SUMMARY OF STEPS NECESSARY TO PERFECT A PUBLIC WORKS CLAIM - OREGON AND FEDERAL

By Michael J. Scott

Table of Contents

• Oregon Public Works Projects summary chart
• Oregon Notes
• Federal Public Works Projects summary chart
• Parties Protected by a Miller Act Bond
• Federal Notes
• Go to Summary of Steps to Perfect a Construction Lien in Oregon
• Return to Scott Hookland Home Page

SUMMARY OF STEPS NECESSARY TO PERFECT AN OREGON PUBLIC WORKS CLAIM

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Oregon Notes:
(See also Federal Notes below):

1. The Oregon Little Miller Act does not specify "who" at the state agency is supposed to receive the notice. While some state agencies may attempt to adopt specific administrative rules to specify exactly who the notice should be sent to, the legislative history of the bill suggests that it is incumbent upon the state agency to route the notice to the appropriate person after it is received. Nonetheless, to avoid any question on this issue it is suggested that separate notices to the state agency be directed to: (1). The name of the state agency that let the contract (CAUTION!! This might not be where the work is being done); (2). The state agency c/o the project manager; and (3). The state agency c/o the agency's clerk, auditor, director or manager.
   
2. You should ensure that notice is actually received before the time period expires. The time period may not be extended if the last day falls on a Saturday, Sunday or other legal holiday.
   
3. You should also consider giving notice directly to the surety (the bonding company) as this may expedite payment and may also commence the six month time period for the recovery of attorney fees against the surety under ORS 742.061.
   
4. At least two notices must be sent:
   a. One to the state agency that let the contract or the clerk or auditor of the public body if the public body that let the contract is other than a state agency; and
   b. One to the contractor who furnished the bond.
   
5. You should make sure that the public body did not except the project from the requirements for a bond and make sure that if a bond was required it was the "right" bond. (For example, the public body for some reason may have required a bond form similar to the federal requirements which differ from the state requirements).
   
6. You should consider complying with any applicable Oregon Administrative Rules adopted by state agencies related to the notices.

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SUMMARY OF STEPS NECESSARY TO PERFECT A FEDERAL PUBLIC WORKS CLAIM

ONLY THE PARTIES ABOVE IN BOLD ARE PROTECTED BY A FEDERAL MILLER ACT PAYMENT BOND.

THOSE IN WHITE ARE NOT PROTECTED. * Written Notice of Claim required

Federal Notes:

1. This chart does not necessarily apply to Oregon's Little Miller Act! Litigation (although not a full formal written appellate court opinion) concerning protected parties under the Oregon Little Miller Act has found that persons below the dashed bar in this chart can be protected parties under the Oregon act. If you do not have a direct contractual relationship with the prime contractor, you must give written notice to the contractor within ninety (90) days from the date you last performed labor or furnished material or services for which your claim is made (see above).

2. You should also consider giving notice to the contracting officer for the Federal Project and to the surety (the bonding company) as this may expedite payment.

3. Some public works contracts (both State and Federal) are divided in sections. While working on one project (i.e. light rail) you may be working under more than one contract and thus more than one notice may be required. Some projects which you may think are a "State Project" may be a federal project. You should confirm the type of bond before you bid the project.

4. The language of the Miller Act no longer limits service of claims to only registered mail. Now, any means that allows independent third-party verification is permitted.

You should insure that notice is actually received before the time period expires. The time period may not be extended if the last day falls on a Saturday, Sunday or other legal holiday.