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Payment Bonds on Federal Construction Projects – Last Date of Work

By Christopher Strang and  Jennifer Lynn

When did you last work, for the purposes of filing a timely payment bond claim on a federal public construction project?

The Miller Act, which governs federal construction project payment bond claims, provides that suit be brought within one-year from the day on “which the last of the labor was performed or material was supplied by the person bringing the action.” 40 U.S.C. § 3133(b)(4). The same date is used to determine the 90-day notice requirement for sub-subcontractors and material suppliers. What constitutes labor or material supplied in the context of contract work is often not clear; work performed prior to a subcontractor’s substantial completion clearly counts. Warranty work that involves coming back to repair defects in the subcontractor’s own work generally does not. However, “punch list” items may sometimes include both incomplete contract work (which generally counts) and defective work performed that requires correction (which generally does not count). Sometimes the distinction is not entirely clear, and courts struggle to find a bright line rule on this point.

Massachusetts Federal Court Standard for “Last Date of Work” on a Miller Act Claim

The Massachusetts’ standard is that the one-year statute of limitations will begin to run on the last date on which materials or labor were supplied on the project for the purpose of completing subcontract work. U.S. for Use & Benefit of Lab. Furniture Co. v. Reliance Ins. Co., 274 F.Supp. 377, 379-80 (D.Mass. 1967) (emphasis added). Corrective work, which is performed for the purpose of making repairs following the inspection of the project, will not extend the statutory deadlines. D.D.S. Industries v. C.T.S., Inc., 2012 WL 2178962, *1 (Mass.Super. June 13, 2012) (making clear that the date of substantial completion is not the relevant date).

For material suppliers, the “date of last work” is the day of last supplying material on the project. The First Circuit, which encompasses Massachusetts federal courts, ruled that where a supplier provides material on a single, federally-owned project, all material supplied will be covered by that project bond.  This is true regardless of whether the material supplier and general contractor treat each delivery of project material as part of one contract or under distinct and separate contracts. G.E. Supply v. C & G Enterprises, Inc., 212 F.3d 14, 18 (1st Cir. 2000).

Massachusetts considers punch list work provided as a requirement for completion of the project to be contract work; whereas punch list work provided as a correction, repair, or as clean up, is not contract work and will not prevent the statutory deadlines from running. U.S. for Use & Benefit of Lab. Furniture Co. citing U.S. for Use and Benefit of Austin v. Western Elec. Co., 337 F.2d 568, 572-75 (9th Cir. 1964). The value of materials supplied is not relevant in determining whether work was provided to complete the contract or as corrective work. Labor and materials supplied which are ultimately not used in the project still count as “work,” for statute of limitation purposes, so long as it is toward completion of the contract work. In U.S. for Use & Benefit of Lab. Furniture Co., the court considered replacement of plastic identification buttons on faucets and nozzles in a physics laboratory “corrective” punch-list work and could not extend statutory deadlines. The court weighed the following key factors in reaching this conclusion: (1) the buttons were supplied as replacements for buttons previously provided during the original performance of the subcontract; (2)  seven months passed between when the subcontractor substantially completed work and the installation of replacement buttons; (3) four months elapsed after termination of the subcontractors’ contract until the button replacement; and (4) a demand letter sent to the subcontractor’s surety initiated the replacement work. 

An Alternative Standard for Determining the “Last Date of Work” on a Miller Act Claim

The Fifth Circuit Court of Appeals created a test, which is not the law in Massachusetts at this time, to determine whether labor and material will be considered “contract work” or “corrective work.” The test involves weighing the following factors: (1) the value of the materials, (2) the original contract specifications, (3) the unexpected nature of the work, and (4) the importance of the materials to the operation of the system in which they are used. U.S. for Use of Georgia Elec. Supply Co., Inc. v. U.S. Fidelity & Guaranty Co., 656 F.2d 993, 996 (5th Cir. 1981).[1]

This standard was adopted by the Eleventh Circuit Court of Appeals in Southern Steel Co, Inc. v. United Pacific Ins. Co., 935 F.2d 1201 (11th Cir. 1991). Based on the four above factors, the Court held that work to replace defective locks in a county jail were arguably “contract work” as repair or replacement of defective locks was called for under the original contract; replacement of the locks necessary due to circumstances outside the subcontractor’s control, and were therefore unexpected; that functional locks were deemed very important to operating the jail; and, given the circumstances of the case, the unclear value of the work was immaterial.

Additionally, the Fifth Circuit’s test is applied in Miller Act claims before the District Court for New Jersey. In U.S. v. Fidelity & Deposit Co. of Maryland, the court held that operation and maintenance manuals, provided approximately one year after the other subcontract material and labor, were “contract work” within the meaning of the Miller Act, and therefore tolled the statute of limitations until the date upon which they were provided. 999 F.Supp. 734, 747 (D. NJ 1998). In applying the test from the Fifth Circuit, the court held that the value of the manuals ($5,000) was substantial, regardless of the overall subcontract value ($700,000); that contract specifications specifically provided for the provision of the manuals; that an item containing instructions for repairing equipment does not make that item itself a repair item; and that the manuals were sufficiently important to operating the equipment provided under the contract.

What This Means for Subcontractors and Material Suppliers on Federal Construction Projects in Massachusetts

While the Fifth Circuit’s standard is similar to the standard followed in Massachusetts, it arguably applies a more predictable standard for determining whether the work is “contract work.” The benefit of the four-factor test developed by the Fifth Circuit is that it allows courts to assess standard categories for the work and allows flexibility to value more persuasive factors at a higher value, as opposed to missing or unclear factors. The Fifth Circuit’s test could be adopted by the Massachusetts federal court, as there is currently some ambiguity about what constitutes a date last worked on federal projects remains.

The above information is only meant to provide a general summary regarding rights and obligations for recovering under payment bonds provided on federal public construction projects. Because each project presents a different set of facts, the process and outcome of attempting to recover under a project payment bond will vary depending on the circumstances. If you are uncertain about anything regarding your company’s ability to recover under a payment bond, you should contact Massachusetts construction attorney to ensure the necessary steps are taken to achieve the best possible outcome.

[1] In U.S. for Use of Georgia Elec. Supply Co., Inc. v. U.S. Fidelity & Guaranty Co. the Fifth Circuit Court of Appeals interpreted Georgia state law, the language of which mirrors the language of the Miller Act.