The Massachusetts Payment Bond Statute, Mass. Gen. Laws c. 149, § 29 (“Section 29”), provides subcontractors and material suppliers on public construction projects with the added security of filing claims against the general contractor’s surety when seeking damages. However, subcontractors and material suppliers must follow the strict requirements of Section 29 in order to recover on a payment bond. One requirement is that sub-subcontractors (i.e. a subcontractor’s subcontractor) must provide timely, written notice of their claim to the general contractor providing the bond.
Subcontractors who have direct contractual relationships with general contractors do not need to submit written notice of claims prior to filing suit. Direct subcontractors are covered under Section 29 for work performed, or materials supplied, once payment is 65 days overdue. Subcontractors and material suppliers that do not have direct contracts with general contractors must provide written notice to the general contractors within 65 days after last providing labor or material on projects.
Sounds simple enough, so what’s the catch?
The statute specifically requires written notice to be sent to the general contractor’s office and served through registered or certified mail or by a sheriff or constable. The written notice must also include the amount of the claim and the name of the subcontractor for whom the sub-subcontractor or material supplier performed work. Failure to provide such notice within 65 days bars that sub-subcontractor or material supplier from recovering damages on the payment bond.
Additionally, Massachusetts Courts will not recognize written notices sent before work is complete. In order for notice to be “timely” under Section 29, it must be given after the last date of work or delivery. Written notice sent before the last date on which labor or material are supplied are considered premature. Such notice will not meet the requirements of Section 29 and is fatal to any subsequent bond claim.
Section 29 is a very useful device for recovering overdue payment on public construction projects. However, sub-subcontractors and material suppliers must be careful to ensure that they closely follow all of the notice requirements of the statute. Seek the advice of a Massachusetts construction attorney for more detail.
