40 U.S.C. § 3133

Rights of persons furnishing labor or material

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(a)Right of Person Furnishing Labor or Material to Copy of Bond.—The department secretary or agency head of the contracting agency shall furnish a certified copy of a payment bond and the contract for which it was given to any person applying for a copy who submits an affidavit that the person has supplied labor or material for work described in the contract and payment for the work has not been made or that the person is being sued on the bond. The copy is prima facie evidence of the contents, execution, and delivery of the original. Applicants shall pay any fees the department secretary or agency head of the contracting agency fixes to cover the cost of preparing the certified copy.(b)Right To Bring a Civil Action.—(1)In general.—Every person that has furnished labor or material in carrying out work provided for in a contract for which a payment bond is furnished under section 3131 of this title and that has not been paid in full within 90 days after the day on which the person did or performed the last of the labor or furnished or supplied the material for which the claim is made may bring a civil action on the payment bond for the amount unpaid at the time the civil action is brought and may prosecute the action to final execution and judgment for the amount due.(2)Person having direct contractual relationship with a subcontractor.—A person having a direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor furnishing the payment bond may bring a civil action on the payment bond on giving written notice to the contractor within 90 days from the date on which the person did or performed the last of the labor or furnished or supplied the last of the material for which the claim is made. The action must state with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. The notice shall be served—(A) by any means that provides written, third-party verification of delivery to the contractor at any place the contractor maintains an office or conducts business or at the contractor’s residence; or(B) in any manner in which the United States marshal of the district in which the public improvement is situated by law may serve summons.(3)Venue.—A civil action brought under this subsection must be brought—(A) in the name of the United States for the use of the person bringing the action; and(B) in the United States District Court for any district in which the contract was to be performed and executed, regardless of the amount in controversy.(4)Period in which action must be brought.—An action brought under this subsection must be brought no later than one year after the day on which the last of the labor was performed or material was supplied by the person bringing the action.(5)Liability of federal government.—The Government is not liable for the payment of any costs or expenses of any civil action brought under this subsection.(c)Waiver of Right to Civil Action.—A waiver of the right to bring a civil action on a payment bond required under this subchapter is void unless the waiver is—(1) in writing;(2) signed by the person whose right is waived; and(3) executed after the person whose right is waived has furnished labor or material for use in the performance of the contract.(Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1148; Pub. L. 109–284, § 6(9), (10), Sept. 27, 2006, 120 Stat. 1213.)

Historical and Revision Notes
Revised Section	Source (U.S. Code)	Source (Statutes at Large)
3133(a)	40:270c.	Aug. 24, 1935, ch. 642, § 3, 49 Stat. 794; Pub. L. 86–135, § 2, Aug. 4, 1959, 73 Stat. 279; Pub. L. 98–269, Apr. 18, 1984, 98 Stat. 156.
3133(b)(1), (2)	40:270b(a).	Aug. 24, 1935, ch. 642, § 2(a), (b), 49 Stat. 794; Pub. L. 86–135, § 1, Aug. 4, 1959, 73 Stat. 279; Pub. L. 106–49, § 2(b), Aug. 17, 1999, 113 Stat. 231.
3133(b)(3)– (5)	40:270b(b).
3133(c)	40:270b(c).	Aug. 24, 1935, ch. 642, § 2(c), as added Pub. L. 106–49, § 2(c), Aug. 17, 1999, 113 Stat. 231.

In subsection (b)(1), the words “may bring a civil action” are substituted for “shall have the right to sue” for consistency in the revised title and with other titles of the United States Code. The words “or sums” are omitted because of 1:1.

In subsection (b)(2), the words “to the contractor at any place he maintains an office or conducts his business, or his residence, or in any manner in which the United States marshal of the district in which the public improvement is situated is authorized by law to serve summons” are restated to reflect the probable intent of Congress. See H. Rept. 106–277, Part 1, 106th Cong., 1st Sess., pp. 4, 7.

In subsection (c), the words “bring a civil action” are substituted for “sue” for consistency in the revised title and with other titles of the United States Code.

Editorial NotesAmendments

2006—Subsec. (b). Pub. L. 109–284, § 6(9), substituted “To” for “to” in heading.

Subsec. (c). Pub. L. 109–284, § 6(10), inserted heading.

Notes of Decisions

Cited in 214 cases (64 in the last 5 years), 2003–2026 · leading case: State Constr. Corp. v. Slone Assocs., Inc., 385 F. Supp. 3d 449 (D. Maryland 2019).

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State Constr. Corp. v. Slone Assocs., Inc., 385 F. Supp. 3d 449 (D. Maryland 2019). · cites it 7× “40 U.S.C. § 3133 (b)(2). State Construction did not send any such written notice to Slone.”

United States ex rel. Tusco, Inc. v. Clark Constr. Grp., LLC, 235 F. Supp. 3d 745 (D. Maryland 2016). · cites it 3× “Tus-co’s claims include breach of contract against Clark (Count I); quantum meruit against Clark (Count II); and breach of payment bond in violation of the Miller Act, 40 U.S.C. § 3133 , against Travelers. Clark has moved to dismiss Counts I and II, and Travelers has moved to…”

United States ex rel. Air Control Tech., Inc. v. Pre Con Indus., Inc., 720 F.3d 1174 (9th Cir. 2013). · cites it 3× “Any person who has supplied labor or material on the project may bring a civil action on the payment bond against the general contractor, see 40 U.S.C. § 3133 (b)(1), but the action “must be brought no later than one year after the day on which the last of the labor was…”

A&C Constr. & Installatio v. Zurich Am. Ins. Com, 963 F.3d 705 (7th Cir. 2020). · cites it 2× “” 40 U.S.C. § 3133 (b)(2). That is, the sub-sub- contractor must first notify the general contractor of the situ- ation before it can sue on the bond.”

Highland Renovation Corp. v. Hanover Ins. Grp., 620 F. Supp. 2d 79 (D.D.C. 2009). · cites it 3× “(“Highland”) brings this action against surety bond issuer Hanover Insurance Group (“Hanover”) under the Miller Act, 40 U.S.C. § 3133 , for $329,183.03 that is allegedly owed to Highland by the Military Personnel Services Corporation (“MPSC”) for work Highland engaged in to…”

United States v. Hirani Eng'g & Land Surveying, P.C., 345 F. Supp. 3d 11 (D.C. Cir. 2018). · cites it 5× “ACC brought this action against Colonial under the Miller Act, 40 U.S.C. § 3133 , and also brought a state law claim against Hirani for breach of contract.”

Montano Elec. Contractor v. United States, 114 Fed. Cl. 675 (Fed. Cl. 2014). · cites it 5× “Paul under the Miller Act, 40 U.S.C. § 3133 , and to inform him that Mr.”

Arena v. Graybar Elec. Co., Inc., 669 F.3d 214 (5th Cir. 2012). · cites it 2× “Arena originally brought suit under the Miller Act, 40 U.S.C. § 3133 et seq., which provides federal question jurisdiction to the district court pursuant to 28 U.”

Ramona Equip. Rental, Inc. Ex Rel. United States v. Carolina Cas. Ins., 755 F.3d 1063 (9th Cir. 2014). · cites it 7× “On July 25, 2008, Ramona served a ninety-day notice of its claim for payment on Candelaria’s payment bond pursuant to 40 U.S.C. § 3133 (b)(2).1 Following service of the notice, 1 Section 3133(b)(2) provides: “[a] person having a direct contractual relationship with a…”

United States ex rel. Chasney & Co. v. Hartford Accident & Indem. Co., 168 F. Supp. 3d 824 (D. Maryland 2016). · cites it 2× “1, 2014); see also 40 U.S.C. § 3133 (b) (authorizing civil actions on Miller Act payment bonds).”

United States Ex Rel. Metric Elec., Inc. v. EnviroServe, Inc., 301 F. Supp. 2d 56 (D. Mass. 2003). · cites it 4× “(“Metric”) asserts claims under the Miller Act ( 40 U.S.C. § 3133 ) 2 and Massachusetts Unfair and Deceptive Trade Practices Law (M.”

United States Ex Rel. MPA Constr., Inc. v. XL Specialty Ins., 349 F. Supp. 2d 934 (D. Maryland 2004). · cites it 2× “” 40 U.S.C. § 3133 (b)(1). Jowett now seeks to intervene, asserting that, “[sjhould this Court find that the surety is liable to MPA, the surety will in turn seek indemnification from Jowett for such judgment.”

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— 40 U.S.C. § 3133(b)(1) — 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 v. Travelers Cas. & Sur. Co. of Am., 265 F. App'x 236 (5th Cir. 2008).

Us Ex Rel. Tenn. Valley Marble v. Grunley Const., 433 F. Supp. 2d 104 (D.D.C. 2006).

Air Control Tech., Inc. v. Pre Con Indus., Inc. (9th Cir. 2013).

— 40 U.S.C. § 3133(b)(2) — 1 case

Telligent Masonry, LLC v. Cont'l Cas. Co. (D.D.C. 2019).

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