Author, Anne Wright, Surety Relationship Executive, Rancho Mesa Insurance Services, Inc.
Contractors may do their work and meet their contractual obligations, but on some jobs it’s harder to get paid than on others. As in any business, your collection activities are key to getting your money. Don’t be afraid to be a squeaky wheel. There are a couple of things I’d like to share as either a reminder, or perhaps an education, that all contractors should know and consider.
Know where your money is coming from. If you are working on a public works job, it is of course coming from the public agency/owner of the job. If you are working on a private job, there are more questions to be asked.
If you are working as a general/prime contractor or a sub-contractor on a private works project, always confirm the financing – always. Make sure you document your job file with information as to where the money is coming from, and specifically cover your scope/line items of work. There may be a construction loan. If so, you will typically obtain that information for your preliminary notice purposes. If not, don’t hesitate to ask for some verification as to where the funds are held. Your surety will commonly pursue the source of the financing, if you are asked to bond the job.
What do you do if you are struggling to collect what you are owed? First and foremost, be aware of what your basic payment protections might be.
Your most likely assurance of payment for undisputed work would be the payment bond. Payment bonds are a primary protection to sub-contractors and suppliers if they are working for a prime contractor who has had to provide their bonds to the owner. There is an investigative process in the event of a claim against the bond, but the surety is there to make sure all valid claims are paid.
Sub-contractors, if you are working for a general contractor, you will want to make sure you get a copy of any payment bond that might be held by the owner for the general contractor’s work.
Suppliers, you may have payment bond protection as well, depending on who you are working for on the job and the type of job (i.e., federal, public or private).
Public works project bonds are required on most public works jobs of $35,000 or more (but can vary by agency) and Federal jobs of $150,000 or more.
Private works project bonds are rarely required of the general contractor, but it is important to ask if they are to document your job file. Otherwise, your best options are the stop notice to the lender and/or mechanic’s lien.
Best practice here is to always ask for a copy of the payment bond from your general contractor. Confirm one has been provided to the owner if you are a sub-contractor or supplier. If you are a lower tier sub-contractor, find out if the sub-contractor you are contracted with had to provide a bond and obtain that for your job file! If you are a supplier, ask about those payment bonds that might protect you as well.
What if a payment bond isn’t in place to cover you? There are various remedies short of litigation that may be available to you. These include mechanic’s lien filings, and/or stop notice to the lender/owner of a project.
Mechanics lien can be used if the job is on private property (needs to be recorded with the county recorder). At the very least, this puts you in a generally secured position on the title of the property when it is sold. It’s not a quick remedy, or even guaranteed payment, depending on other liens already filed ahead of you.
Stop notice may be useful if the project is for private works (filed against the construction lender). This notifies the lender that you are owed money. You will have to file a bond to accompany your stop notice, but when properly filed, it requires that the lender withhold monies until your matter is resolved. Again, there is a process involved here and it’s often not a quick remedy, but it should be considered.
If you are working on a private job and there is no payment bond filed on the project, the stop notice and/or mechanics lien are key.
It's important that you know your lien rights and filing times whether you are working on a public or a private project (the various protections have certain timetables, e.g. after notice of completion, etc. that have to be considered for you to have rights to these various remedies). If you are a member of a trade association, you no doubt have a member who is an attorney. They can provide the current timelines for the various lien rights. We can also offer referrals to construction attorneys who can provide you with the timetables for the purposes of these various filings or related support.
Pursuing these remedies are best practices. It doesn’t hurt to file the preliminary notice on any job when you begin your work. Everyone is entitled to managing their relationships the way they see best for their business, but hopefully some of this information will be helpful.
If you have questions about payment bonds, contact me at (619) 486-6570 or awright@ranchomesa.com.