O.C.G.A.
O.C.G.A.

O.C.G.A. § 36-91-90 (2019)

Requirement for payment bonds

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
Find cases: SyfertCases citing this section GA-LEGlegis.ga.gov (official) JustiaJustia CornellLII Search CasesGoogle Scholar

Payment bonds shall be required for all public works construction contracts subject to the requirements of this chapter with an estimated contract amount greater than $100,000.00; provided, however, that a governmental entity may require a payment bond for public works construction contracts that are estimated at $100,000.00 or less. No public works construction contract requiring a payment bond shall be valid for any purpose, unless the contractor shall give such payment bond; provided, however, that, in lieu of such payment bond, the governmental entity, in its discretion, may accept a cashier’s check, certified check, or cash for the use and protection of all subcontractors

and all persons supplying labor, materials, machinery, and equipment in the prosecution of work provided in the contract. The payment bond or other security accepted in lieu of a payment bond shall be in the amount of at least the total amount payable by the terms of the initial contract and shall be increased if requested by the governmental entity as the contract amount is increased.

History

Code 1981, § 36-91-70, enacted by Ga. L. 2000, p. 498, § 1; Code 1981, § 36-91-90, as redesignated by Ga. L. 2001, p. 820, § 12.

Annotations

Law reviews. - For survey article on

construction law, see 59 Mercer L. Rev. 55 (2007) and 60 Mercer L. Rev. 59 (2008). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015).

JUDICIAL DECISIONS Bond was adequate remedy at law for subcontractor on school project. - When a subcontractor on a school district’s high school project had a remedy against the general contractor on the general contractor’s performance bond under O.C.G.A. § 36-91-90, this legal remedy was adequate and precluded the subcontractor from asserting an equitable lien against the school district. McArthur Elec., Inc. v. Cobb County Sch. Dist., 281 Ga. 773, 642 S.E.2d 830 (2007). Subcontractor, that received a transfer of funds by or on behalf of the debtor as the general contractor, argued its potential claim under O.C.G.A. § 36-91-93 of the Georgia Little Miller Act against the payment bond precluded the bankruptcy trustee from avoiding the transfer as a preference under 11 U.S.C. § 547, as constituting contemporaneous new value. The subcontractor also argued the funds were held in constructive trust, were earmarked, or were paid in the ordinary course of business. Watts v. Pride Util. Constr., Inc. (In re Sudco, Inc.), No. 04-17205-WHD, 2007 Bankr. LEXIS 3730 (Bankr. N.D. Ga. Sept. 27, 2007). Compliance with payment bond requirements. - When the general contractor failed to pay the subcontractor for the subcontractor’s work on a city project and the surety was insolvent, and the subcontractor sued the general contractor and the city for the subcontractor’s work, the trial court properly granted summary judgment in favor of the city because the

city complied with the payment bond requirements, and the subcontractor was limited to the exclusive remedy set forth in Georgia’s payment bond statutes, O.C.G.A. §§ 36-91-90 and 36-91-91. J. Squared Plumbing Company, Inc. v. City of Atlanta, 337 Ga. App. 229, 786 S.E.2d 894 (2016). Constructive trust created. - Constructive trust is created in favor of a subcontractor over funds paid by the owner of property to the contractor when the project is a public works project and the subcontractor enjoys no lien rights, but is entitled to file a claim against a payment bond in accordance with the Georgia Little Miller Act, O.C.G.A. § 36-91-90 et seq. Watts v. Pride Util. Constr., Inc. (In re Sudco, Inc.), No. 04-17205-WHD, 2007 Bankr. LEXIS 3730 (Bankr. N.D. Ga. Sept. 27, 2007). Emergency exception. - City was not required to obtain a payment bond in compliance with O.C.G.A. § 36-91-90 because the requirement did not apply to emergency projects, O.C.G.A. § 36-91-22(e); the city’s description in the city’s minutes of the ‘‘emergency replacement of a 10-inch sanitary sewer main on Embassy Drive’’ was sufficient to describe the nature of the emergency. City of College Park v. Sekisui SPR Ams., LLC, 331 Ga. App. 404, 771 S.E.2d 101 (2015), cert. denied, No. S15C1141, 2015 Ga. LEXIS 471 (Ga. 2015). Cited in Complete Wiring Solutions, LLC v. Astra Group, Inc., 335 Ga. App. 723, 781 S.E.2d 597 (2016).

Notes of Decisions
Cited in 10 cases (1 in the last 5 years), 2007–2022 · leading case: McArthur Elec., Inc. v. Cobb Cnty. Sch. Dist., 642 S.E.2d 830 (Ga. 2007).
Sort: Relevance Newest Treatment
McArthur Elec., Inc. v. Cobb Cnty. Sch. Dist., 642 S.E.2d 830 (Ga. 2007). · cites it 4× “Moreover, if the requisite payment bond is not available to the subcontractors or materialmen on a public works project, they are given the right to proceed directly against the owner. If a payment bond ... is not taken in the manner and form required in this article, the…”
City of Coll. Park v. Sekisui SPR Americas, LLC, 771 S.E.2d 101 (Ga. Ct. App. 2015). · cites it 12× “Sekisui SPR Americas, LLC, a subcontractor that worked on a sewer project for the City of College Park (“the City”), sued the City when the general contractor failed to pay Sekisui for work performed, alleging that the City was liable because it had failed to ensure the *405…”
Bd. of Regents of Univ. Sys. v. Brooks, 749 S.E.2d 23 (Ga. Ct. App. 2013). · cites it 2× “See OCGA § 36-91-90. For local government public works projects, the term “public works construction” means the building, altering, repairing, improving, or demolishing of any public structure or building .”
Complete Wiring Solutions, LLC v. Astra Grp., Inc., 781 S.E.2d 597 (Ga. Ct. App. 2016). · cites it 2× “(BWP), second tier subcontractors on a construction project on public property, filed a complaint pursuant to OCGA §§ 36-91-90 *724 to 36-91-95 seeking to recover against a payment bond for amounts due for labor and materials provided on the project.”
City of Coll. Park v. Georgia Interlocal Risk Mgmt. Agency, 721 S.E.2d 97 (Ga. Ct. App. 2011). · cites it 2× “, OCGA §§ 36-91-90 (setting forth requirement for payment bond or other security acceptable in lieu of a payment bond); 36-91-91 (“If a payment bond or security deposit is not taken in the manner and form required in this article, the corporation or body for which work is done…”
City of Coll. Park, Georgia v. Sekisui Spr Americas, LLC (Ga. Ct. App. 2015). · cites it 7× “In addition to raising a cause of action under OCGA § 36-91-90 et seq., Sekisui also raised claims of quantum merit, unjust enrichment, implied obligation to pay, and sought attorney fees.”
J. Squared Plumbing Co., Inc. v. City of Atlanta, 786 S.E.2d 894 (Ga. Ct. App. 2016). · cites it 4× “Squared was limited to the exclusive remedy set forth in Georgia’s payment bond statutes — OCGA §§ 36-91-90 and 36-91-91. J. Squared appeals, contending that (1) the payment bond statutes do not bar it from recovering for the value of its work from the City, and (2) the City’s…”
Clint Larkin v. Madison Cnty. Sch. Dist. (Ga. Ct. App. 2022). · cites it 2× “, sued the District and Larkin in 2016, alleging that Larkin had contracted with the District to construct a new wrestling building at a high school sports complex, that the District had failed to require Larkin to post a payment bond as required by OCGA § 36-91-90, and that…”
Complete Wiring Solutions, LLC F/K/A Rutledge & Sons Elec. Co., LLC v. Astra Grp., Inc. (Ga. Ct. App. 2016). · cites it 2× “(BWP), second tier subcontractors on a construction project on public property, filed a complaint pursuant to OCGA §§ 36-91-90 to 36-91-95 seeking to recover against a payment bond for amounts due for labor and materials provided on the project.”
Bd. of Regents of the Univ. Sys. of Georgia v. James Brooks (Ga. Ct. App. 2013). · cites it 2× “See OCGA § 36-91-90. For local government public works projects, the term “public works construction” means the building, altering, repairing, improving, demolishing of any public structure or building .”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.