The Notice a Remote Claimant Must Give

Claimants who dealt directly with the prime contractor may sue on a federal payment bond without any preliminary step. Claimants one step further down may not. A person having a direct contractual relationship with a subcontractor, but no contractual relationship express or implied with the prime contractor, must give written notice before an action will lie. The requirement is short, specific and enforced as a condition of the right rather than as a procedural formality.

The period and what starts it

The notice must be given within ninety days from the date on which the claimant did or performed the last of the labor, or furnished or supplied the last of the material, for which the claim is made. The trigger is the claimant's own last performance. It is not the invoice date, not the date payment became due, not the date of the last unanswered demand, and not the completion of the project.

Two recurring problems follow from that. The first is identifying the last day where deliveries were made over months. Continuous supply under a single arrangement is generally treated as one course of dealing ending on the final delivery for that arrangement, but separate purchase orders for distinct scopes may run separately. The second is the temptation to treat a small later act as restarting the period. Returning to correct defective work, retrieving equipment or making a token delivery is usually held not to extend it, on the view that the provision would otherwise be meaningless.

Where the running date is genuinely uncertain, the conservative course is to serve from the earliest defensible date rather than the latest. Early service costs nothing and forfeits nothing: the statute sets an outer limit on when notice may be given, not an earliest date. A claimant who serves promptly after ceasing work also gains a practical advantage, because the prime contractor still holds funds due to the subcontractor and can withhold against the claim.

What the notice must contain

The statute requires the notice to 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. Those two items are the whole of the mandatory content. There is no prescribed form, no requirement that the document call itself a notice, and no requirement that it demand payment in terms.

The substantial accuracy standard gives some latitude on the amount, which is useful where a final figure depends on unbilled work or disputed extras. It gives none on the identity of the ordering party, because that is the information the prime contractor needs to investigate and to protect itself by withholding funds from the responsible subcontractor. A notice that states a figure without identifying whose debt it is fails at the point of the requirement.

Beyond the mandatory items, additional content is usually included and is usually useful. Identifying the project and the contract, describing the labor or material supplied, stating the dates of first and last furnishing and attaching the unpaid invoices all help the prime contractor evaluate the claim without further inquiry. None of it is required, and none of it cures a notice that omits the amount or the ordering party, but a notice that answers the obvious questions is more likely to produce payment without litigation.

How service must be made

The federal statute permits service by any means that provides written third-party verification of delivery to the contractor at any place it maintains an office or conducts business, or at the contractor's residence. It also permits service in any manner in which the United States marshal for the district where the public improvement is situated may serve a summons. The first route covers certified mail with return receipt and commercial delivery services that generate a delivery record.

What the provision does not accommodate is delivery without a record. Ordinary mail, electronic mail without an acknowledgment and hand delivery without a signed receipt all leave the claimant unable to prove the element on which the right depends. Since the burden falls on the claimant, an undocumented notice that was in fact received may still fail if the recipient denies it. Keeping the delivery record with the project file, rather than only the copy of the notice, is the practical point.

Addressing raises its own difficulty on large projects. The prime contractor's registered office, its project trailer and the address printed on the subcontract may all be different, and the statute permits service at any place where the contractor maintains an office or conducts business. Serving more than one of those addresses is prudent where the correct one is unclear, since a claimant needs only one delivery to succeed and gains nothing by choosing economically among them.

State variations, and the notice sent at the start

Several states impose obligations with no federal counterpart. Michigan requires a claimant without privity to serve two notices: one within thirty days after first furnishing, informing the principal contractor of the nature of the materials or labor, identifying the party that contracted for them and identifying the site, and a second within ninety days from last furnishing. A claimant who serves only the later notice has not complied. California conditions enforcement on the statutory preliminary notice used throughout its construction payment scheme, with a narrow alternative route measured from a recorded notice of completion.

Washington relocates the obligation entirely, requiring a written notice of claim filed with the public body within thirty days after completion of the contract and acceptance of the work. These divergences are collected in little Miller Acts and where they diverge from the federal rule. Whether the obligation applies at all depends on the claimant's position, which is analyzed in who may claim, by tier, and giving the notice does not by itself preserve the claim, because the separate period addressed in the deadline to sue on a payment bond continues to run.