• Suit deadline: one year after the last delivery, 10 March of the next year.

Send the notice well before the last day. How a court counts the first and last day is a legal question, and late notice can lose the claim.

State Little Miller Acts

States have their own bond laws for state, county, city and school district work. They usually follow the same idea: payment and performance bonds on public contracts above a threshold, with claim rights for subs and suppliers. The thresholds, notice periods, who may claim, how far down the chain rights reach and the suit deadlines differ from state to state, and some local agencies add their own requirements. Read the statute and the bond for the project, and never carry one state's numbers to another.

Common mix-ups

• Filing a lien on federal property. The payment bond takes the place of lien rights.
• Quoting the threshold from memory. The statute text and the current FAR show different figures. Use the current FAR and the solicitation.
• Treating first and second tier the same. Only the second tier must give the 90-day written notice to the prime.
• Signing away bond rights before work starts. A waiver counts only if signed after furnishing labor or material.
• Assuming a state copies the federal rules. Each Little Miller Act is its own law.

On the NASCLA exam

The bulletin lists subject areas, not topics. We place bonds and public contracting under Procurement and Contracting Requirements, 31 of the 115 scored questions. The NASCLA Contractors Guide to Business, Law and Project Management fits by its title. Because the exam is used in many states, expect general principles rather than one state's deadlines.

Practice it

Read lien waivers for the private side of payment rights, and Davis-Bacon prevailing wage for the other federal rule that comes with federal construction.

Take the free 10-question check

Start the free 10-question check. It is weighted to the twelve NASCLA subject areas, needs no signup and explains every answer, so you see which area to study first.

The NASCLA Commercial course has a lesson for each of the 12 subject areas that shows which listed reference to open and how to apply it, original practice questions with every answer worked, and four timed practice exams of 115 questions on a 330-minute clock. Your scores come back by subject area, so you know where the next study hour goes. See the course.

Not affiliated with or endorsed by NASCLA or PSI. NASCLA and PSI are named only to identify the exam and its test vendor.

Sources

Show the list

• 40 U.S.C. 3131, Bonds of contractors of public buildings or works, Legal Information Institute. Retrieved 7 Nov 2026.
• 40 U.S.C. 3132, Alternatives to payment bonds provided by Federal Acquisition Regulation, Legal Information Institute. Retrieved 7 Nov 2026.
• 40 U.S.C. 3133, Rights of persons furnishing labor or material, Legal Information Institute. Retrieved 7 Nov 2026.
• FAR 28.102-1, General, acquisition.gov. Retrieved 7 Nov 2026.
• PSI Candidate Information Bulletin 1458, content outline and reference list, updated 7 Jul 2026. Retrieved 5 Nov 2026.
• The date example uses invented dates. State laws are described in general only.