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

Summary

The head of the agency must give a certified copy of the payment bond and the related contract to anyone who applies and signs an affidavit saying they supplied labor or material for the job and haven’t been paid or are being sued on the bond. That certified copy counts as proof of the original bond and contract. The applicant must pay any fee the agency sets to cover copying costs. Anyone who supplied labor or materials under a contract with a payment bond and is still unpaid 90 days after finishing their work can sue on the bond for what they are owed. If you only had a contract with a subcontractor, you can still sue if you give written notice to the contractor within 90 days saying the amount and who you supplied. The notice must be delivered with proof (for example, certified delivery to the contractor’s business or home, or served like a U.S. marshal would). Lawsuits must be filed in the U.S. District Court where the work was done, in the name of the United States for your use, and no later than one year after you finished the work or last supplied materials. The government won’t pay your legal costs. Any waiver of the right to sue is void unless it is written, signed by you, and signed after you 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