2001 US Code
Title 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS
CHAPTER 3 - PUBLIC BUILDINGS AND WORKS GENERALLY
Sec. 270a - Bonds of contractors of public buildings or works

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§270a. Bonds of contractors of public buildings or works (a) Type of bonds required

Before any contract for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person, who is hereinafter designated as “contractor”:

(1) A performance bond with a surety or sureties satisfactory to the officer awarding such contract, and in such amount as he shall deem adequate, for the protection of the United States.

(2) A payment bond with a surety or sureties satisfactory to such officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person. The amount of the payment bond shall be equal to the total amount payable by the terms of the contract unless the contracting officer awarding the contract makes a written determination supported by specific findings that a payment bond in that amount is impractical, in which case the amount of the payment bond shall be set by the contracting officer. In no case shall the amount of the payment bond be less than the amount of the performance bond.

(b) Waiver of bonds for contracts performed in foreign countries

The contracting officer in respect of any contract is authorized to waive the requirement of a performance bond and payment bond for so much of the work under such contract as is to be performed in a foreign country if he finds that it is impracticable for the contractor to furnish such bonds.

(c) Authority to require additional bonds

Nothing in this section shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to those, or in cases other than the cases specified in subsection (a) of this section.

(d) Coverage for taxes in performance bond

Every performance bond required under this section shall specifically provide coverage for taxes imposed by the United States which are collected, deducted, or withheld from wages paid by the contractor in carrying out the contract with respect to which such bond is furnished. However, the United States shall give the surety or sureties on such bond written notice, with respect to any such unpaid taxes attributable to any period, within ninety days after the date when such contractor files a return for such period, except that no such notice shall be given more than one hundred and eighty days from the date when a return for the period was required to be filed under title 26. No suit on such bond for such taxes shall be commenced by the United States unless notice is given as provided in the preceding sentence, and no such suit shall be commenced after the expiration of one year after the day on which such notice is given.

(Aug. 24, 1935, ch. 642, §1, 49 Stat. 793; Pub. L. 89–719, title I, §105(b), Nov. 2, 1966, 80 Stat. 1139; Pub. L. 95–585, Nov. 2, 1978, 92 Stat. 2484; Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 103–355, title IV, §4104(b)(1)(B), Oct. 13, 1994, 108 Stat. 3342; Pub. L. 106–49, §2(a), Aug. 17, 1999, 113 Stat. 231.)

Amendments

1999—Subsec. (a)(2). Pub. L. 106–49 substituted “The amount of the payment bond shall be equal to the total amount payable by the terms of the contract unless the contracting officer awarding the contract makes a written determination supported by specific findings that a payment bond in that amount is impractical, in which case the amount of the payment bond shall be set by the contracting officer. In no case shall the amount of the payment bond be less than the amount of the performance bond.” for “Whenever the total amount payable by the terms of the contract shall be not more than ,000,000 the said payment bond shall be in a sum of one-half the total amount payable by the terms of the contract. Whenever the total amount payable by the terms of the contract shall be more than ,000,000 and not more than ,000,000, the said payment bond shall be in a sum of 40 per centum of the total amount payable by the terms of the contract. Whenever the total amount payable by the terms of the contract shall be more than ,000,000 the said payment bond shall be in the sum of ,500,000.”

1994—Subsec. (a). Pub. L. 103–355 struck out “, exceeding ,000 in amount,” after “Before any contract” in introductory provisions.

1986—Subsec. (d). Pub. L. 99–514 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”, which for purposes of codification was translated as “title 26” thus requiring no change in text.

1978—Subsec. (a). Pub. L. 95–585 substituted “,000” for “,000”.

1966—Subsec. (d). Pub. L. 89–719 added subsec. (d).

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 251 of Title 41, Public Contracts.

Effective Date of 1966 Amendment

Amendment by Pub. L. 89–719 applicable to contract entered into pursuant to invitations for bids issued after June 30, 1967, see section 114(c)(2) of Pub. L. 89–719, set out as a note under section 6323 of Title 26, Internal Revenue Code.

Effective Date

Section 7, formerly §5, of act Aug. 24, 1935, as renumbered by Pub. L. 104–106, div. D, title XLIII, §4321(i)(8), Feb. 10, 1996, 110 Stat. 676, provided in part: “That this act [enacting this section and sections 270b to 270d of this title] shall take effect upon the expiration of sixty days after the date of its enactment [Aug. 24, 1935], but shall not apply to any contract awarded pursuant to any invitation for bids issued on or before the date it takes effect, or to any persons or bonds in respect of any such contract.”

Short Title of 1999 Amendment

Pub. L. 106–49, §1, Aug. 17, 1999, 113 Stat. 231, provided that: “This Act [amending this section and section 270b of this title and enacting provisions set out as a note under this section] may be cited as the ‘Construction Industry Payment Protection Act of 1999’.”

Short Title

Section 6 of act Aug. 24, 1935, as added by Pub. L. 103–355, title X, §10005(f)(1), Oct. 13, 1994, 108 Stat. 3408, provided that: “This Act [enacting this section, sections 270b to 270d–1 of this title, and provisions set out as a note above] may be cited as the ‘Miller Act’.”

Implementation Through Government-Wide Procurement Regulations

Pub. L. 106–49, §3, Aug. 17, 1999, 113 Stat. 231, provided that:

“(a) Proposed Regulations.—Proposed revisions to the Government-wide Federal Acquisition Regulation to implement the amendments made by this Act [amending this section and section 270b of this title] shall be published not later than 120 days after the date of the enactment of this Act [Aug. 17, 1999] and provide not less than 60 days for public comment.

“(b) Final Regulations.—Final regulations shall be published not less than 180 days after the date of the enactment of this Act and shall be effective on the date that is 30 days after the date of publication.”

Alternatives to Payment Bonds Provided by Federal Acquisition Regulation

Section 4104(b)(2) of Pub. L. 103–355 provided that:

“(2)(A) The Federal Acquisition Regulation shall provide alternatives to payment bonds as payment protections for suppliers of labor and materials under contracts referred to in subparagraph (C).

“(B) The contracting officer for a contract shall—

“(i) select, from among the payment protections provided for in the Federal Acquisition Regulation pursuant to subparagraph (A), one or more payment protections which the offeror awarded the contract is to submit to the Federal Government for the protection of suppliers of labor and materials for such contract; and

“(ii) specify in the solicitation of offers for such contract the payment protection or protections so selected.

“(C) The regulations required under subparagraph (A) and the requirements of subparagraph (B) apply with respect to contracts referred to in subsection (a) of the first section of the Miller Act [40 U.S.C. 270a(a)] that are greater than ,000 but not greater than 0,000.”

Waiver of Sections 270a to 270d of This Title by Secretary of the Treasury

Act July 11, 1941, ch. 290, §3(b), 55 Stat. 585, which authorized the Secretary of the Treasury, in his discretion, to waive sections 270a to 270d of this title with respect to certain contracts entered into for the Coast Guard during the national emergency, was repealed by Joint Res. July 25, 1947, ch. 327, §1, 61 Stat. 449.

Section Referred to in Other Sections

This section is referred to in sections 270b, 270d, 270d–1, 270e, 270f of this title; title 10 section 2701; title 15 sections 636, 637; title 25 sections 47a, 1656; title 31 section 9303; title 39 section 410; title 42 sections 1594, 9619, 11707.