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Use Certified Mail for Your Preliminary 20-Day Notices

  • 1.  Use Certified Mail for Your Preliminary 20-Day Notices

    Posted 06-09-2015 13:39
    Use Certified Mail for Your Preliminary 20-Day Notices on Arizona Government Projects!

    No one sends preliminary 20-day notices by certified mail.  After all, why would you?  The Arizona mechanics' and materialmen's lien statutes only require delivery of the preliminary 20-day notice by regular, first-class mail.

    The language in Arizona's "Little Miller Act" for bonded projects is different from the language in the lien statute, however.  The Little Miller Act requires material suppliers on Arizona public works projects to provide estimates of costs within 20 days of supplying labor or materials and notice of any unpaid claims within 90 days of completion.

    The Little Miller Act requires that both the 20- and 90-day notices "shall be served by registered or certified mail, postage prepaid . . . ."  To assert a claim against the payment bond required on an Arizona public works project, the business providing labor or materials to the project must send even the preliminary 20-day notice by registered or certified mail.

    The Court of Appeals acknowledged "that this opinion may have a negative impact on an apparently long-standing industry practice."[1]  The only apparent way to avoid the requirement that the notices be sent by registered or certified mail is if the claimant can prove that the contractor and the surety received "actual notice."  The problem is that if the contractor or surety claim they did not receive actual notice, the claimant will be unable in most cases to show the delivery of the notice unless the notice was sent by certified mail.

    Subcontractors and Material Suppliers Need to Change their Practices Immediately!

    Whenever you are doing work on a bonded public works project in Arizona, send your preliminary 20-day notice by certified mail.

    You could send the notice by registered mail, but who wants to comply with that amount of red tape?  You need to distinguish between your private projects where the notice can be sent by regular mail and your bonded public works projects where the notice must now be sent by certified mail.  Make sure you change your procedures.

    If you have any questions concerning bond or lien claims, please call me.

    [1]  Cemex Construction Materials South, LLC v. Falcone Brothers & Associates, Inc. and The Guarantee Company of North America, Arizona Court of Appeals, Division Two, filed April 30, 2015.

    Michael R. King, Esq.
    Gammage & Burnham, P.L.C.
    (602) 256-4405