Who is protected under New Hampshire Bond Claim Laws?
In New Hampshire, parties who furnish labor and/or materials to at least a general or 1st tier subcontractors are protected. Suppliers to suppliers are not covered. Note that there are two potential avenues to recovery for a protected party on a New Hampshire public project, a lien on the funds due from the public entity, and a claim on the contractor’s bond.
When is the deadline to file a New Hampshire Bond Claim?
Lien on Contract Funds: A lien on contract funds must be filed within 90 days after completion and acceptance of the project.
Bond Claim: A bond claim must be received within 90 days after the completion and acceptance of the project. Note that according to some case law, it may be allowed to give notice of the claim prior to the completion of the project.
Lien on Contract Funds: The requirement is only that the lien must be “filed”. Presumably, it must be filed with the contracting public entity.
Bond Claim: The party who should receive the bond claim varies dependent on the contracting public entity.
If the state is a party to the contract the office of the secretary of state must receive the lien.
If the Department of Transportation is a party, that agency should receive the lien.
If the Department of Administrative Services is a party, that agency should receive the lien.
In all other cases, the bond claim should be delivered to the clerk of superior court in the county where the contract is to be principally performed, with a copy mailed to the general contractor and to the bonding company.
Lien on Contract Funds: The information required for a lien on contract funds is unspecified by statute. It is likely advisable to err on the side of providing too much information – and include the information required for a private mechanic’s lien.
Bond Claim: A bond claim should include a statement of the claim, and the name of the claimant and contracting parties.
New Hampshire does not have statutory lien waiver forms, and therefore, you can use any lien waiver forms. Since lien waivers are unregulated, be careful when reviewing and signing lien waivers. See this article: Should You Sign That Lien Waiver?.
New Hampshire state law is unclear or silent about whether contractors and suppliers can waive their lien rights before any work on the project begins. Accordingly, you want to proceed with caution on this subject. You can learn more about such “no lien clauses” at this article: Where Can You Waive Your Lien Rights Before Payment?
Lien on Contract Funds: Must be “filed,” but no further information is given. Presumably, then, any delivery method is acceptable if the lien claim is actually delivered – it may be advisable to follow the requirements set forth for a private mechanic’s lien.
Bond Claim: Must be “filed” with the appropriate public entity, but no further information is given. Presumably, then, any delivery method is acceptable if the lien claim is actually delivered.
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When you perform work on a state construction project in New Hampshire, and are not paid, you can file a “lien” against the project pursuant to New Hampshire’s Little Miller Act. Since the claim is not against the state or county’s actual property, but instead against a posted bond, the claim is not really called a “lien” but is more frequently referred to as a “bond claim” or “little miller act claim.”
New Hampshire’s Little Miller Act is found in New Hampshire Revised Statutes Title XLI, Chapter 447, and is reproduced below.
New Hampshire Little Miller Act
447:15 State Work.
The liens given by RSA 447:5-14, inclusive, shall attach to any money due or to become due from the state or from any political subdivision thereof by virtue of any contract for any public work or construction, alteration, or repair, in the performance of which contract the lienor participated by performing labor or furnishing materials or supplies. Such liens shall not attach, however, unless filed within 90 days after the completion and acceptance of the project by the contracting party, whether such contracting party is the state or any political subdivision of the state.
447:16 Bond Required.
Officers, public boards, agents or other persons who contract in behalf of the state or any political subdivision thereof for the construction, repair or rebuilding of public buildings, public highways, bridges or other public works shall if said contract involves an expenditure of $25,000, and may if it involves an expenditure of less amount, obtain as a condition precedent to the execution of the contract, sufficient security, by bond or otherwise, in an amount equal to at least 100 percent of the contract price, or of the estimated cost of the work if no aggregate price is agreed upon, conditioned upon the payment by the contractors and subcontractors for all labor performed or furnished, for all equipment hired, including trucks, for all material used and for fuels, lubricants, power, tools, hardware and supplies purchased by said principal and used in carrying out said contract, and for labor and parts furnished upon the order of said contractor for the repair of equipment used in carrying out said contract.
To obtain the benefit of the bond, any person, firm or corporation having any claim for labor performed, materials, machinery, tools, or equipment furnished as aforesaid shall, within 90 days after the completion and acceptance of the project by the contracting party, file in the office of the secretary of state, if the state is a contracting party, or with the department of transportation, if the state is a party to said contract by or through said department, or with the department of administrative services, if the state is a party to said contract by or through said department, or in the office of the clerk of the superior court for the county within which the contract shall be principally performed, if any political subdivision of the state is a contracting party, a statement of the claim, a copy of which shall forthwith be sent by mail by the office where it is filed to the principal and surety.
447:18 Petition and Hearing.
Said claimant shall, within one year after filing such claim, file a petition in the superior court for the county within which the contract shall be principally performed to enforce his claim or intervene in a petition already filed, with copy to the principal and surety, and such further notice as the court may order. Such petition shall contain an allegation of the nature and subject matter of the claim or contract or indebtedness relied upon, of the execution and delivery of the bond, and of the facts showing compliance by the claimant with the provisions of RSA 447:17 and this section relative to the filing of said claim. Subsequent pleadings may thereafter be filed by any party in interest for the purpose of formulating issues under the direction of the court. The court shall examine all claims which have been duly filed in accordance herewith, and fix a date for hearing thereon, with notice to all creditors who have filed claims as herein provided, and to the principal and surety or sureties, and find the respective amounts due such party claimants and their rights to participate in the security and make such orders and decrees as justice may require. The court may require at any hearing on said claims the attendance of any official with whom claims have been filed, with such claims, or require such official to furnish a copy of such claims for the use of the court.
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