Miller Act Claims: Compliance With the Bond, Prosecution, and Defense Strategies for General Contractors and Subs

Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Real Property - Transactions
- event Date
Tuesday, May 2, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will discuss strategies for litigating federal and state-level Miller Act claims. The panel will offer guidance based on the decision in the K-Con case and the Christian doctrine, best practices in pursuing and defending against violations, and preemptive measures builders, subcontractors, and suppliers can employ to prevent exposure and mitigate potential losses.
Faculty

Mr. Cahalan has substantial experience representing owners, contractors, subcontractors, engineers, architects, suppliers, manufacturers and vendors in connection with construction, commercial and other business matters. His practice primarily consists of drafting and reviewing construction contracts, providing advice during construction and construction litigation, arbitration and mediation. Mr. Cahalan was the primary drafter of the Associated Owners and Developers’ AOD 2002 – Standard Form of Agreement Between Owner and Contractor Where the Price Is Fixed or Lump Sum, and the Associated Owners and Developers’ AOD 2003 – Standard Form of Agreement Between Owner and Contractor for Work on a Cost Plus Fee Basis With a Guaranteed Maximum Price. He has also given numerous seminars throughout the U.S. and Europe concerning construction contracts, implied contract obligations, claims, green building, construction insurance, and mechanics lien law. Since 2010, Mr. Cahalan has been an instructor at the Georgia Institute of Technology where he teaches Design and Construction Law.

Ms. Gordon concentrates her practice in the areas of construction/surety law and commercial litigation. She has experience representing owners, contractors, subcontractors, and design professionals in all aspects of construction from contract negotiation and drafting, claim drafting and counseling during construction, and claims resolution in state and federal courts and before arbitration panels. Ms. Gordon has handled these issues involving private owners and state and federal agencies. She has handled state and public lien law claims and federal Miller Act claims. Other practice areas include commercial litigation, products liability, and mass tort litigation. Ms. Gordon regularly lectures on construction law topics.

Ms. Watkins' practice involves working with general contractors, subcontractors, and suppliers in all aspects of day-to-day operation through contract disputes, including bid protests, contract drafting and review, lien and bond claims, REAs, contract claims, appeals, and small business procurement issues. She has represented clients before state, federal, and local agencies, including the Government Accountability Office, the Small Business Administration, the United States Department of Transportation, the Court of Federal Claims, and the Office of Minority and Women’s Business Enterprises, as well as before various federal and state courts, arbitrators, and hearing officers.
Description
The Miller Act (40 U.S.C. 3131 et seq.) and its various state law equivalents require general contractors entering into public building or public works contracts with the government to furnish a payment bond in an amount equal to the contract price. The bond guarantees payment to subcontractors and vendors supplying labor and materials to contractors or subcontractors engaged in the construction.
These protections offer relief in the event of nonpayment, but pursuing claims can be challenging because they often arise while the work is ongoing and are subject to strict restraints of notice and timing. Claims may also be subject to contractual preconditions that preclude direct actions against the government. Additionally, a recent case established that the Christian doctrine applies to government construction contracts as a matter of law or public policy, even if not explicitly referenced or cited within the written agreement.
Practitioners representing subcontractors and vendors for nonpayment or additional monies for expanded scopes of work or changed conditions must be familiar with claim-limiting strategies employed by general contractors and the impact of other relief mechanisms like the Contracts Disputes Act.
For counsel representing general contractors, to what extent can their clients rely on contractual protections like mandatory pass-through provisions and contingent payment clauses to limit their exposure and mitigate potential losses for claims asserted by subcontractors and materialmen?
Listen as our distinguished panel of construction lawyers discusses strategies for successfully pursuing and defending Miller Act claims and offers critical guidance on preemptive measures parties can take to prevent claims from arising.
Outline
- Overview of Miller Act
- Qualifying contracts
- Bonding requirements
- Who is protected?
- Remedies for nonpayment
- Material suppliers
- Subcontractors
- The claims process
- General contractor perspectives
- Subcontractor perspectives
- Supplier perspectives
Benefits
The panel will review these and other key issues:
- Balancing statutory requirements and contract provisions when pursuing recovery for nonpayment
- Addressing "slow pay" scenarios where trailing accounts payable extend beyond 90 days
- Managing statute of limitations in the face of non-binding ADR requirements
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