CONSTRUCTION BOND CLAIMS / §17.3
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III.
(§17.3)
For a claim arising out of construction of a large commercial structure, the claimant must first obtain a judgment in a court of competent jurisdiction. Within 90 days of filing a complaint, the claimant must send a copy of the complaint to the CCB and the surety by certified mail, return receipt requested. Although neither the CCB nor the surety is listed as a party to the lawsuit, notice is necessary to give the surety the opportunity to intervene and defend. Within 30 days after entry of a judgment, a certified copy of the judgment must be delivered to the CCB and the surety. Thereafter, the CCB may issue a proposed order and, if not properly and validly objected to, a final order will be issued. Public Projects
A.
Generally. Bonding statutes were adopted for public works projects in lieu of suppliers’ and subcontractors’ construction lien rights on private projects. See e.g., Multnomah Co. v. United States F. Etc. Co., 87 Or 198, 203, 170 P 525 (1918). Note, however, that not every public works project is required to have a payment or performance bond. Public bodies may except certain categories of projects from the bonding requirements or declare a project-specific emergency, which obviates the bonding requirements. Thus, although there are no preclaim requirements for public works bond claims under either Oregon’s Little Miller Act or the federal Miller Act, potential claimants may wish to confirm the existence of a bond through either an Oregon Public Records Request or a federal Freedom of Information Act request before agreeing to work on a public works project.
B.
Oregon’s Little Miller Act. To perfect an Oregon Little Miller Act claim, notice must be given by all protected parties, except claims for contributions to an employee benefit plan, within 120 days after their last substantial day on project. ORS 279.528. In City of The Dalles v. D’Electric Co., 105 Or App 46, 803 P2d 771 (1990), the court held that replacement or corrective materials can be used to calculate the notice timing requirements under the Little Miller Act. This is different from the timing under Oregon’s construction lien statutes, which generally do not permit repair work to qualify as the valid last day. A general form of notice is provided in the statutes. ORS 279.528(3). ORS 279.526 governs who must receive a notice of claim under the Oregon Little Miller Act. (See also OAR 137-040-0045, which addresses Little Miller Act notices to the state.) •
An action on an Oregon Little Miller Act bond must be instituted no later than two years after the person last provided labor or materials – not two years from when the notice was given. ORS 279.536(3). 37