MEMO
TO: Professor Ray Grisham
FROM: Ryan Davis Student ID: 620001032
DATE: 1/29/2015
SUBJECT: Clifford F. MacEvoy Co. v. United States ex rel Tomkins Co
RE: FIRAC #1
Clifford F. MacEvoy Company entered into a contract with the United States to both furnish the materials necessary and construct lodging for a defense housing project near Linden, New Jersey. The work was agreed to be done on a cost-plus-fixed-fee basis. In accordance with the Miller Act MacEvoy Company by way of contract with Aetna Casualty and Surety Company executed a payment bond of $1,000,000. This bond was conditioned on the punctual payment by MacEvoy "to all persons supplying labor and material in the prosecution of the work provided for in said contract." MacEvoy upon…show more content… Miller & Company for use in the construction previously referenced project. Miller & Company purchased these materials from the Calvin Tomkins Company. Miller & Company failed to pay Tomkins Company a balance of $12,033.49. Tompkins Company then within the requisite ninety days from the date Tomkins furnished the last of the materials to Miller, gave written notice to MacEvoy and the surety (Aetna Casualty and Surety Company) of the amount of Tomkins' claim for materials furnished to Miller. The District Court the case was originally tried in dismissed the complaint for “failure to state a claim against them”. This decision was reversed by the Circuit Court of Appeals because of an important question brought to the courts attention presented under the Miller Act. The question under the Miller Act was whether or not a material provider (Miller) could be qualified as being a subcontractor. If so the direct relationship between Tomkins and Miller allows for Tomkins to sue the surety for full compensation. However if Miller Company is ruled as being a material provider then the relationship between Tomkins and MacEvoy is “too remote” a relationship to secure compensation from the payment bond. The court reversed the decision siting…show more content… The Miller Act – The Miller Act which repealed the Heard Act requires every Government contractor where contract amount is greater than $2,000, to furnish a payment bond with a surety. The Miller Act then states that "every person who has furnished labor or material in the prosecution of the work provided for in such contract" A proviso (a condition attached to an agreement) however states that the pursuant of payment from the surety must have a direct contractual relationship with a sub-contractor to the prime
