
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 40USC270a]

 
             TITLE 40--PUBLIC BUILDINGS, PROPERTY, AND WORKS
 
             CHAPTER 3--PUBLIC BUILDINGS AND WORKS GENERALLY
 
Sec. 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, Sec. 1, 49 Stat. 793; Pub. L. 89-719, title I, 
Sec. 105(b), Nov. 2, 1966, 80 Stat. 1139; Pub. L. 95-585, Nov. 2, 1978, 
92 Stat. 2484; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095; 
Pub. L. 103-355, title IV, Sec. 4104(b)(1)(B), Oct. 13, 1994, 108 Stat. 
3342; Pub. L. 106-49, Sec. 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 $1,000,000 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 $1,000,000 and not more than $5,000,000, 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 $5,000,000 the said 
payment bond shall be in the sum of $2,500,000.''
    1994--Subsec. (a). Pub. L. 103-355 struck out ``, exceeding $25,000 
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 ``$25,000'' for 
``$2,000''.
    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 Sec. 5, of act Aug. 24, 1935, as renumbered by 
Pub. L. 104-106, div. D, title XLIII, Sec. 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, Sec. 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, Sec. 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, Sec. 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 $25,000 but not greater than 
$100,000.''


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

    Act July 11, 1941, ch. 290, Sec. 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, Sec. 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.
