40 U.S.C. § 3133 — Rights of persons furnishing labor or ma-

Page 118 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 3132 (d) WAIVER OF BONDS FOR CONTRACTS PER- FORMED IN FOREIGN COUNTRIES.—A contracting officer may waive the requirement of a perform- ance bond and payment bond for work under a contract that is to be performed in a foreign country if the officer finds that it is impracti- cable for the contractor to furnish the bonds. (e) AUTHORITY TO REQUIRE ADDITIONAL BONDS.—This section does not limit the author- ity of a contracting officer to require a perform- ance bond or other security in addition to those, or in cases other than the cases, specified in sub- section (b). (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1147; Pub. L. 109–284, § 6(8), Sept. 27, 2006, 120 Stat. 1213.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3131(a) ........ 40:270a(a) (words be- fore cl. (1) related to definition). Aug. 24, 1935, ch. 642, § 1(a)–(c), 49 Stat. 793; Pub. L. 95–585, Nov. 2, 1978, 92 Stat. 2484; Pub. L. 103–355, title IV, § 4104(b)(1)(B), Oct. 13, 1994, 108 Stat. 3342; Pub. L. 106–49, § 2(a), Aug. 17, 1999, 113 Stat. 231. 40:270d. Aug. 24, 1935, ch. 642, § 4, 49 Stat. 794. 3131(b) ........ 40:270a(a) (words be- fore cl. (1) related to furnishing bond), (1), (2). 40:270d–1. Aug. 24, 1935, ch. 642, § 5, as added Pub. L. 103–355, title IV, § 4104(b)(1)(A), Oct. 13, 1994, 108 Stat. 3341. 3131(c) ........ 40:270a(d). Aug. 24, 1935, ch. 642, § 1(d), as added Pub. L. 89–719, title I, § 105(b), Nov. 2, 1966, 80 Stat. 1139. 3131(d) ........ 40:270a(b). 3131(e) ........ 40:270a(c). In subsection (a), the text of 40:270d is omitted be- cause of 1:1. In subsections (b) and (c), the words ‘‘or sureties’’ are omitted because of 1:1. REFERENCES IN TEXT The Internal Revenue Code of 1986, referred to in sub- sec. (c)(2), is classified to Title 26, Internal Revenue Code. Editorial Notes AMENDMENTS 2006—Subsec. (e). Pub. L. 109–284 substituted ‘‘To’’ for ‘‘to’’ in heading. § 3132. Alternatives to payment bonds provided by Federal Acquisition Regulation (a) IN GENERAL.—The Federal Acquisition Reg- ulation shall provide alternatives to payment bonds as payment protections for suppliers of labor and materials under contracts referred to in section 3131(a) of this title that are more than $25,000 and not more than $100,000. (b) RESPONSIBILITIES OF CONTRACTING OFFI- CER.—The contracting officer for a contract shall— (1) select, from among the payment protec- tions provided for in the Federal Acquisition Regulation pursuant to subsection (a), one or more payment protections which the offeror awarded the contract is to submit to the Fed- eral Government for the protection of sup- pliers of labor and materials for the contract; and (2) specify in the solicitation of offers for the contract the payment protections selected. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1148.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3132 ............ 40:270a note. Pub. L. 103–355, title IV, § 4104(b)(2), Oct. 13, 1994, 108 Stat. 3342. § 3133. Rights of persons furnishing labor or ma- terial (a) RIGHT OF PERSON FURNISHING LABOR OR MA- TERIAL TO COPY OF BOND.—The department sec- retary or agency head of the contracting agency shall furnish a certified copy of a payment bond and the contract for which it was given to any person applying for a copy who submits an affi- davit that the person has supplied labor or ma- terial for work described in the contract and payment for the work has not been made or that the person is being sued on the bond. The copy is prima facie evidence of the contents, execu- tion, and delivery of the original. Applicants shall pay any fees the department secretary or agency head of the contracting agency fixes to cover the cost of preparing the certified copy. (b) RIGHT TO BRING A CIVIL ACTION.— (1) IN GENERAL.—Every person that has fur- nished labor or material in carrying out work provided for in a contract for which a payment bond is furnished under section 3131 of this title and that has not been paid in full within 90 days after the day on which the person did or performed the last of the labor or furnished or supplied the material for which the claim is made may bring a civil action on the payment bond for the amount unpaid at the time the civil action is brought and may prosecute the action to final execution and judgment for the amount due. (2) PERSON HAVING DIRECT CONTRACTUAL RE- LATIONSHIP WITH A SUBCONTRACTOR.—A person having a direct contractual relationship with a subcontractor but no contractual relation- ship, express or implied, with the contractor furnishing the payment bond may bring a civil action on the payment bond on giving written notice to the contractor within 90 days from the date on which the person did or performed the last of the labor or furnished or supplied the last of the material for which the claim is made. The action must state with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. The notice shall be served— (A) by any means that provides written, third-party verification of delivery to the contractor at any place the contractor maintains an office or conducts business or at the contractor’s residence; or (B) in any manner in which the United States marshal of the district in which the public improvement is situated by law may serve summons. (3) VENUE.—A civil action brought under this subsection must be brought— Page 119 TITLE 40—PUBLIC BUILDINGS, PROPERTY, AND WORKS § 3134 (A) in the name of the United States for the use of the person bringing the action; and (B) in the United States District Court for any district in which the contract was to be performed and executed, regardless of the amount in controversy. (4) PERIOD IN WHICH ACTION MUST BE BROUGHT.—An action brought under this sub- section must be brought no later than one year after the day on which the last of the labor was performed or material was supplied by the person bringing the action. (5) LIABILITY OF FEDERAL GOVERNMENT.—The Government is not liable for the payment of any costs or expenses of any civil action brought under this subsection. (c) WAIVER OF RIGHT TO CIVIL ACTION.—A waiv- er of the right to bring a civil action on a pay- ment bond required under this subchapter is void unless 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. (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1148; Pub. L. 109–284, § 6(9), (10), Sept. 27, 2006, 120 Stat. 1213.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3133(a) ........ 40:270c. Aug. 24, 1935, ch. 642, § 3, 49 Stat. 794; Pub. L. 86–135, § 2, Aug. 4, 1959, 73 Stat. 279; Pub. L. 98–269, Apr. 18, 1984, 98 Stat. 156. 3133(b)(1), (2). 40:270b(a). Aug. 24, 1935, ch. 642, § 2(a), (b), 49 Stat. 794; Pub. L. 86–135, § 1, Aug. 4, 1959, 73 Stat. 279; Pub. L. 106–49, § 2(b), Aug. 17, 1999, 113 Stat. 231. 3133(b)(3)– (5). 40:270b(b). 3133(c) ........ 40:270b(c). Aug. 24, 1935, ch. 642, § 2(c), as added Pub. L. 106–49, § 2(c), Aug. 17, 1999, 113 Stat. 231. In subsection (b)(1), the words ‘‘may bring a civil ac- tion’’ are substituted for ‘‘shall have the right to sue’’ for consistency in the revised title and with other titles of the United States Code. The words ‘‘or sums’’ are omitted because of 1:1. In subsection (b)(2), the words ‘‘to the contractor at any place he maintains an office or conducts his busi- ness, or his residence, or in any manner in which the United States marshal of the district in which the pub- lic improvement is situated is authorized by law to serve summons’’ are restated to reflect the probable in- tent of Congress. See H. Rept. 106–277, Part 1, 106th Cong., 1st Sess., pp. 4, 7. In subsection (c), the words ‘‘bring a civil action’’ are substituted for ‘‘sue’’ for consistency in the revised title and with other titles of the United States Code. Editorial Notes AMENDMENTS 2006—Subsec. (b). Pub. L. 109–284, § 6(9), substituted ‘‘To’’ for ‘‘to’’ in heading. Subsec. (c). Pub. L. 109–284, § 6(10), inserted heading. § 3134. Waivers for certain contracts (a) MILITARY.—The Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, or the Secretary of Transportation may waive this subchapter with respect to cost-plus- a-fixed fee and other cost-type contracts for the construction, alteration, or repair of any public building or public work of the Federal Govern- ment and with respect to contracts for manufac- turing, producing, furnishing, constructing, al- tering, repairing, processing, or assembling ves- sels, aircraft, munitions, materiel, or supplies for the Army, Navy, Air Force, or Coast Guard, respectively, regardless of the terms of the con- tracts as to payment or title. (b) TRANSPORTATION.—The Secretary of Trans- portation may waive this subchapter with re- spect to contracts for the construction, alter- ation, or repair of vessels when the contract is made under sections 1535 and 1536 of title 31 or subtitle V of title 46, regardless of the terms of the contracts as to payment or title. (c) NATIONAL OCEANIC AND ATMOSPHERIC AD- MINISTRATION.—The Secretary of Commerce may waive this subchapter with respect to contracts for the construction, alteration, or repair of ves- sels, regardless of the terms of the contracts as to payment or title, when the contract is made under the Act entitled ‘‘An Act to define the functions and duties of the Coast and Geodetic Survey, and for other purposes’’, approved Au- gust 6, 1947 (33 U.S.C. 883a et seq.). (Pub. L. 107–217, Aug. 21, 2002, 116 Stat. 1149; Pub. L. 109–304, § 17(g)(2), Oct. 6, 2006, 120 Stat. 1709; Pub. L. 115–91, div. C, title XXXV, § 3502(b)(2), Dec. 12, 2017, 131 Stat. 1910; Pub. L. 115–232, div. C, title XXXV, § 3515(c), Aug. 13, 2018, 132 Stat. 2313.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3134(a) ........ 40:270e. Apr. 29, 1941, ch. 81, § 1, 55 Stat. 147; June 3, 1955, ch. 129, 69 Stat. 83. 3134(b) ........ 40:270f. Apr. 29, 1941, ch. 81, § 2, as added Pub. L. 91–469, § 39, Oct. 21, 1970, 84 Stat. 1036; Pub. L. 97–31, § 12(12), Aug. 6, 1981, 95 Stat. 154. In subsection (a), the words ‘‘Secretary of Transpor- tation’’ are substituted for ‘‘Secretary of Commerce’’ because of 49:108. The words ‘‘the manufacturing, pro- ducing, furnishing, construction, alteration, repair, processing, or assembling of’’ and ‘‘of any kind or na- ture’’ are omitted as unnecessary. In subsection (b), the words ‘‘of any kind or nature’’ are omitted as unnecessary. The words ‘‘sections 1535 and 1536 of title 31’’ are substituted for ‘‘the Act of June 30, 1932 (47 Stat. 382, 417–418), as amended [31 U.S.C. 686, 686b]’’ because of section 4(b) of the Act of September 13, 1982 (Public Law 97–258, 96 Stat. 1067), the first section of which enacted Title 31, United States Code. Editorial Notes REFERENCES IN TEXT An Act to define the functions and duties of the Coast and Geodetic Survey, and for other purposes, referred to in subsec. (c), is act Aug. 6, 1947, ch. 504, 61 Stat. 787, popularly known as the Coast and Geodetic Survey Act, which is classified generally to subchapter II (§ 883a et