QUICK NOTE: AIM TO AVOID A STAY TO YOUR MILLER ACT PAYMENT BOND CLAIM

Posted on February 17, 2017February 17, 2017 by Edward Garber

Strategy is important. This is especially true if you are trying to avoid arbitration. In a recent federal district court case, a subcontractor sued the prime contractor and the Miller Act payment bond surety. The subcontractor, however, had an arbitration provision in its subcontract with the prime contractor. The prime contractor moved to compel arbitration pursuant to the subcontract and moved to stay the subcontractor’s Miller Act payment bond claim. The last thing, and I mean the last thing, the subcontractor wanted to do was to stay its claim against the Miller Act payment bond. However, the district court compelled the subcontractor’s claim against the prime contractor to arbitration and stayed the subcontractor’s Miller Act payment bond claim pending the outcome of the arbitration. See U.S. v. International Fidelity Ins. Co., 2017 WL 495614 (S.D.Al. 2017). This is not what the subcontractor wanted.

The outcome of this ruling may have been different if the subcontractor never sued the prime contractor and only sued the Miller Act payment bond surety. The Miller Act payment bond surety did not move to compel the Miller Act claim to arbitration evidently meaning there was nothing in the subcontract that would support such an argument. Had only the Miler Act payment bond surety been sued, the subcontractor may have likely been able to proceed with its payment dispute against the surety in federal district court without having to worry about arbitrating the same dispute with the prime contractor.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

QUICK NOTE: SUBCONTRACTOR PAYMENT BOND = COMMON LAW PAYMENT BOND

Posted on February 12, 2017February 12, 2017 by Edward Garber

What is a common law payment bond? A common law payment bond is a bond not required or governed by a statute. For example, if a prime contractor provides the owner a payment bond, that bond will be a statutory payment bond. On the other hand, if a subcontractor provides the general contractor with a payment bond, that bond will be a common law payment bond. Why? Because there is not a statute that specifically governs the requirements of a subcontractor’s payment bond given to a general contractor. The subcontractor’s payment bond is aimed at protecting the general contractor (and the general contractor’s payment bond) in the event the subcontractor fails to pay its own subcontractors and suppliers. The subcontractor’s payment bond will generally identify that claimants, as defined by the bond, are those subcontractors and suppliers the subcontractor has failed to pay. This common law payment bond is not recorded in the public records so sometimes it can be challenging for a claimant (anyone unpaid working under the subcontractor that furnished the bond) to obtain a copy of the bond. With that said, an unpaid claimant should consider pursuing a copy of this bond in certain situations, particularly if it may not have preserved a claim against the general contractor’s statutory payment bond.

Common law payment bonds have a one-year statute of limitations. This statute of limitations runs from the later of (i) one year from the claimant’s final furnishing date or (ii) one year from the general contractor’s final furnishing date if the general contractor provided a payment bond on the project.

DURATION OF PUBLIC PAYMENT BOND = FULL TERM OF PUBLIC CONTRACT

Posted on August 8, 2016August 8, 2016 by Edward Garber

Florida Statute s. 255.05 governs public payment bond rights on Florida public construction projects (other than Florida Department of Transportation projects). This is an important statute for all that perform Florida public construction work! (Check out this article for more information on s. 255.05 and this chart summarizing steps required to preserve payment bond rights.) If you are subcontractor, sub-subcontractor or supplier on a Florida public construction project, you want to understand what you need do to preserve and perfect payment bond rights to secure any potential nonpayment. And, if you are a prime contractor that furnished a public payment bond, you will likely be indemnifying your payment bond surety with respect to any payment bond claim. You want to know those payment bond claims that are worth fighting and those that are worth spending the time and effort on the frontend to efficiently resolve because payment bond claims create a statutory basis to recover attorney’s fees.

The recent opinion in Maschmeyer Concrete Co. of Florida v. American Southern Ins. Co., 2016 WL 3746379 (M.D.Fla. 2016) serves as an example of a contested public payment bond dispute between a supplier and payment bond surety. In this matter, a prime contractor was awarded a concrete repair and construction contract from the City of Orlando in 2011. The City’s acceptance letter to the prime contractor stated that the contract was for one year but could be renewed upon mutual agreement as provided in the City’s solicitation upon entering into an amendment to the contract. The terms of the solicitation and contract allowed the City to renew the contract for four additional one-year terms.

Before the expiration of initial one-year term, the City sent an amendment to the prime contractor renewing the contract for an additional year. The prime contractor signed the amendment. The amendment required the contractor to submit a public (payment) bond, which the contractor furnished. The bond stated that it was for a period of one year from 12/1/12 through 11/30/13.

Before the expiration of the second one-year term, the City sent another renewal amendment to the prime contractor renewing the contract for an additional year. The prime contractor signed the amendment. An updated bond was never furnished.

Before the expiration of the third one-year term, the City sent another renewal amendment to the prime contractor renewing the contract for an additional year. The prime contractor signed the amendment. An updated bond was never furnished. During this renewal period, a supplier furnished materials to the prime contractor that was utilized in the concrete repair and restoration work. The prime contractor did not pay the supplier and the supplier initiated an action against the prime contractor’s public payment bond.

The surety argued that the supplier did NOT have payment bond rights because the supplier furnished materials after the expiration of the payment bond—after the11/30/13 duration listed in the bond. The supplier argued that any expiration or duration limitation in the payment bond was unenforceable under s. 255.05 since a public payment bond cannot expand or limit the effective duration of the bond. Fla. Stat. s. 255.05(e). But, what does “effective duration of the bond” mean? “The only reasonable interpretation of ‘effective duration’ of the Statutory [public ] Bond is a bond duration that corresponds with the full term of the Public Work Contract identified on the face of the Statutory Bond or incorporated by reference in the Statutory Bond.” Maschmeyer Concrete Co. of Florida, 2016 WL at *4.

Here, although the contract was for a one-year term, the terms of the contract / solicitation allowed it to be renewed an additional four years. Thus, the City renewing the contract through amendments was authorized pursuant to the very contract that was identified and incorporated into the public payment bond. The fact that the bond was never updated is of no moment because the bond legally had to remain in effect during the duration of the contract.

Under the surety’s argument, the supplier was s*** out of luck because the supplier furnished materials outside of the bond’s listed duration. Hence, the supplier was furnishing materials to a project where there was no bond to protect its financial interests. This gotcha-type argument does not seem reasonable. There was a bond in place because the City required a bond. Whether that bond was renewed or not should not make a difference because the contract was still in effect and the prime contractor was still performing under the contract after the listed duration in the bond. To punish a supplier because the base contract is still in effect and being performed makes no rationale sense. What does make sense, however, is that as long as a prime contractor is still performing base contract work, the public payment bond is still in effect to secure any potential nonpayment.

DRAFTING THE BOND FORM, PARTICULARLY THE PERFORMANCE BOND FORM

Posted on July 8, 2016July 8, 2016 by Edward Garber

Oftentimes, when it comes to payment and performance bonds (in particular), the bond forms are drafted by the obligee. For example, an owner (as the obligee) may draft the bond forms that it wants its general contractor’s surety to execute. And, a general contractor (as the obligee) may draft the bond forms that it wants its subcontractors’ sureties to execute. As an obligee, it is always beneficial to draft the bond form (particularly the performance bond) that you want the surety to execute. The bond is to benefit you—the obligee—so having a hand in creating conditions to trigger the application of the bond is important, specifically when it comes to triggering a performance bond upon the bond-principal’s default.

What if the surety executes a bond form prepared by the obligee and there is an ambiguity in the bond? Should the ambiguity be interpreted against the obligee as the drafter of the bond?

This issue was addressed by the Fourth District Court of Appeal in The School Bd. Of Broward County v. Great American Ins. Co., 807 So.2d 750 (Fla. 4^th DCA 2002) where the School Board owner prepared the performance bond form. The surety argued there was an ambiguity with the bond form and wanted the ambiguity to be interpreted against the School Board as the drafter of the bond. The court rejected this argument explaining:

Florida’s policy is to construe any ambiguity in a bond in favor of granting the broadest possible coverage to those intended to be benefitted by protection of the bond [e.g., the obligee]. This policy recognizes that the purpose of a bond is to protect a party to a contract; the burden is on the surety, who is in the business, to include the appropriate language in its bonds if it seeks to narrow its obligations after default.

The School Board of Broward County, 807 So.2d at 752 (internal citations and quotations omitted).

To reiterate, it is always beneficial as the obligee to prepare the bond forms (particularly the performance bond) that you want the surety to execute since the bond is designed to benefit you. Work with counsel to ensure the bond form provides you the broadest or best coverage based on the anticipated risks.

MILLER ACT CLAIM FOR UNSIGNED CHANGE ORDERS

Posted on June 25, 2016June 25, 2016 by Edward Garber

Contracts and subcontracts often contain language that requires change orders to be in writing and that no change order work shall be performed unless agreed to in advance in a signed change order. Oftentimes change order work is performed but the parties have not complied with the strict requirements of the contract by having this work signed off by the parties in a change order prior to the commencement of the work. Well, can such requirements be waived? If so, can such change orders form the basis of a Miller Act claim? The answer is generally yes provided the party arguing waiver can support the waiver with evidence (that the other party voluntarily relinquished the requirements through its course of conduct / actions).

This is exemplified in U.S. f/u/b/o Agate Steel, Inc. v. Jaynes Corp., Case No. 2:13-CV001907-APG-NJK (D. Nev. June 17, 2016), where a sub-subcontractor asserted a Miller Act payment bond claim for non-payment largely dealing with change order work that was never signed by the subcontractor that hired it. The subcontract stated:

No change orders or contract additions will be made unless agreed to in writing….If additional work is performed and not covered in this contract [sub-subcontractor] proceeds at [its] own risk and expense. No alterations, additions, or small changes can be made in the work or method of the performance, without the written change order signed by [subcontractor] and [sub-subcontractor].

Jaynes, supra.

The sub-subcontractor submitted change order requests and time and material summaries to the subcontractor that hired it. However, the subcontractor never signed the change orders or time and material summaries. The sub-subcontractor acknowledged that most of the requests for change order work was prompted by verbal authorizations, including written authorizations. Shortly thereafter, the subcontractor disputed the change order requests and claimed that the sub-subcontractor performed work without signed change orders. The prime contractor and its Miller Act payment bond surety disputed the sub-subcontractor’s payment bond claim contending the sub-subcontractor never complied with its subcontract by not obtaining prior written approval in a change order before performing the change order work.

Here, the trial court held that the subcontractor waived the subcontract’s requirement that change orders be in writing signed by both parties thereby allowing the sub-subcontractor to recover against the Miller Act payment bond:

Here, Agate [sub-subcontractor] has presented evidence that American Steel [subcontractor] waived the requirement that change orders be approved in a writing signed by both American Steel and Agate. Agate presented change orders and T&M summaries for payment. In his June 18 email, American Steel’s president, Williamson, approved a revised contract amount of $126,907.00. He also directed Agate to proceed with work as soon as possible and asked how soon Agate could return to the work site. Agate subsequently performed more work on the project based on the approval of the change orders. No issue of fact remains that the parties therefore waived the requirement that the change orders be in a writing signed by both parties.

Ideally this issue would never arise because the parties would comply with the strict requirements of the contract and change orders would never be performed without there being a signed change order. But we all know that this does not always happen leading to disputes relating to change orders after the work is already performed. While such strict language is certainly beneficial, it is not absolute and the party performing the change order work can navigate around the strict requirements by presenting evidence establishing this requirement was waived. Such evidence can be in the form of written authorizations to perform the work, the manner in which other change orders were handled, testimony from fact witnesses regarding oral authorizations, meeting minutes discussing the change, and other evidence that shows the party looking to enforce the requirements waived them through their course of conduct and actions.

QUICK NOTE: PERFECTING & PRESERVING CONSTRUCTION LIEN & PAYMENT BOND RIGHTS

Posted on June 20, 2016June 20, 2016 by Edward Garber

You are a subcontractor, sub-subcontractor, or supplier on a construction project. What steps can you take to maximize your ability to collect payment?

Read this chart to understand what steps you need to undertake to preserve and perfect construction lien or payment bond rights. This chart will assist you with what notices you may need to serve to preserve your lien or payment bond rights and the timing to do so.
Read this article that has tidbits to maximize payment on a private construction project. This article will be beneficial for any subcontractor, sub-subcontractor, or supplier that performs work on a private construction project.
Take a look at the below presentation. This is a presentation I put on with a notice company that summarizes steps you can implement to preserve your rights and increase your chances to timely collect payment.
Please consult a construction attorney so that you can be proactive and not necessarily reactive when it comes to perfecting and preserving your rights.

[gview file=”https://floridaconstru.wpengine.com/wp-content/uploads/2016/06/FL-Mechanics-Liens-Roofers-DMA.pptx”]

QUICK NOTE: TIMING TO SUE PUBLIC PAYMENT BOND FOR RETAINAGE ON PUBLIC CONSTRUCTION PROJECTS

Posted on April 22, 2016April 22, 2016 by Edward Garber

You are a subcontractor (or sub-subcontractor) on a public construction project. The general contractor has a public payment bond per Florida Statute s. 255.05. You finished your scope some time ago but you are still owed retainage. When do you sue for retainage? There is a statutory retainage exception that governs the timing of when to sue for retainage. Check out this article for the applicable statutory language regarding the retainage exception. Timing is important to ensure that you do not prematurely sue for retainage or, worse, sue for retaiange after the statute of limitations expired.

QUICK NOTE: PERFECT PRIVATE PROJECT PAYMENT BOND RIGHTS IF NOT IN PRIVITY WITH GENERAL CONTRACTOR

Posted on April 13, 2016April 13, 2016 by Edward Garber

Remember, if you are not in privity of contract with the general contractor on a private project where the general contractor furnished the owner with a payment bond (e.g., sub-subcontractor or supplier), you NEED to perfect your payment bond rights by initially serving a notice of intent to look to the bond on the general contractor. (Or, serve a notice to owner but make sure you serve a copy on the general contractor). Not serving the general contractor with this initial notice can deprive you of payment bond rights. How do you know if there is a payment bond in place? Pull up the notice of commencement recorded in the official records where the property is located which should identify if there is a payment bond and will attach a copy of the payment bond.

For more information on payment bond rights, check out this chart.

PRIME CONTRACTOR INTERVENING INTO LAWSUIT AS PRINCIPAL OF MILLER ACT PAYMENT BOND

Posted on March 25, 2016March 25, 2016 by Edward Garber

In a Miller Act payment bond lawsuit (or any payment bond lawsuit for that matter), there are many times where a claimant (subcontractor, sub-subcontractor, or supplier) will sue the Miller Act payment bond surety and NOT the prime contractor or principal of the payment bond. There are also times where the prime contractor moves to intervene in the lawsuit as the principal of the payment bond. Perhaps the prime contractor wants to assert a counterclaim against the claimant or a third-party claim. These affirmative claims would belong to the prime contractor and not its surety; thus, the prime contractor moves to intervene in the lawsuit so that it can assert such affirmative claim(s) in the context of the dispute against its surety. Oftentimes, a federal district court will allow the prime contractor to permissively intervene in the lawsuit as the principal of the payment bond, especially if the prime contractor plans to assert an affirmative claim to allow for the efficient resolution and disposition of all such claims.

For example, in U.S. f/u/b/o Jackson Geothermal HVAC & Drilling, LLC v. Western Surety Co., 2016 WL 1030392, (D.N.J. 2016), the prime contractor hired a subcontractor to provide HVAC, geothermal services, plumbing, and sprinklers. The subcontractor, in turn, subcontracted the geothermal services to the claimant–a sub-subcontractor on the project. The sub-subcontractor (claimant) filed a lawsuit against the Miller Act payment bond surety for approximately $300,000. The prime contractor, as principal of the payment bond, moved to intervene in the lawsuit primarily to (a) assert an affirmative claim for negligence against the sub-subcontractor and (b) assert a third-party claim against its subcontractor for breach of contract and negligence. The issue before the court was whether the prime contractor should be able to intervene in the sub-subcontractor’s lawsuit against the Miller Act payment bond surety. The district could found that permissive intervention was appropriate to allow the prime contractor to intervene in the sub-subcontractor’s Miller Act payment bond lawsuit:

[T]he Court finds no reason to believe that permitting Ranco [prime contractor / principal of payment bond] to intervene in this matter will unduly delay these proceedings or unfairly prejudice the adjudication of Jackson’s rights. While Ranco could pursue its state law claims against B&S [subcontractor] and Jackson [sub-subcontractor claimant] in state court, “notions of judicial economy suggest aggregating them in a single proceeding […] rather than have different tribunals examine these issues at different times.” Indeed, as the Third Circuit has noted, the court’s policy preference, i.e., “judicial economy, favors intervention over subsequent collateral attacks.” As a result, the Court finds that intervention will protect all of the parties from having to revisit the main issues being litigated here in separate proceedings. Thus, the Court shall permit Ranco to intervene in this matter.

Western Surety Company, supra, at *4 (internal citation omitted).

There are times where a principal prime contractor intervening into a lawsuit against its surety may not be appropriate. But, if the principal has affirmative claims or if the surety happens to be represented by different counsel (such that the surety is not allowing the principal to defend it with the principal’s preferred counsel) the prime contractor has a stronger basis to intervene in the lawsuit as a principal of the payment bond. A prime contractor intervening in a lawsuit against its Miller Act payment bond surety is an important consideration based on the factual circumstances of the dispute.

QUICK NOTE: SUIT AGAINST MILLER ACT PAYMENT BOND MAY NOT BE BROUGHT UNTIL 90 DAYS AFTER FINAL FURNISHING

Posted on March 18, 2016March 18, 2016 by Edward Garber

If you have a claim against a Miller act payment bond, a lawsuit cannot be brought until 90 days after your final furnishing date. This is set forth in 40 USC s. 3133(b)(1) that provides if you “have not been paid in full within 90 days after the day on which…[you]…performed the last of the labor or furnished or supplied the material for which the claim is made [you] may bring a civil action on the payment bond.” In other words, your claim is ripe 90 days after your final furnishing date. With that said, even if you prematurely filed suit before this 90-day period, there is authority that the lawsuit should not be dismissed, but rather, you can cure this by filing a supplemental pleading (relating back to the original pleading). Otherwise, if the lawsuit was dismissed, you could potentially be facing a statute of limitations argument barring your right to seek a Miller Act payment bond claim.