Written and reviewed by Cory Cannon, Esq.
Published Updated
On a Florida public construction project, you cannot lien the property. Courthouses, schools, runways, and bridges belong to the public, and Florida law does not permit construction liens against public property. In place of the lien, section 255.05, Florida Statutes, requires the contractor to record a payment and performance bond before the work begins. If you furnished labor or materials on a bonded public job and have not been paid, that bond is your remedy, and it comes with notice deadlines measured in days, not months.
Cory Cannon handles two claimant paths under construction bonds. We pursue payment bond claims for subcontractors and suppliers who have not been paid on public projects. We also prosecute performance bond claims for owners and general contractors when a bonded contractor defaults and walks off, or is removed from, the job. The work is document-driven: notices, pay applications, dates of first and last furnishing, and the bond form itself. We read all of it before we evaluate the claim.
Public-Project Bond Claims at a Glance
- You cannot lien a public project. Courthouses, schools, and roads cannot be foreclosed, so section 255.05, Florida Statutes, requires the contractor to record a payment and performance bond before work begins. The bond is your remedy in place of the lien.
- Non-privity claimants carry two notice deadlines. If you do not have a direct contract with the general contractor, serve a written notice to the contractor no later than 45 days after you first furnish labor or materials, then a sworn notice of nonpayment no later than 90 days after your final furnishing (and no earlier than 45 days after first furnishing).
- Suit runs on a one-year clock. An action on the payment bond must be filed within one year of your final furnishing, not project completion or anyone else’s schedule.
- The notice of nonpayment is sworn. Willfully exaggerating the amount can forfeit your rights under the bond, so the figures must reconcile with your job records before you sign.
- Section 255.05 shifts attorney’s fees to the prevailing party in an action to enforce a payment bond claim.
Why You Cannot Lien a Public Project and What Replaces the Lien
Florida’s construction lien law, chapter 713, attaches a claim to the improved real estate. That mechanism fails on public work because public property cannot be foreclosed. Section 255.05 solves the problem by substitution: before starting a public construction contract, the contractor must execute and record a payment and performance bond issued by a surety authorized to do business in Florida. The bond, not the land, secures payment down the chain.
Two threshold rules matter. When the work is done for the State of Florida and the contract is $100,000 or less, no bond is required. For counties, cities, and other public entities, the awarding official has discretion to exempt contracts of $200,000 or less. If your job falls in an exemption, there may be no bond to claim against, and your remedies run through the contract itself; our construction payment dispute practice covers that path.
The bond is recorded in the public records of the county where the project sits, and the statute lets a claimant apply to the governmental entity in charge of the work for copies of the contract and the recorded bond. Getting the bond early is step one. It tells you who the surety is, what the bond covers, and which notice provisions apply. We do this at the start of every engagement.
Payment Bonds and Performance Bonds Are Different Instruments
The two bonds sit in one recorded package on a public job, but they protect different people against different failures. Some definitions first. The surety is the company that issues the bond. The principal is the contractor whose obligations are bonded. The obligee is the party the bond protects. The penal sum is the maximum the surety can be required to pay.
- A payment bond protects the people below the contractor: subcontractors, sub-subcontractors, suppliers, and laborers who furnish labor, services, or materials and do not get paid. On public work, the payment bond stands in for the lien you cannot record.
- A performance bond protects the party above the contractor, the obligee, against the contractor’s failure to complete the work. On public projects the obligee is the public entity. But general contractors also require performance bonds from major subcontractors, so a general contractor can be a performance bond claimant when a bonded sub defaults.
This page covers public-project bond claims under section 255.05 and performance bond claims generally. Payment bonds on private projects follow a separate statute, section 713.23, with its own notice regime; we cover those on our payment bond claim page.
The Section 255.05 Notice Chain: Three Deadlines That Decide the Claim
Section 255.05 conditions your right to sue on written notices served on time. The statute says it plainly: an action may not be instituted against the contractor or the surety unless the required notices have been served. Courts enforce this as written. A meritorious claim with a late notice is, in most cases, a dead claim.
Whether the notices apply to you turns on privity: whether you have a direct contract with the general contractor. A first-tier subcontractor in direct contract with the GC is in privity. A sub-subcontractor or a supplier to a subcontractor is not. The notice burdens fall on claimants who are not in privity with the contractor, with a statutory exception for laborers.
| Step | Who must act | Deadline | What it is |
|---|---|---|---|
| Notice to contractor | Claimants not in privity with the contractor (laborers excepted) | Before starting work, or no later than 45 days after first furnishing labor, services, or materials | Written notice to the contractor that you intend to look to the bond for protection |
| Notice of nonpayment | Unpaid claimants not in privity with the contractor | No earlier than 45 days after first furnishing and no later than 90 days after final furnishing | Sworn (under oath) written notice served on the contractor, with a copy served on the surety |
| Lawsuit | Any bond claimant | 1 year after your performance of the labor or completion of delivery of the materials | Action against the contractor and surety on the payment bond |
Three details in that table hurt people regularly. First, the notice of nonpayment has an opening date as well as a closing date: serve it earlier than 45 days after your first furnishing and it is defective. Second, the 90-day and 1-year clocks both run from your final furnishing, not from project completion or anyone else’s schedule. Third, the statute carves out actions exclusively for retainage, the money withheld from progress payments until completion, which follow their own accrual conditions and an extension mechanism. Retainage timing is technical enough that you should not estimate it; have counsel run the dates.
You can pressure-test your own dates in minutes with our construction lien deadline calculator. Treat the output as a screening tool, not legal advice: edge cases like retainage-only claims and disputed final-furnishing dates need a lawyer’s review before you rely on them.
“Final Furnishing” Is Where Bond Claims Die
Both the 90-day notice of nonpayment and the 1-year suit deadline hang on one factual question: when did you last furnish labor, services, or materials to the project? Florida courts read this narrowly. Punch-list touch-ups, warranty visits, and corrective work generally do not count as final furnishing and do not restart the clock. The date that matters is the last day of substantive work under your contract.
The practical rule we apply: calculate from the earliest defensible date, not the latest hopeful one. If your last substantive work was in March and you returned in May to fix a deficiency, run the deadlines from March. A claimant who counts from the May visit and misses the true window has no second chance. When the date is genuinely disputed, we reconstruct it from daily logs, delivery tickets, timesheets, and pay applications; the records tell the story. Run your dates through the deadline calculator, then confirm them with counsel before you let a week pass.
The Under-Oath Trap in the Notice of Nonpayment
The notice of nonpayment is not a demand letter. It is a sworn statement, and section 255.05 attaches real consequences to getting it wrong. A claimant who serves a fraudulent notice of nonpayment forfeits his or her rights under the bond. The statute defines a fraudulent notice to include one that willfully exaggerates the amount unpaid, willfully includes claims for work not performed or materials not furnished, or is prepared with willful and gross negligence amounting to willful exaggeration.
That last phrase deserves attention. Carelessness at a sufficient scale can be treated like intent. Before any notice of nonpayment goes out under our watch, we reconcile the claimed amount against the schedule of values, approved and pending change orders, pay applications, and payments received, line by line. Rounding up to create negotiating room is exactly the behavior the statute punishes, and the punishment is forfeiture of the bond claim itself.
Related paper deserves the same care. On bonded jobs you will be asked to sign partial releases and waivers with each payment, and their wording can reach further than the check you received. Our answer to “should I sign a lien waiver?” covers how to keep a release from swallowing your bond rights.
Attorney’s Fees: Section 255.05 Shifts Them
Section 255.05(2)(a)2 provides that in an action to enforce a claim against a payment bond, the prevailing party is entitled to recover a reasonable attorney’s fee for trial and appeal, or for arbitration. This changes the economics of public-project bond claims in two directions. A subcontractor with a documented, accurately stated claim can pursue it knowing fees are recoverable if it prevails. And a claimant with an inflated or sloppy claim faces the same statute pointed the other way. Fee exposure is one more reason the notice of nonpayment must be precise. For a fuller picture of how fee-shifting works across construction disputes, see who pays attorney’s fees in a construction lawsuit.
Performance Bond Claims After a Contractor Default
The performance bond side of the practice serves obligees: the public entity whose contractor stopped performing, or the general contractor whose bonded subcontractor defaulted mid-job. A performance bond claim is not a phone call to the surety asking for money. It is a sequence of conditions precedent, and sureties scrutinize each one.
Commonly used bond forms require the obligee to notify the surety that it is considering declaring a default, to actually declare the principal in default, and to terminate the contract in accordance with its terms before the surety’s obligations ripen. Terminate first and paper it later, and the surety will argue the termination was improper and the bond was discharged. The sequence matters as much as the substance.
Once a default is properly declared, the surety typically has options: take over and complete the work itself, arrange for a completion contractor, pay the obligee’s reasonable costs to complete up to the penal sum, or deny the claim. Sureties defend these claims vigorously. The recurring defenses are predictable: the termination was premature or procedurally defective; the obligee overpaid the contract balance, reducing the funds available to complete; the obligee made material changes to the work without the surety’s consent; or the claimed completion costs are inflated.
Our job is to close those doors before they open. We build the default record in real time: notice letters that track the bond’s language, documented cure periods, photographs and schedules fixing the state of the work at termination. Where the default involves defective or incomplete construction that must be quantified, we retain independent licensed engineers to establish scope, and we check completion pricing against real bids from licensed local contractors rather than estimates built for litigation.
Timing on performance bonds differs from the payment-bond side. The 1-year limit in section 255.05 governs actions on the payment provisions of the bond. Performance bond claims are generally treated as actions on a written contract, which carry a five-year limitations period under Florida law, and section 95.03, Florida Statutes, voids contract provisions that attempt to shorten a statutory limitations period. Many bond forms nonetheless contain their own suit-limitation clauses, and how a particular clause interacts with Florida law is a question to resolve at the beginning of a claim, not the end. Bring the bond form to counsel early.
Federal Projects: The Miller Act
Work on federally owned property (military installations, VA facilities, federal buildings) follows a federal analog rather than section 255.05. The Miller Act, 40 U.S.C. sections 3131 through 3134, requires payment bonds on federal construction contracts because, as with state projects, no lien can attach to federal property. The mechanics rhyme with Florida’s but are not identical: a first-tier subcontractor in direct contract with the prime contractor may sue on the bond without pre-suit notice, while a second-tier claimant must serve written notice on the prime within 90 days of its last furnishing. Suit must be brought in federal district court where the contract was performed, no earlier than 90 days and no later than one year after the claimant’s last furnishing. If your unpaid job is at MacDill or another federal site in the region, the Miller Act analysis comes first.
Private Projects Follow a Different Statute
On private jobs, an owner or contractor can record a payment bond under section 713.23 that exempts the property from most liens and channels claims to the bond instead, with its own notice-to-contractor and notice-of-nonpayment requirements and its own one-year suit limit. That regime lives on our private payment bond claim page. If the private project is unbonded, the lien route is open: the notice to owner, the claim of lien, and foreclosure, which we handle through our lien foreclosure practice. Our plain-English explainer on the Florida notice to owner walks through the private-side front door.
Why Bond Claims Matter in Tampa Bay Right Now
The region is carrying an unusually heavy public construction load. Structural steel is rising on Tampa International’s new Airside D, and the new Howard Frankland Bridge span is opening to traffic in 2026. Behind the marquee projects sit school boards, utilities, and municipalities letting bonded work every month. More bonded work means more bonded payment chains, and more claims when a link in the chain fails.
Contractor insolvency can make an ordinary contract claim difficult to collect. A payment or performance bond creates a separate obligation from the surety, subject to the bond terms and every required notice. Timely notice remains essential even when the underlying debt is clear. If a contractor on your job is showing distress through slow payment, thinning crews, or supplier complaints, run your dates through the deadline calculator while the available options remain open.
A Surety Bond Is Not Insurance
A surety expects to lose nothing on a bond. It underwrites the principal, takes indemnity agreements from the company and often its owners personally, and treats every claim as money it intends to recover from the principal. So the surety investigates bond claims the way a defendant investigates a lawsuit, requesting documents, taking positions, and testing your notice compliance. Treat your claim submission accordingly: complete, accurate, and consistent with the record from the first letter.
One point of routing, because the vocabulary overlaps: if your dispute is with your own property insurance carrier (damage to your building, an underpaid or denied claim), that is insurance, not suretyship, and it runs under a different body of law. Our property insurance claims practice handles those disputes.
How We Handle Bond Claims
I am a Florida attorney with a family history in construction going back generations. That background shows up in how I work: I speak pay application, schedule of values, and retainage without translation, and we check every claimed figure against the job records before it goes into a sworn notice or a complaint. Bond litigation is won on documents assembled correctly and deadlines hit exactly. That is the discipline we sell.
Fee structures follow the work. Notice-stage engagements (getting the bond, serving a compliant notice to contractor or notice of nonpayment) are typically flat-fee. Litigated claims are commonly hourly, with the prevailing-party fee provision in section 255.05(2)(a)2 providing a path to recover those fees on a successful payment bond claim. For some receivable-style claims, a contingency or hybrid arrangement fits better. I will tell you which model matches your claim at the first meeting, in writing.
Bond claims are one piece of a broader construction litigation practice that covers payment disputes, liens, delay claims, and contract fights on both public and private work.
Talk to Us Before a Deadline Decides the Case
Contact us for a free consultation. Bring the contract, your pay applications, any notices already served, and, most important, the dates you first and last furnished labor or materials. The deadlines in section 255.05 do not pause while a claim gets organized. I will tell you where your dates stand, what notice the statute still allows, and what the claim looks like from there.