B-172990, JUN 10, 1971

B-172990: Jun 10, 1971

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CONTRACTS - MILLER ACT ADVISING THAT THE GOVERNMENT'S RESPONSIBILITY TO SUBCONTRACTORS UNDER GOVERNMENT CONSTRUCTION CONTRACTS IS LIMITED TO FURNISHING COPIES OF THE MILLER ACT CONTRACTS AND PAYMENT BONDS WHEN ENTITLEMENT HAS BEEN ESTABLISHED IN ACCORDANCE WITH THE ACT. THE ONLY PROTECTION LEADER ELECTRIC SUPPLY HAS WITH REGARD TO ITS CLAIM FOR MATERIALS SUPPLIED A PRIME CONTRACTOR IS THE PAYMENT BOND. WEINER: REFERENCE IS MADE TO YOUR LETTER OF APRIL 16. OUR RESPONSIBILITY TO SUBCONTRACTORS UNDER GOVERNMENT CONSTRUCTION CONTRACTS IS LIMITED TO FURNISHING COPIES OF MILLER ACT CONTRACTS AND PAYMENT BONDS WHEN ENTITLEMENT HAS BEEN ESTABLISHED BY AFFIDAVIT IN THE MANNER PRESCRIBED BY SECTION 3 OF THE MILLER ACT.

B-172990, JUN 10, 1971

CONTRACTS - MILLER ACT ADVISING THAT THE GOVERNMENT'S RESPONSIBILITY TO SUBCONTRACTORS UNDER GOVERNMENT CONSTRUCTION CONTRACTS IS LIMITED TO FURNISHING COPIES OF THE MILLER ACT CONTRACTS AND PAYMENT BONDS WHEN ENTITLEMENT HAS BEEN ESTABLISHED IN ACCORDANCE WITH THE ACT. THE ONLY PROTECTION LEADER ELECTRIC SUPPLY HAS WITH REGARD TO ITS CLAIM FOR MATERIALS SUPPLIED A PRIME CONTRACTOR IS THE PAYMENT BOND.

TO MR. DAVID C. WEINER:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 16, 1971, REQUESTING PAYMENT IN THE AMOUNT OF $790.82 TO YOUR CLIENT, THE LEADER ELECTRIC SUPPLY COMPANY, FOR MATERIALS SUPPLIED THROUGH THE ELECTROLITE COMPANY, INC., TO THE SANDFORD CONSTRUCTION COMPANY, A PRIME CONTRACTOR TO THE RAVENNA ARSENAL UNDER CONTRACT NO. DACA27-70-C-0033.

OUR RESPONSIBILITY TO SUBCONTRACTORS UNDER GOVERNMENT CONSTRUCTION CONTRACTS IS LIMITED TO FURNISHING COPIES OF MILLER ACT CONTRACTS AND PAYMENT BONDS WHEN ENTITLEMENT HAS BEEN ESTABLISHED BY AFFIDAVIT IN THE MANNER PRESCRIBED BY SECTION 3 OF THE MILLER ACT, 40 U.S.C. 270C.

THE MILLER ACT PAYMENT BOND IS THE ONLY PROTECTION PROVIDED BY THE GOVERNMENT FOR SUBCONTRACTORS. IN THE EVENT ANY SUBCONTRACTOR FURNISHING LABOR AND MATERIAL USED IN THE PROSECUTION OF THE PRIME CONTRACT CONTINUES TO BE AGGRIEVED AFTER ATTEMPTING TO WORK OUT AN ADJUSTMENT OF HIS UNPAID ACCOUNT WITH THE CONTRACTOR AND ITS SURETY, HE IS GIVEN THE RIGHT UNDER SECTION 2 OF THE MILLER ACT, 40 U.S.C. 270B, TO SUE FOR COLLECTION UNDER THE PAYMENT BOND IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT IN WHICH THE CONTRACT WAS PERFORMED AND EXECUTED 90 DAYS AFTER, BUT NO LATER THAN 1 YEAR AFTER, FURNISHING THE LAST LABOR AND SUPPLIES.

OTHER THAN THE REMEDY PROVIDED BY THE MILLER ACT, THE SETTLEMENT OF OBLIGATIONS BETWEEN CONTRACTORS AND THOSE FURNISHING LABOR AND MATERIALS IS A MATTER OUTSIDE THE JURISDICTION OF OUR OFFICE, THERE BEING NO PRIVITY OF CONTRACT BETWEEN THE SUBCONTRACTOR AND THE UNITED STATES. SEE KELLOGG V UNITED STATES, 7 WALL. 361 (1868); WARRIOR CONSTRUCTORS, INC. V HARDERS, INC., 387 F. 2D 727 (1967); UNITED STATES V CLEVELAND ELECTRIC COMPANY OF SOUTH CAROLINA, 373 F. 2D 585 (1967).