New Jersey Bond Claim Guide and FAQs

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New Jersey Bond Claim Overview

New Jersey

Preliminary Notice Deadlines
None / not applicable.

New Jersey

Bond Claim Deadlines
Prime contractors cannot file a claim against their own bond.

New Jersey

Preliminary Notice Deadlines
20 Days

Bond: Preliminary Notice required prior to commencing of work if no direct contract with contractor furnishing the bond. Funds: Preliminary Notice required within 20 days of first furnishing labor or materials.

New Jersey

Bond Claim Deadlines
60 Days

Bond: Within 1 year from last furnishing labor or materials - lawsuit 90 days after sending claim, but no more than 1 year after last furnishing labor or materials. Funds: Any time prior to the completion/acceptance of the total work or 60 days thereafter - Lawsuit within 60 days of completion/acceptance of the total work.

New Jersey

Preliminary Notice Deadlines
20 Days

Bond: Preliminary Notice required prior to commencing of work if no direct contract with contractor furnishing the bond. Funds: Preliminary Notice required within 20 days of first furnishing labor or materials.

New Jersey

Bond Claim Deadlines
60 Days

Bond: Within 1 year from last furnishing labor or materials - lawsuit 90 days after sending claim, but no more than 1 year after last furnishing labor or materials. Funds: Any time prior to the completion/acceptance of the total work or 60 days thereafter - Lawsuit within 60 days of completion/acceptance of the total work.Lawsuit to enforce the claim is due within 60 days of the work's completion / acceptance.

New Jersey Bond Claim FAQs

Claim FAQs

Who is protected under New Jersey Bond Claim Laws?

On public projects in New Jersey, there are two potential types of protection: a claim against a contractor’s bond, and a lien claim against the contract funds.

As against the contractor’s bond, the parties entitled to make a claim are 1st and 2nd tier subcontractors and material suppliers (suppliers to suppliers are not entitled to protection.

As against the contract funds, the parties entitled to file a lien are 1st and 2nd tier subcontractors, or suppliers to the general contractor or 1st or 2nd tier subcontractors. Note, however, that this remedy is not allowed for public projects involving the state or state agencies – it is only allowable when the contracting public agency is “county, city, town, township, public commission, public board or other municipality.”

When is the deadline to file a New Jersey Bond Claim?

A claim against the contractor’s bond must be received within 1 year from the date of last furnishing labor or materials to the project. However, a suit to enforce such claim must be initiated more than 90 days – but no longer than 1 year from the last furnishing of labor and materials. To be protected, then, the claimant should send the lien claim no later than 90 days prior to 1 year after last furnishing labor or materials. ­­

A lien on the contract funds may be filed at any time prior to the completion or acceptance of the work, until no later than 60 days following the completion or acceptance of the work.

Who should receive the New Jersey Bond Claim?

A claim against the contractor’s bond must be provided to the surety and to the general contractor. There is no specific provision as to how this claim must be provided to the surety and general contractor, but best practice would likely be to send the claim via certified mail.

A claim against the contract funds must be filed with the chairman (or other head officer), or clerk or secretary of the public entity that entered into the contract.

When is the deadline to initiate suit, or, how long is my New Jersey Bond Claim effective?

An action to enforce a claim on the contractor’s bond must be initiated more than 90 days after providing the claim to the surety and the general contractor, but less than 1 year after the claimant’s last furnishing of labor or materials to the project.

An action to enforce a lien against the contract funds must be initiated within 60 days after the completion or acceptance of the entire project.

What must the New Jersey Bond Claim include?

A claim against the contractor’s bond must only include a statement of the amount due. It is probably advisable to include at least a description of the project, and the name of the claimant, general contractor, and contracting party, as well. The claim does not need to be verified, but it is probably advisable for the claimant to at least sign the claim.

A lien on the contract funds must include: 1) the claimant’s name and address; 2) the amount claimed and from whom the amount is due; 3) if amount is not due, the date it will become due; 4) name of person to whom labor or materials were furnished and their role in the project; 5) the nature of the public work; 6) the name of the general contractor and the name of the public entity; 7) statement that labor and or materials were provided and actually used in the project; 8) verification by claimant or claimant’s agent.

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New Jersey Bond Claim Statutes

When you perform work on a state construction project in New Jersey , and are not paid, you can file a “lien” against the project pursuant to New Jersey’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 Jersey’s Little Miller Act is found in New Jersey Revised Statutes Title 2A, Chapter 44, and is reproduced below.

New Jersey Little Miller Act

2A:44-143. Additional bond for payment of claims for labor, material, etc.; waiver, surety's obligation

a. (1) When public buildings or other public works or improvements are about to be constructed, erected, altered or repaired under contract, at the expense of the State or any contracting unit, as defined in section 2 of P.L.1971, c.198 (C.40A:11-2), or school district, the board, officer or agent contracting on behalf of the State, contracting unit or school district, shall require delivery of the payment and performance bond issued in accordance with N.J.S.2A:44-147 and otherwise, as provided for by law, with an obligation for the performance of the contract and for the payment by the contractor for all labor performed or materials, provisions, provender or other supplies, teams, fuels, oils, implements or machinery used or consumed in, upon, for or about the construction, erection, alteration or repair of such buildings, works or improvements provided by subcontractors or material suppliers in contract with the contractor, or subcontractors or material suppliers in contract with a subcontractor to the contractor, which class of persons shall be the beneficiaries of the payment and performance bond. The board, officer or agent shall also require that all payment and performance bonds be issued by a surety which meets the following standards:

(a) The surety shall have the minimum surplus and capital stock or net cash assets required by R.S.17:17-6 or R.S.17:17-7, whichever is appropriate, at the time the invitation to bid is issued; and

(b) With respect to all payment and performance bonds in the amount of $850,000 or more, (i) if the amount of the bond is at least $850,000 but not more than $3.5 million, the surety shall hold a current certificate of authority, issued by the United States Secretary of the Treasury pursuant to 31 U.S.C. 9305, that is valid in the State of New Jersey as listed annually in the United States Treasury Circular 570, except that if the surety has been operational for a period in excess of five years, the surety shall be deemed to meet the requirements of this subsubparagraph if it is rated in one of the three highest categories by an independent, nationally recognized United States rating company that determines the financial stability of insurance companies, which rating company or companies shall be determined pursuant to standards promulgated by the Commissioner of Insurance by regulation adopted pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), and (ii) if the amount of the bond is more than $3.5 million, then the surety shall hold a current certificate of authority, issued by the United States Secretary of the Treasury pursuant to 31 U.S.C. 9305, that is valid in the State of New Jersey as listed annually in the United States Treasury Circular 570 and, if the surety has been operational for a period in excess of five years, shall be rated in one of the three highest categories by an independent, nationally recognized United States rating company that determines the financial stability of insurance companies, which rating company or companies shall be determined pursuant to standards promulgated by the Commissioner of Insurance by regulation adopted pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.). A surety subject to the provisions of subsubparagraph (ii) of this subparagraph which does not hold a certificate of authority issued by the United States Secretary of the Treasury shall be exempt from the requirement to hold such a certificate if the surety meets an equivalent set of standards developed by the Commissioner of Insurance through regulation which at least equal, and may exceed, the general criteria required for issuance of a certificate of authority by the United States Secretary of the Treasury pursuant to 31 U.S.C. 9305. A surety company seeking such an exemption shall, not later than the 180th day following the effective date of P.L.1995, c.384, certify to the appropriate contracting unit that it meets that equivalent set of standards set forth by the commissioner as promulgated.

(2) When such contract is to be performed at the expense of the State and is entered into by the Director of the Division of Building and Construction or State departments designated by the Director of the Division of Building and Construction, the director or the State departments may: (a) establish for that contract the amount of the bond at any percentage, not exceeding 100%, of the amount bid, based upon the director’s or department’s assessment of the risk presented to the State by the type of contract, and other relevant factors, and (b) waive the bond requirement of this section entirely if the contract is for a sum not exceeding $200,000.

(3) When such a contract is to be performed at the expense of a contracting unit or school district, the board, officer or agent contracting on behalf of the contracting unit or school district may: (a) establish for that contract the amount of the bond at any percentage, not exceeding 100%, of the amount bid, based upon the board’s, officer’s or agent’s assessment of the risk presented to the contracting unit or school district by the type of contract and other relevant factors, and (b) waive the bond requirement of this section entirely if the contract is for a sum not exceeding $100,000.

b. A surety’s obligation shall not extend to any claim for damages based upon alleged negligence that resulted in personal injury, wrongful death, or damage to real or personal property, and no bond shall in any way be construed as a liability insurance policy. Nothing herein shall relieve the surety’s obligation to guarantee the contractor’s performance of all conditions of the contract, including the maintenance of liability insurance if and as required by the contract. Only the obligee named on the bond, and any subcontractor performing labor or any subcontractor or materialman providing materials for the construction, erection, alteration or repair of the public building, work or improvement for which the bond is required pursuant to this section, shall have any claim against the surety under the bond.

c. A board, officer or agent contracting on behalf of the State, contracting unit or school district shall not accept more than one payment and performance bond to cover a single construction contract. The board, officer or agent may accept a single bond executed by more than one surety to cover a single construction contract only if the combined underwriting limitations of all the named sureties, as set forth in the most current annual revision of United States Treasury Circular 570, or as determined by the Commissioner of Insurance pursuant to R.S.17:18-9, meet or exceed the amount of the contract to be performed.

d. A board, officer or agent contracting on behalf of the State, contracting unit or school district shall not accept a payment or performance bond unless there is attached thereto a Surety Disclosure Statement and Certification to which each surety executing the bond shall have subscribed. This statement and certification shall be complete in all respects and duly acknowledged according to law, and shall have substantially the following form:

SURETY DISCLOSURE STATEMENT AND CERTIFICATION

…………………………, surety(ies) on the attached bond, hereby certifies(y) the following:

(1) The surety meets the applicable capital and surplus requirements of R.S.17:17-6 or R.S.17:17-7 as of the surety’s most current annual filing with the New Jersey Department of Insurance.

(2) The capital (where applicable) and surplus, as determined in accordance with the applicable laws of this State, of the surety(ies) participating in the issuance of the attached bond is (are) in the following amount(s) as of the calendar year ended December 31, ……… (most recent calendar year for which capital and surplus amounts are available), which amounts have been certified as indicated by certified public accountants (indicating separately for each surety that surety’s capital and surplus amounts, together with the name and address of the firm of certified public accounts that shall have certified those amounts):

………………………………………

………………………………………

………………………………………

(3) (a) With respect to each surety participating in the issuance of the attached bond that has received from the United States Secretary of the Treasury a certificate of authority pursuant to 31 U.S.C. 9305, the underwriting limitation established therein and the date as of which that limitation was effective is as follows (indicating for each such surety that surety’s underwriting limitation and the effective date thereof):

……………………………………..

……………………………………..

……………………………………..

(b) With respect to each surety participating in the issuance of the attached bond that has not received such a certificate of authority from the United States Secretary of the Treasury, the underwriting limitation of that surety as established pursuant to R.S.17:18-9 as of (date on which such limitation was so established) is as follows (indicating for each such surety that surety’s underwriting limitation and the date on which that limitation was established):

…………………………………….

…………………………………….

…………………………………….

(4) The amount of the bond to which this statement and certification is attached is $ …… .

(5) If, by virtue of one or more contracts of reinsurance, the amount of the bond indicated under item (4) above exceeds the total underwriting limitation of all sureties on the bond as set forth in items (3)(a) or (3)(b) above, or both, then for each such contract of reinsurance:

(a) The name and address of each such reinsurer under that contract and the amount of that reinsurer’s participation in the contract is as follows:…………………………

……………………………………

……………………………………

……………………………………..; and

(b) Each surety that is party to any such contract of reinsurance certifies that each reinsurer listed under item (5)(a) satisfies the credit for reinsurance requirement established under P.L.1993, c.243 (C.17:51B-1 et seq.) and any applicable regulations in effect as of the date on which the bond to which this statement and certification is attached shall have been filed with the appropriate public agency.

CERTIFICATE

(to be completed by an authorized certifying agent

for each surety on the bond)

I …………………… (name of agent), as ………………………………… (title of agent) for ………………………… (name of surety), a corporation/mutual insurance company/other (indicating type of business organization) (circle one) domiciled in ……………………. (state of domicile), DO HEREBY CERTIFY that, to the best of my knowledge, the foregoing statements made by me are true, and ACKNOWLEDGE that, if any of those statements are false, this bond is VOIDABLE.

…………………………………………
(Signature of certifying agent)

…………………………………………………
(Printed name of certifying agent)

……………………………………………….
(Title of certifying agent)

2A:44-144. Sureties on and amount of bond; condition for payment of claims; bond deposited, held for use of interested parties

The bond required by this article shall be executed by the contractor with such sureties in accordance with N.J.S.2A:44-147 as shall be approved by the board, officer or agent acting on behalf of the State, contracting unit or school district, in an amount equal to 100 per cent of the contract price. The payment bond shall be conditioned for the payment by the contractor of all indebtedness which may accrue to any person, firm or corporation designated as a “beneficiary” pursuant to N.J.S.2A:44-143, in an amount not exceeding the sum specified in the bond, on account of any labor performed or materials, provisions, provender or other supplies, or teams, fuels, oils, implements or machinery used or consumed in, upon, for or about the construction, erection, alteration or repair of the public building or public work or improvement.
The payment bond shall be deposited with and be held by the board, officer or agent acting on behalf of the State, contracting unit or school district, for the use of any beneficiary thereof.

2A:44-145. Statements of claimants filed with sureties on bond; time for action on bond

Any person who may be a beneficiary of the payment bond, as defined in this article, and who does not have a direct contract with the contractor furnishing the bond shall, prior to commencing any work, provide written notice to the contractor by certified mail or otherwise, provided that he shall have proof of delivery of same, that said person is a beneficiary of the bond. If a beneficiary fails to provide the required written notice, the beneficiary shall only have rights to the benefits available hereunder from the date the notice is provided.
Any beneficiary, as defined in N.J.S.2A:44-143, to whom any money shall be due on account of having performed any labor or furnished any materials, provisions, provender or other supplies, or teams, fuels, oils, implements or machinery in, upon, for or about the construction, erection, alteration or repair of any public building or other public work or improvement, shall, at any time before the expiration of one year from the last date upon which such beneficiary shall have performed actual work or delivered materials to the project, in the case of a material supplier, furnish the sureties on the bond required by this article a statement of the amount due to him.
No action shall be brought against any of the sureties on the bond required by this article until the expiration of 90 days after provision to the sureties and the contractor of the statement of the amount due to him, but in no event later than one year from the last date upon which such beneficiary shall have performed actual work or delivered materials to the project.

2A:44-146. Action on bond; limitation

If the indebtedness due to any person as shown by the statement required to be filed by N.J.S.2A:44-145 shall not be paid in full at the expiration of 90 days from the date of notice of the amount due to the person, such person shall, within one year from the last date that work was performed or materials were supplied by that person, bring an action in his own name upon the bond required by this article.

2A:44-147. Bond form; conditions

The bond required by this article shall be in substantially the following form:

“Know all men by these presents, that we, the undersigned as principal and as sureties, are hereby held and firmly bound unto in the penal sum of dollars, for the payment of which well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors and assigns.

“Signed this ……. day of ……………….. , 19….. .

“The condition of the above obligation is such that whereas, the above named principal did on the ………….. day of ……………………………., 19 …….., enter into a contract with , which said contract is made a part of this the bond the same as though set forth herein;

“Now, if the said ……………………….. shall well and faithfully do and perform the things agreed by …………………………….. to be done and performed according to the terms of said contract, and shall pay all lawful claims of beneficiaries as defined by N.J.S.2A:44-143 for labor performed or materials, provisions, provender or other supplies or teams, fuels, oils, implements or machinery furnished, used or consumed in the carrying forward, performing or completing of said contract, we agreeing and assenting that this undertaking shall be for the benefit of any beneficiary as defined in N.J.S.2A:44-143 having a just claim, as well as for the obligee herein; then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated.

“The said surety hereby stipulates and agrees that no modifications, omissions or additions in or to the terms of the said contract or in or to the plans or specifications therefor shall in anywise affect the obligation of said surety on its bond.”

Recovery of any claimant under the bond shall be subject to the conditions and provisions of this article to the same extent as if such conditions and provisions were fully incorporated in the form set forth above.

2A:44-148. Money paid to contractor trust fund for payment of claims

All money paid by the state of New Jersey or by any agency, commission or department thereof, or by any county, municipality or school district in the state, to any person pursuant to the provisions of any contract for any public improvement made between any such person and the state or any agency, commission or department thereof, or any county, municipality or school district in the state, shall constitute a trust fund in the hands of such person as such contractor, until all claims for labor, materials and other charges incurred in connection with the performance of such contract shall have been fully paid.

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