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What are the Bond Claim Deadlines?
Let us start with the basics which is to make sure that everyone has an understanding of what the bond claim deadlines are because you will have no rights if you do not timely comply with the requirements of both the bond and Florida statutes regarding the bond claim process.
Now this can be broken down into two sections. You are either working on a job that is a public job or a private job. In each of these situations, the job may be bonded.
a. Private bonded projects
If you are working on a private project, this can be a condo tower, an office building, or a warehouse. If the contractor has a bond, these are the requirements that you need to follow.
i. General rules for subcontractors
Send Notice to Owner
If you are a subcontractor, it means you have a direct contract with the general contractor and that is the party that has the bond. So if the contract is with the bonded prime contractor, you do not need to send a Notice to Owner/Notice to Contractor, or any other type of preliminary notice.
But having said that, it is strongly recommended that you do it. You should have a system in place in your office so that any job over a certain amount of money gets noticed no matter what. That could be $500 or $2,500, but any time you have a construction project that is more than that number, you automatically send a Notice to Owner.
This way you do not need to worry about situations in which sometimes you have to send a notice or you do not. It is those nuances in the lien law that when people try to manage, they end up making mistakes.
If you have a contract with the bonded contractor, which makes you a subcontractor, you do not need to send a Notice to Owner.
Send Notice of Nonpayment
The next notice you have to send is what is called a Notice of Nonpayment. It is a specific form found in Florida statutes, and that needs to be received by the contractor and surety no later than 90 calendar days from your last work or delivery of materials on the project.
You can do the Notice of Nonpayment yourself or you can hire a company like us, Sunray to do it.
This notice must be served via certified mail. Ninety days is not the same as three months; it is 90 calendar days starting from the first day after your last day of work. So, if you deliver your last palette of materials to the job site today, tomorrow is Day 1 and you count all calendar days, weekends, and legal holidays, all the way through the 90 days.
If the 90th day happens to land on a Saturday, Sunday, or legal holiday then you should roll it to the next day. So, if the 90th day is a Saturday, it rolls to Sunday. Sunday rolls to Monday, and if Monday happens to be a holiday, it will finally roll to Tuesday.
There are instances when you may have more than 90 days, but it is very rare. And it has to be received by the other side by the 90th day. So, if you are putting it in the mail, and sending it out by certified mail on the 89th day, it is probably not going to make it there in time.
So, you need to work on this early. Obviously you can send it overnight mail, but that still also is not guaranteed.
File suit on the bond
The last requirement is that you need to file a lawsuit on your claim against the bond no later than one year from your last delivery of materials or work on the job.
So, as a subcontractor on a bonded project, these are the rules that you need to make sure you follow.
ii. General rules for sub-subcontractors, material suppliers to subcontractors, and sub-subcontractors
Now if you are not the subcontractor, maybe you are a sub-subcontractor, a material supplier to the subcontractor or a material supplier to the sub-subcontractor, the rules are slightly different.
Send Notice to Owner
Step one is that if you are in that category, you do need to send a Notice to Owner/Notice to Contractor no later than 45 days from your first work or delivery of materials on the project 45 days is the date in which that document needs to be received. You should be doing it much sooner than that.
Send Notice of Nonpayment
You also need to serve that Notice of Nonpayment no later than 90 days from your last work or delivery of materials on the construction project.
File suit on the bond
You should file your lawsuit on the bond within one year of your last work or delivery of materials to the project.
The lawsuit has to be a real lawsuit. You have to hire a lawyer, and they have to file the lawsuit with the court and it has to be no later than one year from your last date of work or delivery of materials to the job site. It does not matter was the surety may say. Whether it is them investigating the claim, that they will get back to you, you may have filled out paperwork and sent it in, but none of that changes the one-year deadline.
So do not be fooled by thinking that something has happened that gives you more time than that one year.
Check for subcontractor bonds
If you are a sub-subcontractor or material supplier to the subcontractor, or material supplier to the sub-subcontractor, there may in fact be another bond that you can make a claim against. That is the bond of the subcontractor. There are instances in which the prime contractor may not be bonded, and you may have lien rights on the project.
But at the same time, the subcontractor may have a bond. You may make a claim against that subcontractor payment bond. But how do you know if you are a sub-subcontractor if the subcontractor has a bond? The best way to find out is to ask the general contractor. That subcontractor bond will not be recorded in the public record. There may be no evidence in the court filings, or in the public records of the county where the project is located because there is no obligation to record it.
However, if you reach out to the general contractor, they will likely give you a copy because they want to make sure that if you have a claim, that you go after the subcontractor’s bond, which is why they will likely want the subcontractor to have a bond, and leave them alone.
So, you can make a written request to the contractor. It is suggested that you simply start with asking them by sending an email. But there is a formal process through which you can request a copy of the bond of the subcontractor. You send that request in writing via certified mail to the contractor and you can also send it to the subcontractor, and they are obligated to give you a copy of that bond.
If this subcontractor has a bond, you have rights against that sub-bond in addition to possibly also having lien rights or rights against the general contractor’s bond. So just know that that bond may exist. We typically see it on much larger jobs where the subcontractor’s contract value is very large. So, in order mitigate some risk, the contractor may demand that the subcontractor provide a bond.
Just also know that if you happen to have messed up your dates, like maybe you did not timely serve a Notice to Owner or you were late on your Notice of Nonpayment or lien, if the subcontractor has a bond, even if you missed your lien or prime contractor bond deadlines, you can always go after the subcontractor’s bond.
Subcontractor bonds are governed by whatever the terms of that bond are. That is why you need to get a copy, so that you can read it and determine what you have to do to make a claim.
b. State public bonded projects
Now we come to public bonded projects. A public bonded project is a public school or a public hospital, but not all schools and hospitals are public. It could be a private school, charter school, or private hospital. So keep in mind that not every school, hospital, or facility that would normally seem public, is automatically public.
i. General rules for subcontractors
So, assuming that you are working on a state public bonded project, here are the rules.
Notice to Owner
If you are a subcontractor, meaning that you have a contract with the bonded prime contractor, you do not need to send a Notice to Owner. This document goes out 45 days from your first work. It is not required if you are a subcontractor to a bonded prime contractor on a public job.
Notice of Nonpayment
Most people also do not know this – you do not need send a Notice of Nonpayment either. This document goes out no later than 90 days from your last work.
File suit on the bond
There is only one requirement if you are a subcontractor to a bonded contract on a public job – you have to file a lawsuit within one year of your last work or delivery of materials to the project.
Now, even though you there is not requirement to send a Notice to Owner or Notice of Nonpayment, you are strongly encouraged to do so. You should get into the habit of knowing that no later than 45 days you are going to serve your Notice to Owner, and within no later than 90 days you are going to record a lien serve your Notice of Nonpayment.
But in the off chance that you are working on a state public bonded project, you do not need to send either of them and you would still have rights on the general contractor’s payment bond.
ii. General rules for sub-subcontractors, material suppliers to subcontractors, and sub-subcontractors
If you are a sub-subcontractor, material supplier to a subcontractor, or a sub-subcontractor, you now need to do everything.
Notice to Owner/Notice to Contractor
You need to timely serve a Notice to Owner no later than 45 days from your first work or delivery of materials on the project.
Notice of Nonpayment
You need to serve a Notice of Nonpayment no later than 90 days from your last work.
File suit on the bond
You need to file your lawsuit no later than one year from your last work or delivery of material on the project.
Check for subcontractor bonds
Remember that just like on public jobs, the party that you have a contract with or the party that stands between you and the general contractor may have a bond. And if they do, you may be able to make a claim against that subcontractor’s bond.
I Sent My Notice of Nonpayment to the Surety, What Next?
Now that you know what are the rules are and many exceptions, once you send in that Notice of Nonpayment to the surety, what is next?
a. The Notice of Nonpayment only starts the process
The first thing to note is that the Notice of Nonpayment is only the start of the process.
b. Claimants receive letter asking for information and a proof of claim
You will typically receive a letter back from the surety saying that they have received your claim and they need more information in order to make a decision about the claim.
You may be asked to fill out a document called a proof of claim in which they ask dates of first work, dates of last work, amounts that you have been paid, amounts that you are due and other information like copies of your contract, invoices, and pay requests. You can provide all of that information if you like.
c. For bond claimant to bonded contract, no obligation to provide proof of claim
If you are a bond claimant under a bonded contractor, meaning that you are making a claim under the prime contractor’s bond there is no legal obligation in Florida to provide that proof of claim or to respond to any of that information. You can if you would like to though. It does not hurt and typically, sureties request this information not because they want to pay you, but because they are hoping that there is some information you give them that is the basis of being able to deny your claim.
d. For claimants to subcontractor bond, you must comply with requirements in sub-bond
However, keep in mind that if you make a claim on a subcontractor’s payment bond, you have to comply with all of the requirements in the subcontractor bond. So subcontractor bonds are not governed by Florida statutes specifically. They are governed by the terms of the bond. This means that whatever the bond says, that you have to do whatever that subcontractor bond says you have to do in order to make a claim.
It may say that if you are making a claim on the subcontractor bond, that you need to serve a proof of claim. If that is what it says, then that is what you have to do to make a claim on that sub-bond. So, keep that in mind if you are responding to a subcontractor bond request for information. You will likely have to comply with all of those requirements.
e. Most sureties will not pay you voluntarily unless principal agrees to pay you first
Most sureties will not voluntarily pay you unless the principal agrees to pay you first. Understand that surety bonds are not insurance. It is not like when you get in a car accident, you call an insurance company, they adjust the claim, cut you a check for $5,000 or $10,000 for the damage to your car. Your insurance premium may go up the following year but they do not ask you to send back the $5,000 or $10,000 that they paid you.
Security ship is different, it is an indemnity product. The surety or bonding company has an agreement with the bonded contractor that says if the surety has to write a check for any amount of money, they expect you as the contractor to back all of that money. Many times, the contractor has the husbands or wives of the principals sign personally so that there are personal guarantees back to the surety company.
The surety is looking to be made whole. Who are they looking to be made whole from? It is from the contractor that they gave the bond to. So, they do not want to write a check unless they know they are going to be reimbursed. That is why most sureties will not pay you voluntarily unless the principal (the bonded contractor) agrees to you pay you first.
The bonded contractor may not be willing to pay you because maybe they had not been paid. That is why you will find that most sureties do not just write a check so easily.
f. Watch out for a shortening of your claim period
There are ways for the contractor and the surety to shorten the time that you have to file your lawsuit. If that occurs, there are specific legal documents that they can file. You will get those by certified mail so just be aware that there are ways that they can shorten the time from one year down to 60 days.
g. Watch out for the surety company waiting you out
One of the things that some sureties do, is they wait you out. You have one year to file a lawsuit from your last date of work.
For example, there is someone who is owed about $100,000. He submits their Notice of Nonpayment; the surety writes back that they filled out the proof of claim. Every few months he follows up with the surety about what is going on and the surety would say that they would get right back but that they are checking and that they got more information, and they would be back in touch.
A year and a month pass, and then the surety company sends a letter to the person owed money saying that they finished the review of the claim, it is time barred, and that he is not being paid anything.
So, do not be lulled into any false sense of security that the surety is doing anything. You have to keep that one-year deadline calendared so that you do not let it go past that time.
When Will they Pay Me?
Now you may be wondering when you will get paid.
a. Practice the 60-60 rule
It is strongly urged to practice what is called the 60-60 rule.
b. Sixty days from last work to submit Notice of Nonpayment
No later than 60 days from your last work, is when you should start the process of preparing your Notice to Nonpayment. Do not wait till Day 80, Day 85, or Day 88. About Day 60 from your last day of work on the job. If you have not been paid, you need to start the process of putting together that Notice of Nonpayment.
Once you submit your Notice of Nonpayment, you are strongly encouraged for the next 60 days to hassle your customer and the surety company and to call them, send emails, write letters, show up in people’s offices. Be really persistent in your effort to get paid.
c. Submit claim to construction lawyer for collection
But if after those 60 days you have been unable to achieve any significant headway, that is when you should call a construction lawyer to start the collection process. The claims that are brought closer in time to when the Notice of Nonpayment was sent, typically resolve better and faster than those where they wait 11 months and two weeks for example, before they call an attorney.
This is often right before the one-year deadline strikes. Project managers will have moved on, people may leave the jurisdiction, people may die, and documents may disappear or have been deleted. As more time passes, your claim typically gets harder and harder to prove. So, it is suggested to do it sooner rather than later. Except for business reasons, you should not delay pursuing your claim.
You may think it is only a $10,000 claim, that you have $100,000 with this contractor, you are not going to do anything yet, or wait as the project goes on. That is a valid business reason to wait. But if you do not have a valid, reason it is suggested that you pursue your claim sooner rather than later.
