Florida federal court: late Miller Act suit fails, and a missing default notice sinks a performance bond claim

Published: October 8, 2026 · Last verified: October 8, 2026 (PT)

A federal court in Florida has thrown out a subcontractor’s Miller Act payment bond claim because the lawsuit came roughly two years after the subcontractor’s last day of work — double the one-year deadline in the statute. In the same order, one surety escaped a performance bond claim because the general contractor never declared the subcontractor in default to that surety before suing. Both lessons matter to anyone who relies on a construction bond: a bond only pays if the claimant follows its rules and deadlines.

The case at a glance

What happened on the job

According to the order, the barracks projects “were plagued by delays,” and Sauer and United Structures argued over payments, change orders, site access, quality of work and schedules. United Structures eventually told Sauer it would do no more work on buildings 2387 and 2389. The parties agreed that United Structures’ last day of labor or materials was no later than September 9, 2022.

United Structures then submitted payment bond claims to Federal Insurance, the surety on Sauer’s federal payment bond. Federal Insurance told United Structures it had found a “bona fide dispute” about what, if anything, was owed, and invited more documentation. The court noted that United Structures kept pursuing the claim with the surety into May 2023. The lawsuit was not started until September 11, 2024.

Lesson 1: the Miller Act’s one-year suit deadline is real

The Miller Act is the federal law that requires prime contractors on most federal construction contracts to post a performance bond (protecting the government) and a payment bond (protecting subcontractors and suppliers who are not paid). Because a subcontractor cannot put a lien on federal property, the payment bond is usually its main safety net. That safety net comes with a hard time limit: a suit on the bond “must be brought no later than one year after the day on which the last of the labor was performed or material was supplied” (40 U.S.C. § 3133(b)(4)).

United Structures argued the deadline should be paused — “equitable tolling” — because the surety never issued a final, clear denial and kept the claim open. The court took a careful two-step approach:

• The door is open in theory. The court treated the one-year limit as a non-jurisdictional deadline, meaning fairness-based exceptions can apply in principle.
• But this claimant didn’t qualify. Equitable tolling requires “extraordinary circumstances, such as fraud, misinformation, or deliberate concealment,” and the court found no evidence of any of them. A surety’s request for more documents is not that.
• No need to wait for a denial. The court said an unequivocal denial from the surety “is not required before bringing a Miller Act claim in federal court.” Waiting on the surety only showed a “lack of diligence.”

Result: summary judgment for Sauer and Federal Insurance on the Miller Act counterclaim. The court also rejected United Structures’ backup unjust enrichment claim, explaining that a subcontractor’s remedy against a Miller Act surety runs through the bond itself, and that under Louisiana law unjust enrichment is not available where a contract already governs the relationship.

Lesson 2: a performance bond usually needs a clear declaration of default first

Sauer also sued the two sureties that had bonded United Structures’ work, Western Surety and Great Midwest, under their subcontract performance bonds. A performance bond is a promise by the surety to step in if the bonded contractor (the “principal”) fails to perform. The bonds here said the surety’s duties kick in “whenever the Principal shall be, and is declared by the Obligee to be in default,” and let Sauer fix the default itself only “after having given notice to the Surety.”

The court read that standard language as making a declaration of default a condition that must be met before suing the surety. Applying Louisiana case law, it explained that a declaration must be made “in clear, direct, and unequivocal language.” Filing the lawsuit did not count.

The difference between the two sureties came down to paperwork that reached the right desk. Sending a default notice to a wrong email address is a small mistake that can become a very expensive one.

Miller Act payment bond timeline: the plain-English version

For readers who handle federal jobs, here is how the main deadlines work under 40 U.S.C. § 3133. Your clock starts on your own last day of labor or materials on the project, not the end of the whole job.

1. Day 0 — last labor or material. Keep proof of this date: delivery tickets, daily reports, timesheets. In Sauer, both sides agreed on it, which made the late filing easy to see.
2. Within 90 days — written notice (second-tier claimants). If you contracted with a subcontractor rather than the prime contractor, you must give the prime contractor written notice within 90 days, stating “with substantial accuracy” the amount claimed and who you worked for. Use a delivery method that gives third-party proof of delivery.
3. After 90 days unpaid — right to sue. A claimant not paid in full within 90 days after its last labor or material may bring a civil action on the payment bond.
4. Within 1 year — file suit. The lawsuit must be filed within one year of your last labor or material. Talking with the surety does not stop this clock.
5. Where to file. The statute says suit is brought in the name of the United States for the claimant’s use, in the federal district court where the contract was performed. In Sauer, the case sat in Florida because of forum-selection clauses in the subcontracts — the court noted this as an exception, so read your subcontract.

Two more points from the statute: you can ask the contracting agency for a certified copy of the payment bond by submitting an affidavit that you supplied labor or material and have not been paid (§ 3133(a)), and a waiver of your right to sue on the bond is void unless it is in writing, signed by you, and signed after you furnished the labor or material (§ 3133(c)). The statute requires these bonds on federal construction contracts “of more than $100,000” (40 U.S.C. § 3131(b)); the Federal Acquisition Regulation sets the working threshold contracting officers apply, so check the current figure there.

Desk checklist for subcontractors, suppliers and sureties

• Calendar the one-year date the day you finish. Put the suit deadline in writing as soon as your last delivery or labor is known.
• Keep claim talks and the lawsuit on separate tracks. Negotiate with the surety if you like, but file before the deadline if the money isn’t in hand. A request for more documents is not a promise to pay.
• If you are the obligee, declare default clearly. Say the principal is in default, name the bond, and send it to the surety’s correct claim address. Copying the wrong inbox nearly cost Sauer its claim against Great Midwest — and lack of notice did cost it the claim against Western Surety.
• Read the actual bond form. Federal payment bonds often use the Standard Form 25A; private jobs often use AIA A312; Canadian jobs often use CCDC 221/222. Each sets its own notice and suit conditions. See our SF 25A payment bond, AIA A312–2010 and CCDC 222 labour and material payment bond specimen pages.
• Sureties: document your claim responses. Federal Insurance’s letter flagged a “bona fide dispute” and asked for more information without promising payment — the court found no evidence of fraud, misinformation or concealment.

What happens next

The order resolved the Miller Act, unjust enrichment, fraud and attorney’s-fees counterclaims in Sauer’s and Federal Insurance’s favour, and the performance bond claim against Western Surety. The performance bond claim against Great Midwest and the contract dispute between Sauer and United Structures remain. Whether any party has appealed or settled is not publicly disclosed as of Oct 8, 2026.

Related reading on Global Guarantors

• Surety claims basics — how bond claims are made and investigated
• Contract surety: bid, performance and payment bonds
• E.D. Va.: insurance offsets discharged subcontract bonds — another 2026 federal-project bond ruling
• Insurance offsets and payment-bond penal sums

Sources

1. Sauer Construction, LLC v. United Structures of Georgia, LLC, et al. — order on summary judgment motions, U.S. District Court, M.D. Fla., Jacksonville Division, No. 3:24-cv-943-WWB-PDB, August 27, 2026 (public copy).
2. David Adelstein, “Miller Act Payment Bond Claim ‘No Nos!’”, Construction Defect Journal (from Florida Construction Legal Updates), October 6, 2026 (citing 2026 WL 2522849).
3. 40 U.S.C. § 3133 — Rights of persons furnishing labor or material, Legal Information Institute, Cornell Law School.
4. 40 U.S.C. § 3131 — Bonds of contractors of public buildings or works, Legal Information Institute, Cornell Law School.
5. Photo: U.S. Army Corps of Engineers manages building renovation projects at the Baumholder Military Community, U.S. Army photo by Christopher Gardner (public domain), via Wikimedia Commons.