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Funded By DOT, But Not A 'Public Work'

Monday, May 01, 2017 06:55 am


Miller Act

U.S. f/u/b/o J.A. Manning Construction Co., Inc. v. Bronze Oak, LLC, 2017 U.S. Dist. Lexis 6054 (N.D. Okla. Jan. 17, 2017)

A tribal construction project relied on federal funds and listed the United States as a payment bond obligee. Nevertheless, Miller Act recovery was unavailable to an unpaid sub.

Bronze Oak, LLC (Bronze Oak) was general contractor on a bridge construction project in Mayes County, Oklahoma. Subcontractor J.A. Manning Construction Company, Inc. (JAMCC) provided the necessary labor and materials. According to the sub, Bronze Oak failed to pay $184,344 it owed to JAMCC for work performed under the subcontract. JAMCC sued Bronze Oak and sought recovery under a Miller Act payment bond issued on the project.

The key question considered here was whether JAMCC could bring suit under the Miller Act---or, more to the point, whether the project was a "public work of the Federal Government." 40 U.S.C. § 3131.

There is no clear test to make such a determination, but courts generally examine whether the bond was issued under the Miller Act and whether the federal government: (1) is a contracting party, (2) is an obligee on the bond, (3) is an initiator or ultimate operator of the project, and/or (4) owns the property on which the work is performed.

Here, the bond was issued under the Miller Act and listed the federal government as obligee (Bronze Oak was the principal).

On the other hand, the United States was not a contracting party or the project's initiator/operator, and the work wasn't done on federal land. It was the Cherokee Nation (Nation) that initiated the project, and funding came from the U.S. Department of Transportation (DOT), pursuant to 23 U.S.C. § 202(a), a tribal transportation program.

Bronze Oak relied on several cases to argue against JAMCC's Miller Act suit.

First, it cited U.S. ex rel. Miles Lumber Co. v. Harrison & Grimshaw Construction Co., 305 F.2d 363 ([...]

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