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Washington State - Public Project Preliminary Notice

WashingtonPreliminary Notice

We are a material supplier for a public project in Washington state and we are supplying material for both the general contractor and the subcontractor. Unfortunately, we are having some difficulty collecting from the subcontractor and we did not send a preliminary notice to the general within the 10-day window. Since we are supplying material for both the general and the sub, do we still have rights to claim against the bond even though we did not send a preliminary notice in time?

1 reply

Sep 12, 2018
That's a tough situation. On one hand, the basic point of preliminary notice is to notify the recipient that you're providing labor and/or materials on the job. If you're proving materials to both the prime contractor and their subcontractor, and if that prime knows you're also supplying the sub, it would seem that the purpose of the notice has been fulfilled - the prime contractor knows that you're providing labor and/or materials to the job and a subsequent bond claim. However, Washington's Little Miller Act is very clear. When supplies are furnished to a subcontractor, 39.08.065 of Washington's Little Miller Act states that "no suit or action shall be maintained in any court against the contractor or his bond to recover for such material, supplies or provisions or any part thereof" unless the notice provisions have been complied with. Note that the quoted section does not prohibit making a claim to the surety or the contractor, or threatening to do so. Rather, it only prohibits the enforcement of a bond claim via a court (lawsuit). So, potentially, a claimant could send a claim to the surety and the contractor for unpaid amounts in hopes that the claim would be paid. However, if unpaid, such a bond claim could likely not be enforced in court. Of course, note that other recovery options could be fruitful, too - like sending a demand letter or threatening other legal action against the subcontractor (such as a breach of contract claim, an unjust enrichment claim, or a prompt payment claim) could be effective, among a number of other potential options.
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