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Using the Miller Acts

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Information on how to use the Miller and Little Miller acts to reduce credit risk.

Information on how to use the Miller and Little Miller acts to reduce credit risk.

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    Using the Miller Acts Using the Miller Acts Presentation Transcript

    • Using the Miller and Little Miller Acts to Reduce Credit Risk June 18, 2009 NACM – Presented by Sussman Shank, LLP SUSSMAN SHANK LLP | (503) 227-1111 | www.sussmanshank.com | © 2009
    • Washington Little Miller Act Highlights
      • Pre-Claim Notice
        • Every Person Or Entity Furnishing Supplies Or Materials Must Provide Written Notice To The General Contractor Not Later Than 10 Days After The Date Of First Delivery Stating:
          • Name Of Person/Entity Providing Supplies Or Materials
          • Name Of Person/Entity To Whom Such Supplies Or Materials Were/Will Be Provided
          • That The General Contractor And His Bond Will Be Held For Payment Of The Same
          • Persons Providing Only Labor Need Not Provide This Notice
          • If Required And Not Done, No Bond Claim!
          • Send By Certified Mail Or Registered Mail
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Washington Little Miller Act Highlights
      • Bond Claim
        • Within 30 Days Of Acceptance By Affirmative Action Of The Public Body, Claimant Shall File Its Claim With The Public Body Its Claim
        • "Acceptance" Formal Act Defined By Statute
        • Caution: Acceptance Can Be Partial (i.e. Phase 1)
        • Substance Of Claim Is Statutory, But Highlights Are:
          • Name Of Public Body That Let The Contract
          • Name Of Claimant
          • Amount Of Claim (Itemize)
          • Surety Name And Bond Number
          • Name Of Contractor Who Obtained Bond
          • Brief Description Of Work Performed
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Washington Little Miller Act Highlights
      • Bond Claim (Cont.)
        • Notice Must Be Signed By Claimant
        • Attorneys Fees/Costs
          • If Claimant Waits 31 Days From The Filing Of The Claim Before Filing Suit And Prevails In The Lawsuit, It Is Entitled To Reasonable Attorney Fees (Reciprocal)
        • Other Conditions In Bond - Look At Bond To Confirm
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Oregon’s Little Miller Act © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Oregon’s Little Miller Act
      • Exempt Projects
        • Emergency Situations
          • Contract < $50,000
          • Not Reasonably Foreseeable
          • Creates Substantial Risk
          • Prompt Contract To Remedy
        • Agency Cost Estimate Exceeded
          • All Reasonable Bidders
        • Contracts Between Certain Agencies
          • Oregon - Oregon
          • Oregon – Federal
          • Nonprofits - Disabled Employment
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Oregon’s Little Miller Act
      • ORS 279 c.600 Et. Seq.
      • Applies To
        • All Non-Federal, Public Improvement Construction Projects In Oregon
          • State Agencies - ODOT
          • School Districts
          • Cities
          • Mixed Funding
            • Wind Farms
            • Low Income Housing
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Oregon’s Little Miller Act
      • Requires Prime Contractor To Post
        • Performance Bond
        • Payment Bond
          • Equal To The Amount Of The Prime Contract
          • Protects Most Persons Claiming To Have Supplied Labor, Materials, Or Equipment
      • Notice of Claim
        • To
          • The Prime Contractor
          • Public Body Or Agency
            • Surety
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Oregon’s Little Miller Act
      • Exempt Projects (Cont.)
        • Contracts For Certain Products, Services or Suppliers
          • Project < $50,000
          • VA
          • Recycled Materials
        • Certain Review Boards
          • Classes Of Contracts
          • Procedures To Establish
          • Notice And Hearing
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Oregon’s Little Miller Act
      • Deadline To File Lawsuit
        • No Later Than 2 Years After Last Provided Labor Or Materials.
          • Not 2 Years After Notice Of Claim
          • Project Location Or Federal Court
        • Attorney Fees May Be Recoverable
          • Surety - 6 Months
      • Public Body And The Officer Authorizing The Contract May Be Personally Liable
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Oregon’s Little Miller Act
      • Notice of Little Miller Act Bond Claim (Cont.)
        • Contents
          • ORS 279c.605
          • OAR 137-040-0045
            • Your Address
            • Title Of Progress
            • Name Of The Bonding Company
        • When
          • No Later Than 120 Days After The Last Day Of Labor Or Furnished Materials
          • Work May Extend The 120 Day Notice Period
            • Corrective Or Replacement
            • Minor Or Trifling
        • Sent By Registered Or Certified Mail Or Hand Delivered
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Federal Miller Act SUSSMAN SHANK LLP | (503) 227-1111 | www.sussmanshank.com | © 2009
    • Federal Miller Act
      • 40 USC §270
      • Cannot Lien Property Owned By The Federal Government
      • Applies To Contracts Over $100,000
      • A Prime Contractor Who Has
        • Contract To Perform Construction Or Alteration Or Repair, On A Federal Project Or -Property
        • Must Post A Performance Bond
        • Must Post A Payment Bond
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Federal Miller Act
      • Who Is Not Entitled To File A Claim
        • Supplier To A First Tier Supplier
        • Subcontractor To A First Tier Supplier
        • Third Tier Supplier
        • Third Tier Subcontractor
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Federal Miller Act
      • The Payment Bond Protects A Limited Number Of Persons Who Have
        • A Written Or Oral Contract To Supply Labor Or Provide Materials
        • In The Prosecution Of The Work Set Forth In The Public Contract
      • Who May File A Claim
        • First Tier Subcontractors
        • First Tier Suppliers Who Contract Directly With The Prime Contractor
        • Second Tier Subcontractors And Suppliers
          • Contract Directly With A First Tier Subcontractor
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Federal Miller Act
      • Notice Of A Claim
        • First Tier Subcontractor Or Supplier Is Not Required To Give Notice
        • All Others Must Give Written Notice Of A Claim
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Federal Miller Act Hierarchy © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Federal Miller Act
      • Where File Lawsuit
        • Federal District Court Where The Contract Was To Be Performed Or Executed
      • Deadline To File Lawsuit
        • One Year After The Day Material Was Last Supplied Or Labor Or Services Were Last Performed
        • A Lawsuit Cannot Be Filed Until 90 Days After The Last Date Labor Or Materials Were Provided
        • Corrective Or Repair Work Does Not Extend The Filing Deadline
      • Recoverable Damages And Losses
        • Delay Damages For The Increased Cost Of Labor Or Materials
        • Lost Profits Resulting From Delay Are Not Recoverable
        • Federal Officials Are Not Personally Liable
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Federal Miller Act
      • Who
        • To The Prime Contractor
      • How
        • Via Registered Mail, Postage Prepaid
      • When
        • Within 90 Days From The Date Last Performed Labor Or Furnished Material Or Services
        • The Notice Must Be Received Within The 90-Day Period
      • What
        • Must Accurately State The Following:
          • The Amount Claimed
          • The Name Of The Party To Whom The Materials Were Furnished Or For Whom The Labor Or Services Were Performed
      © SUSSMAN SHANK LLP | www.sussmanshank.com
    • Federal Miller Act SUSSMAN SHANK LLP | (503) 227-1111 | www.sussmanshank.com | © 2009