WHAT IS THE RELATIONSHIP BETWEEN PAYMENTS BY THE CORPS TO THE PRIME CONTRACTOR AND PAYMENTS TO SUBCONTRACTORS BY THE PRIME CONTRACTOR?
The payment of subcontractors is a matter between the prime contractor and its subcontractors. The primary source of information for each subcontractor of what its rights to be paid are is their subcontract agreement. Payments by the Corps to its prime contractors have no relationship under the Miller Act as to when payments to subcontractors are made by the prime contractor. The Miller Act envisions an obligation of the prime contractor to pay its subcontractors without regard as to when the prime contractor is paid by the Corps. The Miller Act in 40 U.S.C. ยง3133(c) does allow a waiver by the subcontractor of its right to sue under the Miller Act if the waiver is: (1) in writing; (2) signed by the person whose right is waived; and (3) executed after the person whose right is waived has furnished labor or material for use in the performance of the contract.
