U.S. Code » Title 40 » Subtitle SUBTITLE II— PUBLIC BUILDINGS AND WORKS › Part PART A— GENERAL › Chapter CHAPTER 31— GENERAL › Subchapter SUBCHAPTER III— BONDS

40 U.S.C. § 3131

Bonds of contractors of public buildings or works

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(a)Definition.—In this subchapter, the term “contractor” means a person awarded a contract described in subsection (b).(b)Type of Bonds Required.—Before any contract of more than $100,000 is awarded for the construction, alteration, or repair of any public building or public work of the Federal Government, a person must furnish to the Government the following bonds, which become binding when the contract is awarded:(1)Performance bond.—A performance bond with a surety satisfactory to the officer awarding the contract, and in an amount the officer considers adequate, for the protection of the Government.(2)Payment bond.—A payment bond with a surety satisfactory to the officer for the protection of all persons supplying labor and material in carrying out the work provided for in the contract for the use of each person. The amount of the payment bond shall equal the total amount payable by the terms of the contract unless the officer awarding the contract determines, in a writing supported by specific findings, that a payment bond in that amount is impractical, in which case the contracting officer shall set the amount of the payment bond. The amount of the payment bond shall not be less than the amount of the performance bond.(c)Coverage for Taxes in Performance Bond.—(1)In general.—Every performance bond required under this section specifically shall provide coverage for taxes the Government imposes which are collected, deducted, or withheld from wages the contractor pays in carrying out the contract with respect to which the bond is furnished.(2)Notice.—The Government shall give the surety on the bond written notice, with respect to any unpaid taxes attributable to any period, within 90 days after the date when the contractor files a return for the period, except that notice must be given no later than 180 days from the date when a return for the period was required to be filed under the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.).(3)Civil action.—The Government may not bring a civil action on the bond for the taxes—(A) unless notice is given as provided in this subsection; and(B) more than one year after the day on which notice is given.(d)Waiver of Bonds for Contracts Performed in Foreign Countries.—A contracting officer may waive the requirement of a performance bond and payment bond for work under a contract that is to be performed in a foreign country if the officer finds that it is impracticable for the contractor to furnish the bonds.(e)Authority To Require Additional Bonds.—This section does not limit the authority of a contracting officer to require a performance bond or other security in addition to those, or in cases other than the cases, specified in subsection (b).(Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1147; Pub. L. 109–284, § 6(8), Sept. 27, 2006, 120 Stat. 1213.)

Historical and Revision Notes

Revised

Section

Source (U.S. Code)

Source (Statutes at Large)

3131(a)

40:270a(a) (words before cl. (1) related to definition).

Aug. 24, 1935, ch. 642, § 1(a)–(c), 49 Stat. 793; Pub. L. 95–585, Nov. 2, 1978, 92 Stat. 2484; Pub. L. 103–355, title IV, § 4104(b)(1)(B), Oct. 13, 1994, 108 Stat. 3342; Pub. L. 106–49, § 2(a), Aug. 17, 1999, 113 Stat. 231.

 

40:270d.

Aug. 24, 1935, ch. 642, § 4, 49 Stat. 794.

3131(b)

40:270a(a) (words before cl. (1) related to furnishing bond), (1), (2).

 

40:270d–1.

Aug. 24, 1935, ch. 642, § 5, as added Pub. L. 103–355, title IV, § 4104(b)(1)(A), Oct. 13, 1994, 108 Stat. 3341.

3131(c)

40:270a(d).

Aug. 24, 1935, ch. 642, § 1(d), as added Pub. L. 89–719, title I, § 105(b), Nov. 2, 1966, 80 Stat. 1139.

3131(d)

40:270a(b).

3131(e)

40:270a(c).

In subsection (a), the text of 40:270d is omitted because of 1:1.

In subsections (b) and (c), the words “or sureties” are omitted because of 1:1.

References in Text

The Internal Revenue Code of 1986, referred to in subsec. (c)(2), is classified to Title 26, Internal Revenue Code.

Editorial NotesAmendments

2006—Subsec. (e). Pub. L. 109–284 substituted “To” for “to” in heading.

Notes of Decisions
Cited in 280 cases (87 in the last 5 years), 2002–2026 · leading case: K-Con, Inc. v. Sec'y of the Army, 908 F.3d 719 (Fed. Cir. 2018).
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K-Con, Inc. v. Sec'y of the Army, 908 F.3d 719 (Fed. Cir. 2018). · cites it 4× “228-15 (emphasis added); see also 40 U.S.C. § 3131 (b) ; FAR 28.102-1(a). Neither contract expressly incorporated this required clause.”
Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176 (9th Cir. 2010). · cites it 2× “Kardan and proposed sureties executed a payment bond to comply with the Miller Act, 40 U.S.C. § 3131 (formerly 40 U.S.C. § 270a(a)), and an FAA officer approved the sureties.”
Hanover Ins. Co. (The) v. United States, 134 Fed. Cl. 51 (Fed. Cl. 2017). · cites it 4× “” 40 U.S.C. § 3131 (b)(1) (2006). 13 Specifically, a performance bond surety “guarantees performance of the contract and completion of the project if the bonded contractor defaults.”
A&C Constr. & Installatio v. Zurich Am. Ins. Com, 963 F.3d 705 (7th Cir. 2020). · cites it 2× “The Miller Act, 40 U.S.C. § 3131 et seq., seeks to protect subcontractors against nonpayment for work performed on federal government construction projects by requiring the prime contractor to provide a payment bond on which the subcontractor can then make a claim for pay- ment.”
Campbell v. Hanover Ins. (In Re ESA Env't Specialists, Inc.), 709 F.3d 388 (4th Cir. 2013). · cites it 4× “Pursuant to the Miller Act, ESA was required to obtain and furnish to the government two types of surety bonds1 as a condition precedent "[b]efore any contract of more than $100,000 [could be] awarded for 1 The surety bonds included performance bonds to protect the govern- ment…”
United States ex rel. Chasney & Co. v. Hartford Accident & Indem. Co., 168 F. Supp. 3d 824 (D. Maryland 2016). · cites it 2× “40 U.S.C. § 3131 (b). “The Miller Act is the modern-day remedy to the historical dilemma faced by contractors and materialmen denied compensation in federal construction projects.”
Nelson Constr. Co. v. United States, 79 Fed. Cl. 81 (Fed. Cl. 2007). · cites it 3× “40 U.S.C. § 3131 (b). First, the contractor must post a “performance bond with a surety .”
Nat'l Am. Ins. v. United States, 498 F.3d 1301 (Fed. Cir. 2007). · cites it 2× “As required by the Miller Act, 40 U.S.C. § 3131 (b), IPBX executed payment and performance bonds in favor of the United States, with NAICO as the surety.”
United Pac. Ins. Co., Reliance Ins. Co., & Reliance Nat'l v. United States, 464 F.3d 1325 (Fed. Cir. 2006). “" 40 U.S.C. § 3131 (b)(2). 3 . Quantum valebant is "[t]he reasonable value of goods and materials.”
S. Elec. Health Fund v. Kelley, 308 F. Supp. 2d 847 (M.D. Tenn. 2003). · cites it 4× “§§ 185 (suits by and against labor organizations) and 1132 (ERISA civil enforcement); and 40 U.S.C. § 3131 (Miller Act). 1 However, the Court is without jurisdiction over the Kelleys d/b/a KTE’s and Cates, Inc.”
Regal Indus. Corp. v. Crum & Forster, Inc., 890 A.2d 395 (Pa. Super. Ct. 2005). · cites it 2× “Appellant contends that the trial court erred in concluding that Appellant’s claims were governed by 40 U.S.C.S. § 3131 , et seq. (“The Miller Act”), which grants exclusive jurisdiction over this matter to the federal courts.”
United States Ex Rel. MPA Constr., Inc. v. XL Specialty Ins., 349 F. Supp. 2d 934 (D. Maryland 2004). · cites it 2× “Because the prime contract was awarded for the construction of a federal building and exceeded $100,000 in value, Jowett was required by section 3131(b) of the Miller Act, 40 U.S.C. § 3131 (b), 2 to furnish NIH with a pay *936 ment bond.”
Show all 280 citing cases →
— 40 U.S.C. § 3131(b) — 1 case
Lighting & Power Servs., Inc. v. Roberts, 354 F.3d 817 (8th Cir. 2004).
— 40 U.S.C. § 3131(b)(2) — 4 cases
United States ex rel. Tennessee Valley Marble Holding Co. v. Grunley Constr., 433 F. Supp. 2d 104 (D.D.C. 2006).
United States Fire Ins. v. United States, 61 Fed. Cl. 494 (Fed. Cl. 2004).
Larson v. Granite Re, Inc., 532 F.3d 724 (8th Cir. 2008).
Us Ex Rel. Tenn. Valley Marble v. Grunley Const., 433 F. Supp. 2d 104 (D.D.C. 2006).
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