If the land based classification shows ownership is Federal government, but there is no bond in place (construction is public-private partnership), does the Miller Act still apply?
Aug 6, 2018
This is a common question, but it's important to clarify a few points. For one - is there truly no bond present, or is that an assumption based on the project being a public-private partnership (or "p3")? Just because a project may be considered a p3 project does not automatically mean that no bonding is present. Thus, in the event that a job is a p3 project and a claimant is unsure as to whether bonding is or is not present, then a claimant's best bet may be to request the bonding information from both the prime contractor and the public entity letting the project. While the contractor may be reluctant to provide this information (or may even be untruthful in responding to such a request), a public entity is required to provide information pertaining to the bond if it is requested. A form for that request can be found here. Anyway, whether or not a bond is present is actually a result of whether or not the Miller Act applies - not the opposite. That is - if the Miller Act doesn't apply, then a bond won't be present (rather than the other way around). So, if no bonding is present, that should be an indicator that the Miller Act does not apply to a given project. As we've noted before (like in this article: Public Private Partnerships – What’s The Protection?), perhaps the biggest issue with p3 projects is the potential lack of protection for those providing labor or materials. That is - if the underlying project property is publicly owned, then a lien claim won't be appropriate. If a lien claim isn't appropriate, then a bond claim would often be the substitute. However, bonding is not always present on p3 jobs. If there is truly no bond on a project that involves the federal government, then the odds are that bonding wasn't required because the project is not considered a federal public work of improvement. In such a scenario, other remedies - like threatening/filing a lawsuit - may still be a strong option for recovery. If no bond is present and a claimant believes that one should be present, a claimant could take further legal action making such an assertion - and reaching out to an attorney that has experience with federal Miller Act claims could be helpful in deciding how to proceed.