Virginia is a "Little Miller Act" jurisdiction, meaning that it requires payment protection bonds on state and local construction projects similar to the Federal Miller Act bond. Virginia, through the Public Procurement Act, requires a payment bond to protect contractors and suppliers on any project over $500,000, except for road and transportation projects where a payment bond is required for any project over $250,000.
Like the federal act, a supplier or contractor in Virginia who is not a direct contractor with the prime contractor (who posts the bond) has 90 days to notify the prime contractor by certified mail return receipt. In either case, whether notice is required or not, the contractor/supplier may not file suit before 90 days have elapsed since the last work has been done or materials have been delivered, but must file suit within one year of the day the last work was performed or materials were furnished. In other words, there is a window for a Claimant to file suit from 90 days through 1 year after the last date of furnishing material or labor to a project. The standard of proof for a material supplier is only that it furnished the material with a good-faith belief that it was to be used on the bonded project. The supplier is not required to prove that the material is part of the constructed project or even delivered to the project (as on a Mechanic's Lien).
Suit must be brought in the Circuit Court of the city or county where the project is located. Unlike the federal rules, Virginia sureties are not held to the same financial standards, so payment issues occasionally arise. Remember that the Virginia "Little Miller Act" applies to state, city, county, school board, redevelopment and housing authority, public college and mixed public/private projects. The rise in public-private venture projects covered by the Virginia Public Procurement Act is an often overlooked source of payment bond protection. Although projects over $500,000 are required to post payment bonds, there is no bar for posting on smaller projects. Some localities and agencies customarily require bonds on projects smaller than $500,000.
Like the federal act, only a direct contractor/supplier to the prime or its subcontractor is covered by the payment bond. Payment bonds are powerful sources of payment because they are fully liable for claims even when the defaulting contractor has been fully paid by the government or prime tier contractor.
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