Filing a mechanics lien is the best remedy against non-payment in construction. However, mechanics liens only work in private projects. If you are a construction participant in a publicly funded project, you can make a bond claim to recover your payment.
Bond claims for public projects are governed by the US Miller Act. In Idaho, certain construction participants who provide services to a public project may serve a Miller Act Notice so they can claim their unpaid payment through a bond claim.
This guide explains some of the most important pieces of information that you need to know about serving a Miller Act Notice in Idaho.
What is a Federal Miller Act Notice?
The Miller Act Notice is a document that you serve on the general contractor of a public project to recover your payment via the payment bond. This notice is the bond claim itself. When you serve this notice, you are letting the general contractor know that you are looking to receive your payment through the payment bond that they secured from a surety.
In Idaho, the payment bonds furnished by the general contractor must be at least 85% of the contract price. Note that you may also serve the Miller Act Notice on the surety and the public entity.
Who can serve a Miller Act Notice in Idaho?
Only those with a direct contract with a general contractor or a subcontractor may serve a Miller Act Notice in Idaho. This includes subcontractors and material suppliers up to the second-tier. Anyone who does not have a contractual relationship with the GC or the subcontractor does not have payment bond rights in Idaho.
General contractors may not serve a Miller Act Notice on themselves. If they have unsettled payments, they can leverage their contract with the public entity and build a legal case from there.
When do you serve a Miller Act Notice in Idaho?
Be sure to serve the Miller Act Notice no later than 90 days after your last day of work.
How to serve a Miller Act Notice in Idaho
1. Request for information at the beginning of a project
Before you start working on a public project, serve a Request for Information on the general contractor to ask them for details about the surety. You want to request the following information:
- The name of the surety
- The address of the surety
- A copy of the payment bond
It is important to secure a copy of the bond because it will include the payment bond terms. You want to know the specific details about the payment bond because these details vary depending on the project. If there are any project-specific deadlines or terms, you will find them in the payment bond.
2. Prepare the Idaho Miller Act Notice form
The Miller Act Notice must include two important pieces of information:
- The amount of the claim
- The name of the party who hired you
For completion, you may also include the following details:
- Your name and address
- The name and address of the general contractor
- The name and address of the surety
- A description of the services you provided
- A description of the project location
- The total amount of your services
- The amount of payment that you have already received
- The date of your last day of work
Note that the Federal Miller Act Notice does not have to be notarized in Idaho.
3. Serve the Miller Act Notice
Once your Miller Act Notice form is ready, you should serve it on the general contractor via certified mail with return receipt requested. Note that you have a 90-day deadline after your last day of work to serve this notice.
It is best practice to serve the Miller Act notice not only on the general contractor but also on the surety and the public entity who contracted the project. They may step in to expedite the payment process, which means you could get paid quicker if you communicate your payment bond claim to the surety and the public entity.
4. Follow up with the surety
After serving the Miller Act Notice in Idaho, be sure to follow up with the surety and also the general contractor to ask about the status of your claim. Bond claims per the US Miller Act are only effective for 1 year after the last day of work. If you do not receive your payment within this 1-year period, your Miller Act notice expires and it is no longer effective.
Within 1 year of your last day of work, you should be able to enforce your Miller Act Notice if you do not get paid. Enforcing a Miller Act Notice means initiating a full-blown lawsuit against the GC and the surety.
Make sure that you track this 1-year deadline. Even though a lawsuit may be costly, it may be worth pursuing, especially if you are making an Idaho payment bond claim for a huge amount.
Best practices for serving a Miller Act Notice in Idaho
1. Send a Request for Information at the beginning of a project
As soon as you execute a contract for a public project, you should serve a request for information on the general contractor asking for a copy of the payment bond and the contact details of the surety. You need these data in order to successfully serve a valid Miller Act Notice in Idaho.
2. Serve a copy of the Miller Act Notice on the surety and the public entity
The Miller Act Notice is only required to be served on the general contractor. However, serving a copy of the bond claim on the surety and the public entity can get you paid faster. If more parties know about your payment claim, more parties could be willing to make sure that your payment rights are respected.
3. Ensure that you include important details in your Miller Act Notice form
While there is no statutory form for the Miller Act Notice, it must always include the name of the party who hired you and the amount of payment that you are trying to claim. Make sure that these two important details are included, as well as other bits of information that can give more context to your payment claim.
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