Little Miller Act Modified to Mirror its Big Brother

Authored by Neil Lowenstein

Virginia’s “Little Miller Act” is nickname given to the portion of the Virginia Public Procurement Act that mandates payment and performance bonds for projects. The nickname is taken from the act’s Federal big brother for Federal procurements, nicknamed the “Miller Act.” For years, Virginia’s Little Miller Act differed in one substantial way from its big brother; having an extended 180 day notice requirement for lower tier claimants that was double that of the 90 day Miller Act notice. But effective last July that was changed, and the Virginia Miller Act notice was reduced to 90 days to mirror that of the Miller Act.

The General Assembly did not discuss how this decreased notice requirement would be applied. The statute itself does not make the change retroactive, and as a general rule Virginia law does not construe statutory changes as being retroactive without specific statement in the act otherwise. This leaves various possibilities, and the answer will lie in when a court concludes that the claimant's rights under the statute “accrued.”

One likely application is the accrual of a claimant's rights to pursue a payment bond claim being when it first furnishes labor or materials; which is when it would then have an accrued expectation of claim under the bond. However, there are arguments for accrual otherwise, including at one spectrum when the claimant entered into its contract to furnish the labor or materials or at the other spectrum the last performance or furnishing of work or materials, as either could be argued to trigger expectations.

We expect the law on this to flesh out on a case by case basis, as the courts weigh certainty for sureties against allowing recovery by claimants. In the interim, keep in mind this now quicker notice timeline for both making payment bond claims and defending against them.

Authored by attorney Neil Lowenstein, these articles are meant to bring awareness to these topics and are not intended to be used as legal advice.
For more information, contact Neil Lowenstein at 757-446-8626 or Bill Franczek at 757-446-8600.
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