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Can I still submit a 3rd month notice, if I missed the March 15th deadline for a December 2018 invoice?

TexasBond Claims

We are a subcontractor in Texas, hired by GC for a bonded job in Houston, Tx, the December bill has not been paid and missed the March 15th deadline. Is it to late to submit a notice? I also have a January invoice that has not been paid. My boss had me bill out the job 100%, plus CO's, and a separate invoice for retainage for March. Can I send a notice for all outstanding billing, or do I have to send a separate one for each month?

1 reply

Mar 21, 2019

Good question. Since you mentioned the project is bonded, I'll assume this is a public project. If that's not the case, keep in mind that the information found on the Texas Lien & Notice FAQs page might be helpful. But, assuming this is a public project, let's look at the requirements for Texas claimants. In Texas, subcontractors hired by the prime contractor need not send 2nd month notices in order to preserve their right to lien. However, the 3rd month "notice" is still required - and, in actuality, that 3rd month notice serves as the bond claim itself. In order to make a claim on the project's bond, a claimant must make their claim on a rolling basis - a claim must be sent on the 15th day of the 3rd month after each month when work was performed but unpaid. The claim must be sent to both the prime contractor who posted the project's bond, as well as their surety. Keep in mind that these deadlines tend to be pretty strict - and in the event that a claimant fails to provide notice, it's certainly possible that they won't be able to recover payment from the bond for amounts owed and unpaid in the month where notice wasn't properly sent. Note, though, that just because the deadline for one month passes does not mean that a claimant won't be able to recover payment owed for another month on that same project. i.e. While a claimant might miss their deadline to send a 3rd month notice/claim in one month, if they go unpaid for work that's performed in the following month, a payment claim for the work performed in the following month might still be claimed against the bond. Keep in mind, though - warnings or threats made to compel payment could still be effective, even where the ability to make a bond claim for some work performed may no longer be available. For more on Texas public projects, this resource should be valuable: Texas Public Project FAQs. For more on Texas bond claims specifically, this resource should help: How to Make a Texas Payment Bond Claim.

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