Reprinted with permission from Under Construction, Spring 2018 (19:3), at 1-3. ©2018 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
A fundamental piece of public construction projects is the requirement of contractors to provide payment and performance bonds to government contracting entities. This requirement has its roots in the Miller Act, a Federal statute enacted in 1935 to protect subcontractors from general contractor non-payment and default during the Great Depression. The function of the Miller Act was to act as de facto common law mechanic’s lien on government projects, which would be immune from lien protections through the doctrine of sovereign immunity.1 This concept of requiring payment and performance bonds spread across the country with numerous states enacting their own “Little Miller Acts” which individually tailored legislation to address each state’s specific concerns related to bond requirements. The Commonwealth of Massachusetts enacted such a public bidding requirement through its own “Little Miller Act” in M. G. L. c. 149, §29 (Massachusetts Bond Statute).