§3133 — Title 40 Public Buildings, Property, and Works | U.S. Code

Summary

Federal agencies must give a certified copy of the payment bond and the contract to anyone who asks and signs a sworn statement saying they supplied labor or materials for the project and have not been paid or are being sued. The certified copy counts as valid proof of the original bond and contract. Askers must pay any fee the agency sets to cover the cost of making the copy. If a person who supplied labor or materials is not paid in full within 90 days after their last work or delivery, they may sue on the payment bond for the unpaid amount. A supplier who had a direct contract with a subcontractor—but not with the main contractor—can also sue if they give written notice to the contractor within 90 days after their last work or delivery. The notice must state the amount claimed and the name of who got the work or materials, and it must be delivered with written proof of delivery or served like a U.S. marshal would serve papers. The lawsuit is filed in the name of the United States for the benefit of the claimant, in the federal district where the contract was to be done, and must be started no later than one year after the last work or delivery. The government will not pay the claimant’s legal costs. Any waiver of the right to sue on the bond is void unless it is written, signed by the supplier, and made after they provided the labor or materials.

Title 40, §3133

Public Buildings, Property, and Works — Source: USLM XML via OLRC

(a)The department secretary or agency head of the contracting agency shall furnish a certified copy of a payment bond and the contract for which it was given to any person applying for a copy who submits an affidavit that the person has supplied labor or material for work described in the contract and payment for the work has not been made or that the person is being sued on the bond. The copy is prima facie evidence of the contents, execution, and delivery of the original. Applicants shall pay any fees the department secretary or agency head of the contracting agency fixes to cover the cost of preparing the certified copy.

(b)(1)Every person that has furnished labor or material in carrying out work provided for in a contract for which a payment bond is furnished under section 3131 of this title and that has not been paid in full within 90 days after the day on which the person did or performed the last of the labor or furnished or supplied the material for which the claim is made may bring a civil action on the payment bond for the amount unpaid at the time the civil action is brought and may prosecute the action to final execution and judgment for the amount due.

(2)A person having a direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor furnishing the payment bond may bring a civil action on the payment bond on giving written notice to the contractor within 90 days from the date on which the person did or performed the last of the labor or furnished or supplied the last of the material for which the claim is made. The action must state with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. The notice shall be served—

(A)by any means that provides written, third-party verification of delivery to the contractor at any place the contractor maintains an office or conducts business or at the contractor’s residence; or

(B)in any manner in which the United States marshal of the district in which the public improvement is situated by law may serve summons.

(3)A civil action brought under this subsection must be brought—

(A)in the name of the United States for the use of the person bringing the action; and

(B)in the United States District Court for any district in which the contract was to be performed and executed, regardless of the amount in controversy.

(4)An action brought under this subsection must be brought no later than one year after the day on which the last of the labor was performed or material was supplied by the person bringing the action.

(5)The Government is not liable for the payment of any costs or expenses of any civil action brought under this subsection.

(c)A waiver of the right to bring a civil action on a payment bond required under this subchapter is void unless the waiver is—

(1)in writing;

(2)signed by the person whose right is waived; and

(3)executed after the person whose right is waived has furnished labor or material for use in the performance of the contract.

Notes & Related Subsidiaries

Historical and Revision Notes

Revised SectionSource (U.S. Code)Source (Statutes at Large) 3133(a)40:270c.Aug. 24, 1935, ch. 642, § 3, 49 Stat. 794; Pub. L. 86–135, § 2, Aug. 4, 1959, 73 Stat. 279; Pub. L. 98–269, Apr. 18, 1984, 98 Stat. 156. 3133(b)(1), (2)40:270b(a).Aug. 24, 1935, ch. 642, § 2(a), (b), 49 Stat. 794; Pub. L. 86–135, § 1, Aug. 4, 1959, 73 Stat. 279; Pub. L. 106–49, § 2(b), Aug. 17, 1999, 113 Stat. 231. 3133(b)(3)– (5)40:270b(b). 3133(c)40:270b(c).Aug. 24, 1935, ch. 642, § 2(c), as added Pub. L. 106–49, § 2(c), Aug. 17, 1999, 113 Stat. 231. In subsection (b)(1), the words “may bring a civil action” are substituted for “shall have the right to sue” for consistency in the revised title and with other titles of the United States Code. The words “or sums” are omitted because of 1:1. In subsection (b)(2), the words “to the contractor at any place he maintains an office or conducts his business, or his residence, or in any manner in which the United States marshal of the district in which the public improvement is situated is authorized by law to serve summons” are restated to reflect the probable intent of Congress. See H. Rept. 106–277, Part 1, 106th Cong., 1st Sess., pp. 4, 7. In subsection (c), the words “bring a civil action” are substituted for “sue” for consistency in the revised title and with other titles of the United States Code.

Editorial Notes

Amendments

2006—Subsec. (b). Pub. L. 109–284, § 6(9), substituted “To” for “to” in heading. Subsec. (c). Pub. L. 109–284, § 6(10), inserted heading.

§3133 Rights of persons furnishing labor or material