Material Suppliers and the PWA
A material supplier seeking to preserve the right to file a privilege or lien related to a public works contract must comply with the requirements of the Louisiana Public Works Act (LPWA) La. R.S. 38:2242. In a recent First Circuit case, a roofing material supplier delivered materials in June, July, August and September on an open account arrangement between supplier and subcontractor on a public works project. J. Reed Constructors, Inc. v. Roofing Supply Grp., L.L.C., 12-2136 (La. App. 1 Cir. 11/1/13), — So. 3d —. It was undisputed that the supplier provided notice of nonpayment to the owner and general contractor within seventy-five days of the final delivery. The supplier did not receive payment and filed and recorded its materialman’s claim for all deliveries. The general contractor filed a rule to show cause why the lien related to the June, July and August deliveries should not be canceled alleging that notice was untimely.
Strict Construction of Written Notice Requirement
Noting that public contracts are to be strictly construed such that privileges are not extended beyond those granted in the statutes, the court reviewed the statute’s notice and recordation requirements:
F. In addition to the other provisions of this Section, if the materialman has not been paid by the subcontractor and has not sent notice of nonpayment to the general contractor and the owner, then the materialman shall lose his right to file a privilege or lien on the immovable property. The return receipt indicating that certified mail was properly addressed to the last known address of the general contractor and the owner and deposited in the U.S. mail on or before seventy-five days from the last day of the month in which the material was delivered, regardless of whether the certified mail was actually delivered, refused, or unclaimed satisfies the notice provision hereof or no later than the statutory lien period, whichever comes first. The provisions of this Subsection shall apply only to disputes arising out of recorded contracts.
LA. RS 38:2242(F). According to the court’s interpretation of the above provision, the material supplier was required to provide written notice within seventy-five days of the last day of the month in which each material delivery was made. Thus, the roofing supplier’s notice as to the June, July and August deliveries were untimely and the lien, as to those deliveries, was not preserved.
Federal “Miller” Act
The dissenting judge reviewed cases interpreting similar notice provisions in the Federal “Miller Act” which requires notice 90 days from the date the claimant performed the last labor, or furnished or supplied the last of the material. He noted that there is a split in federal decisions as to whether notice is due within 90 days of the last delivery or 90 days of each delivery.
While it will be interesting to see how other courts interpret this provision, a material supplier seeking to preserve a lien should comply with the strictest interpretation of the LPWA.
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.