The Second Month Notice of Claim (when Hired by a Subcontractor/Material Supplier): If you were hired by a Subcontractor or a Material Supplier, then your first step to making a Payment Bond Claim is to serve the General Contractor with the Second Month Notice of Claim. The Second Month Notice of Claim is intended to simply place the General Contractor on notice that a Subcontractor/Material Supplier has failed to timely pay one of its Subcontractors, Material Suppliers, or Laborers. The Second Month Notice must include the following information: (1) the identity of the Company who hired you; (2) the nature and description of the unpaid labor, materials or equipment that you provided to the Project; (3) the months that you provided the labor, materials or equipment to the Project; and (4) the amount unpaid. The Second Month Notice of Claim does not need to be notarized. The primary purpose of the Notice is to place the General Contractor on notice of the debt and to afford the General Contractor an opportunity to force the nonpaying Subcontractor/Material Supplier to pay without involving the Surety.
Inside Tip
Although you are only required to serve the General Contractor with this Notice, you should consider serving it on the Governmental Entity and the Contractor who hired you. Include in the Notice a strong Payment Demand to the Subcontractor who hired you, along with notice that the Trust Fund Statute and the Prompt Payment Act have been violated, if applicable. Your goal should be to force the debtor to pay without having to take the next step of serving the Third Month Notice of Claim on the Surety. The Lien Professor’s Payment Bond Claim Kit contains a Second Month Notice of Claim specifically drafted with this strategy in mind.
Practice Pointer
You can combine the Second Month Notice of Claim with the Third Month Notice of Claim if: (1) the Notice is sent by the 15th day of the second month; (2) you include all of the required Third Month Notice information in the Notice; and (3) you send the Notice to both the Surety and the General Contractor.
The Third Month Notice of Claim (When You Performed Under a Verbal Contract): If you provided labor and/or materials to the Project pursuant to a verbal contract, then you are required to include all of the following information in the Third Month Notice of Claim: (1) the name of the party for whom the work was performed or to whom the material was delivered; (2) the date of performance; (3) a description of the labor or materials; (4) the amount due; (5) a general itemization of the Claim; (6) a Sworn Statement of Account; and (7) copies of all Documents, invoices, or purchase orders that reasonably identify: the labor performed or the materials delivered; the job location; and the destination of delivery for any materials. See below for requirements if you performed under a written contract.
The Third Month Notice of Claim (When You Performed Under a Written Contract): If you provided labor and/or materials to the Project pursuant to a fully executed written contract, then your Notice requirements are less stringent than they are if you had performed under a verbal contact. When you perform under a written contract, the Third Month Notice of Claim must only include the following: (1) a notarized Sworn Statement of Account, indicating the amount owed; a statement that all credits and offsets have been applied; and identification of any withheld retainage; and (2) a copy of the executed contract.
Inside Tip
Even if you performed pursuant to a written contract, your Notice will appear more complete if you comply with the additional requirements set forth above for those who performed pursuant to a verbal contract.
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