Home>Levelset Community>Legal Help>Can the parties' actions waive the requirement to provide a payment bond?

Can the parties' actions waive the requirement to provide a payment bond?

If the subcontractor starts and completes its work without first providing the payment bond to the contractor and now claims it is unable to secure the bond because the work is finished and it has not paid its subcontractor or suppliers and they are threatening to file liens, can the contractor require specific performance of the contract - the provision of a payment bond - now?

1 reply

Feb 3, 2020

Missouri subcontractors are not required, by statute, to provide payment bonds for their sub-subcontractors and suppliers. The Missouri Little Miller Act does require contractors to provide those bonds, but subcontractors generally aren't required to do so. Granted, if the contract between a contractor and their sub calls for a payment bond, then the subcontractor may well be required to provide that bond. As you mentioned above, though, failure to enforce a contract provision could ultimately be treated as a waiver of the contractual requirement. And, it might be tough to enforce a requirement for a subcontractor to provide a bond before the project ever began at the end of the job. Though at the same time, many contracts will include language that rebukes the idea that a contractual requirement is waived if it's not specifically enforced. So it could come down to the specific language in the agreement. Ultimately, I'm not sure the issue will be quite black and white. And, even if the requirement is enforceable, it might take the threat of attorney to push a subcontractor to go out and secure a bond (if that's even possible). If it looks like things are headed in that direction, it might be a good idea to consult a local Missouri construction attorney to have them assess the contract and relevant terminology, then advise how to move forward in your situation.

0 people found this helpful

Helpful