State v. Smith & Smith Excavation, Inc., et al.

Under ORS 279A.030, federal funding, standing alone, does not make a project a “public building or public work of the Federal Government” within the meaning of the federal Miller Act, 40 USC § 3131(b).

Plaintiff (a subcontractor) gave notice to defendant, a contractor, of its claim on the defendant’s payment bond within 180 days of plaintiff’s completion of its contract with defendants. However, plaintiff did not give notice within 180 days of its completion of the portion of the contract upon which it based its claim. The trial court then entered a limited judgment in favor of plaintiff and against all defendants, as well as a supplemental judgment awarding plaintiff attorney fees and costs. Defendants have appealed both judgments. Plaintiff has cross-appealed the limited judgment in its favor. On appeal, defendants argued plaintiff failed to give timely and proper notice of its bond claim and that, as a result, the claim fails as a matter of law and defendants were entitled to a directed verdict on it. Plaintiff argued that under the Little Miller Act (ORS 279A.030), it gave defendants timely and proper notice, because it gave defendants notice “no later than 180 days after the day the person last provided labor or furnished materials.” ORS 279C.605 (emphasis added). The Court of Appeals held that the plain text of the Little Miller Act does not require notice until 180 days after the plaintiff’s “last provided labor or furnished materials” under the contract. Under ORS 279A.030, federal funding, standing alone, does not make a project a “public building or public work of the Federal Government” within the meaning of the federal Miller Act, 40 USC § 3131(b). Therefore, the Little Miller Act was controlling. Limited judgment affirmed; appeal of supplemental judgment for attorney fees dismissed and remanded with instructions to vacate that supplemental judgment. On cross-appeal, affirmed.