Frontier Contr. Inc. v. Allen Eng’g Contr., Inc., 2014 U.S. Dist. LEXIS 136474 (E.D. Cal. Sept. 2014)

Frontier Contracting Inc. (Frontier) entered into a teaming agreement with Allen Engineering Contractor, Inc. (Allen) to complete two U.S. Federal Highway projects in Sequoia and Kings Canyon National Parks.  During the course of the projects, disputes arose and Allen refused to issue full payments to Frontier.  Frontier then filed a complaint against Allen alleging, in part, a Miller Act claim.


Continue Reading U.S. District in California Discusses Distinctions between Joint Ventures and Subcontractor Relationships for Miller Act Purposes

United States ex rel. Heggem-Lundquist Paint Co. v. Centerre Gov’t Contracting Grp., LLC, 2014 U.S. Dist. LEXIS 66161 (D. Colo. Apr. 23, 2014) 
 Am. Constr. & Envtl. Servs. v. Total Team Constr. Servs., Inc., 2014 U.S. Dist. LEXIS 57467 (E.D. Cal. Apr. 23, 2014)

Federal district courts for the District of Colorado and the Eastern District of California have ruled  subcontract provisions that disputes will be resolved in accordance with the dispute resolution provisions in a prime contract are insufficient to waive or postpone a subcontractor’s Miller Act rights.

These cases involved claims asserted by subcontractors (collectively “Plaintiffs”) against the upstream contractors and their sureties (collectively “Defendants”) for work performed on federal government projects.  The plaintiff in Haggem-Lundquist performed as a sub-subcontractor on a Department of Veterans Affairs renovation project at a medical center in Denver, Colorado.  The plaintiff in Am. Constr. & Envtl. Servs. performed as a subcontractor in support of a contract with the Army Corps of Engineers to replace emergency generators at a Veterans Administration Care Facility in Fresno, California.  In both actions, Plaintiffs filed claims against the bonds issued for the projects pursuant to the Miller Act to recover money allegedly owed for changed and additional work performed.


Continue Reading District Courts in California and Colorado Hold Subcontract References to Prime Contract Disputes Procedures Do Not Waive Miller Act Rights

Technica LLC v. Carolina Casualty Ins. Co., 749 F.3d 1149,2014 U.S. App. LEXIS 8023 (9th Cir., April, 29, 2014)

This payment dispute arose out of the ICE El Centro SPC – Perimeter Fence Replacement/Internal Devising Fence Replacement federal project in California.  Candelaria was the prime contractor.  Candelaria entered into subcontract with Otay, who contracted with Technica to act as a sub-subcontractor.  After submitting invoices for labor, material and services, Technica received only partial payment for its work.

Technica filed a Miller Act claim authorized by federal statute  to recover the outstanding amount owed on its sub-subcontract against Candelaria’s payment bond.  Candelaria and its surety filed a motion for summary judgment, arguing that the California Business and Professions Code precludes any contractor from maintaining a collection action, unless the contractor was licensed during the performance of the contract.  Since Technica lacked a California contactor license, the district court held that Technica could not pursue a Miller Act claim.


Continue Reading Ninth Circuit Holds Subcontractor’s Lack of License Required By California Law Did Not Bar Its Pursuit of Federal Miller Act Claim

United States ex rel. Tymatt Indus. v. Allen & Shariff Constr. Servs.
2013 U.S. Dist. LEXIS 114015 (D. Md. Aug. 13, 2013)

This action arose out of a subcontractor’s Miller Act claim for unpaid contract balances on a federal construction project. Allen & Shariff Construction Services, LLC (“Allen & Shariff”) was the prime contractor on a federal contract for the construction of a dam in Bethesda, Maryland, and related remediation (the “Project”). United States Security Company (“USSC”) was the surety on the Miller Act payment bond for the Project. Allen & Shariff subcontracted with Tymatt Industries, Inc. (“Tymatt”) to perform work on the Project (the “Subcontract”). The Subcontract contained a default provision stating that “should Tymatt fail to perform, after giving three days written notice Allen & Shariff had the option to terminate the [S]ubcontract for default if the defective performance was not cured.” Allen & Shariff issued three such notices to Tymatt, the last of which was issued on November 11, 2011. When Tymatt failed to cure, USSC sent Tymatt a termination notice on November 18, 2011 stating that the “[S]ubcontract…has been terminated due to lack of performance effective immediately.” Additionally, Allen & Shariff notified Tymatt that its “base access privilege [would] be terminated on November 23, 2011,” and requested that its equipment be removed prior to that date. Tymatt subsequently alleged that Allen & Shariff failed to pay $107,665.26 in amounts owed for work performed under the Subcontract. On Monday, November 26, 2012, Tymatt filed a Miller Act claim against USSC, as surety, to recover the monies allegedly due and owing.


Continue Reading U.S. District Court in Maryland Holds Work Performed After Termination Does Not Delay Commencement of One-Year Miller Act Statute of Limitations

United States of America ex rel D&M General Contracting, Inc v. Arch Ins. Co.
2013 U.S. Dist. LEXIS 111260 (D. Md. Aug. 5, 2013)

This action arose out of subcontractor’s claim for increased costs allegedly incurred as a result of delays on a federal government project. NTVI Enterprises, LLC (“NTVI”), as general contractor, entered into an agreement with the government to upgrade the chiller plant for a National Security Agency facility (the “Project”). NTVI posted a labor and material payment bond for the Project (the “Bond”) issued by Arch Insurance Company (“Arch”). NTVI then subcontracted with D&M General Contracting, Inc. (“D&M”) to perform electrical work on the Project. Midway through the Project, D&M alleged that the sequence of its work was altered by the government resulting in an additional $206,674.07 in costs to D&M. Pursuant to the Miller Act, D&M filed suit against Arch, as surety, to recover under the Bond its increased costs allegedly incurred.


Continue Reading U.S. District Court in Maryland Holds One-Year Statute of Limitations Under Miller Act Did Not Commence Until After Required Testing Performed by Subcontractor

National American Insurance Company v. United States
No. 2007-5016, 2007 U.S. App. LEXIS 20058 (Fed. Cir. August 23, 2007)
The US Court of Appeals for the Federal Circuit upheld the lower court’s grant of a motion for summary judgment. The Court held that a payment bond surety is equitably subrogated to the rights of the contractor whose debt it discharges, and thus can pursue a claim directly against the government.
The case arose out of a contract between Innovative PBX Services, Inc. (“Contractor”) and the United States Small Business Administration (the “government”) for the replacement of a telephone system at the Department of Veterans Affairs Medical Center. The Contractor subcontracted part of the work to Nortel Communications Systems, Inc. (“Subcontractor”). As required by the Miller Act, the Contractor executed payment and performance bonds in favor of the government with National American Insurance Company (“Surety”) as the surety. After completion of the contract work, the Subcontractor notified the Surety that it was owed approximately $675,000 for labor and materials that the Contractor had failed to pay for. The Subcontractor then instituted a Miller Act claim under the payment bond against the Surety, which the Surety settled. The Surety also notified the government that no addition payments should be made to the Contractor in light of the Miller Act claim and requested that all remaining contract funds be held for the Surety’s benefit. The government, however, did not follow the Surety’s request and made its final contract payment to the Contractor. As a result, the Surety filed a complaint against he government seeking damages of $280,000.
Continue Reading Federal Circuit Court of Appeals Holds that a Payment Bond Surety that Discharges a Contractor’s Obligation to Pay a Subcontractor is Equitably Subrogated to the Rights of Both the Contractor and Subcontractor and May Bring Suit Directly Against the United States

United States of America, for the Use and Benefit of Evergreen Pipeline Construction Co., Inc. v. Me,
No. 90 Civ. 5106, 890 F. Supp. 1213, 1995 U.S. Dist. LEXIS 9385 (S.D.N.Y. July 7, 1995)
Oral Requests for Extra Work – Under New York law, either oral directions to perform extra work, or a general course of dealing may effectuate a waiver or modification of contract provisions which otherwise expressly require written authorization or notice of such extra work claims. No Damage for Delay – Under New York law, an exculpatory “no damage for delay” clause will not be enforced where the delay was: 1) not contemplated by the parties 2) caused by the contractor’s bad faith, or willful, malicious, or grossly negligent conduct; 3) so unreasonable that it constituted an intentional abandonment of the contract; or, 4) the result of a fundamental breach of the contract by the contractor. Punitive Damages – Punitive damages on purely contractual claim will not be awarded where there is insufficient evidence for a jury to conclude that public rights were implicated or that objectionable conduct was directed at the public generally. Prejudgment Interest – Subcontractor is entitled to prejudgment interest for services rendered seven years before judgment was entered. Rule 11 Sanctions – Defendants’ assertion of a civil RICO counterclaim without sufficient basis therefor warrants imposition of sanctions under Rule 11. Attorney’s fees awarded as a Rule 11 sanction is a matter committed solely to the discretion of the district court. In ascertaining “reasonable” fees, the court must bear in mind that the principrned a verdict in favor of subcontractor Evergreen and found that Merritt materially breached the subcontract and that certain provisions regarding extra work and delay damages were either waived or eliminated by the parties. Merritt filed various post trial motions challenging the jury’s verdict regarding: the oral requests for extra work under a contract which required that all such requests be in writing; the award of delay damages under a contract with an express “no damage for delay” provision; and challenging the propriety of permitting a claim for punitive damages to be submitted to the jury. Evergreen also filed various post trial motions seeking prejudgment interest and attorney’s fees incurred in defending baseless civil RICO claims.

Continue Reading District Court in New York Finds Evidence Sufficient to Support Waiver of Written Change Order Requirement and Bad Faith Exception to Enforceability of "No Damage for Delay" Clause in Subcontractor Miller Act Suit