Louisiana Public Works Act: Claims, Deadlines, and Retainage

The Louisiana Public Works Act is the state law that governs how subcontractors, suppliers, laborers, equipment lessors, and design professionals get paid on government construction projects. Because public property cannot be seized to satisfy a debt, the Act replaces the usual property lien with a payment bond that the prime contractor must post before work begins, and it gives unpaid parties a tightly timed procedure for making a claim against that bond. Miss a deadline and the claim is gone, no matter how legitimate the debt.

When the Act Applies

The Act covers the construction, improvement, or repair of any public facility or immovable property that a public entity owns, uses, or leases.¹ That reaches far past roads and government buildings: school renovations, parish drainage work, water treatment upgrades, and state university construction all qualify. The test is ownership or control by a government body.

For any public contract above $25,000, the prime contractor must furnish a payment bond with a surety worth at least half the contract price, and the bond and contract have to be recorded in the mortgage records of the parish where the work is being done within 30 days of the start of work.² That recorded bond is what you will pursue if you go unpaid, and the parish mortgage records are where you look to identify the surety.

Federal projects in Louisiana, such as military base or federal courthouse work, are not covered by the state Act. Those fall under the federal Miller Act, which has its own thresholds and deadlines. More on that at the end.

Who Can File a Claim

The Act defines “claimant” broadly. It covers anyone owed money under a contract with the project owner, the prime contractor, or a subcontractor for performing work, furnishing materials or supplies, or transporting materials to the job site by a for-hire carrier. Equipment rental companies with a written lease for movable property used on site qualify, as do licensed architects, surveyors, engineers, and their professional subconsultants.³

Protection stops at one remove. A material supplier that sells to another material supplier, rather than directly to a contractor or subcontractor, has no claim against the bond and will have to pursue ordinary contractual remedies.

Equipment lessors face one extra step: deliver a copy of the lease to the project owner within 10 days of the equipment first arriving on site, or lose the right to file a claim.³

The 45-Day Filing Deadline

Every meaningful deadline under the Act runs from one event: the recording of acceptance in the parish mortgage records. Once the public entity’s representative decides the work is complete or substantially complete, meaning finished enough that the entity can use the project for its intended purpose, the entity has 30 calendar days to record a formal acceptance. If the entity does not do it, the contractor is supposed to record acceptance within 45 days of completion or substantial completion, based on the design professional’s recommendation.⁴

From the date acceptance (or a notice of default) is recorded, every claimant has 45 days to file a sworn statement of the amount owed and record it in the mortgage records of the parish where the work was done.³ One day late kills the claim. No one is required to tell you acceptance has been recorded, so you have to watch the parish records yourself.

How to File the Sworn Statement

The sworn statement goes two places at once: filed with the governing authority overseeing the project and recorded in the office of the recorder of mortgages in the parish where the work was done.³ “Sworn” means signed under oath before a notary.

The statute does not list required contents, but a usable claim identifies you and your contact information, states the amount owed and how it was calculated, describes the work or materials, and names the project, the prime contractor, and the public entity. To get the surety’s name, request the recorded payment bond from the public entity or pull it from the parish mortgage records where it was filed at the start of the job.

Extra Notice if You Worked Below the Prime

If your contract was with a subcontractor rather than the prime, recording the sworn statement is not enough on its own. You also have to send separate written notice to the prime contractor within 45 days of the recorded acceptance or notice of default. The notice must state, with reasonable accuracy, the amount claimed and identify who you furnished materials to or performed work for, and it has to go by registered or certified mail to any Louisiana office the prime maintains.⁵

Skip that step and you lose the right to sue the prime or the surety, even if your sworn statement was recorded perfectly. This is the trap that catches sub-tier claimants most often.

Getting Paid: Concursus and Direct Suit

If recorded claims remain unpaid after the 45-day filing period closes, the public entity is supposed to file a petition in the district court of the parish where the work was performed, naming every claimant, the contractor, the subcontractor, and the surety. That proceeding, called a concursus, resolves all competing claims in a single lawsuit. Claimants’ debts get paid before the public entity’s own claims against the contractor. If the entity drags its feet, any claimant can start the concursus independently.⁶

You do not have to wait for the concursus. Any claimant who properly recorded a sworn statement and complied with the notice rules can sue the contractor, the surety, or both directly. The hard outside limit is one year from the date acceptance or notice of default was recorded.⁵ After that year, courts will not hear the claim.

Faster Track for Material Suppliers

Material suppliers have a separate route that can force the surety to pay without a lawsuit. If a materialman delivered materials matching the contract specifications, has gone unpaid for 90 days after delivery, and sends a notice of nonpayment to the general contractor, the surety, and the project owner no sooner than 45 days after delivery, the surety must pay within 10 days of receiving the payment notice. Every notice must go by registered or certified mail.⁵ This procedure runs alongside the standard claim process; a materialman can use both.

Attorney’s Fees

Before filing suit, send a formal written demand for payment to both the contractor and the surety. If 30 days pass without payment and you then recover the full amount of a properly recorded claim in court, the judge adds 10 percent attorney’s fees on top of the recovery.⁷ That makes smaller claims worth litigating.

The fee shift cuts both ways. If a court finds the claim was brought in bad faith or without just cause, the contractor or surety can recover reasonable attorney’s fees from the claimant.⁷

Retainage Caps

Retainage is the portion of each progress payment that the public entity withholds as security until the job is finished. Louisiana caps the withholding at 10 percent on projects under $500,000 and 5 percent on projects of $500,000 or more, and the entity cannot hold back more than the value of remaining punch list items. As those items are completed, the funds have to be released after the 45-day lien period runs.⁸

Contractors cannot waive those caps by contract. The limits do not apply to projects by the Department of Transportation and Development, which operates under its own rules.⁸

When the Public Entity Itself Is Liable

Normally the surety pays. But if a claimant objects to the surety’s solvency, or if the public entity failed to require a bond or failed to record one on time, a court hears those objections on an expedited basis. If the court finds the surety financially inadequate or the bond never properly obtained, the public entity itself becomes liable to the same extent the surety would have been.⁹ That is what gives the Act teeth when a bond is missing or worthless.

Federal Projects Are Different

If the project is federally owned, the Miller Act controls, not the Louisiana Act. Federal contracts over $100,000 require both a performance bond and a payment bond, with the payment bond equal to the full contract amount unless the contracting officer determines that is impractical.¹⁰

The claim mechanics also change. Under the Miller Act, a claimant unpaid for 90 days after last furnishing labor or materials can sue on the payment bond. Sub-tier claimants must give written notice to the prime within 90 days of their last work or delivery, stating the amount claimed and identifying the party they supplied, by a method that provides written third-party verification. The lawsuit must be filed within one year of the claimant’s last labor or materials, which is a different trigger than Louisiana’s one-year clock from the recorded acceptance.¹¹ Confirm which law governs your job before you count days.

1
Louisiana State Legislature. Louisiana Code 38:2211 – Definitions
2
FindLaw. Louisiana Code 38:2241 – Written Contract and Bond
3
Justia Law. Louisiana Code 38:2242 – Claimant Defined; Filing of Sworn Statements of Amounts Due; Payment by Contracting Authority
4
Justia Law. Louisiana Code 38:2241.1 – Acceptance of Certain Public Works
5
Louisiana State Legislature. Louisiana Code 38:2247 – Construction of Part
6
Justia Law. Louisiana Code 38:2243 – Petitions by Authorities Having Work Done; Concursus Proceedings
7
Justia Law. Louisiana Code 38:2246 – Attorneys Fees
8
Justia Law. Louisiana Code 38:2248 – Provisions Relative to Payment
9
Justia Law. Louisiana Code 38:2244 – Liability on Bond; Objection to Solvency or Sufficiency; Certificate
10
Office of the Law Revision Counsel. 40 USC 3131 – Bonds of Contractors of Public Buildings or Works
11
Office of the Law Revision Counsel. 40 USC 3133 – Rights of Persons Furnishing Labor or Material