英语原文：

SUBCHAPTER III—BONDS

§3131. Bonds of contractors of public buildings or works
(a) DEFINITION.—In this subchapter, the term ‘‘contractor’’ means a person awarded a contract described in subsection (b).
(b) TYPE OF BONDS REQUIRED.—Before any contract of more than $100,000 is awarded for the construction, alteration, or repair of any public building or public work of the Federal Government, a person must furnish to the Government the following bonds, which become binding when the contract is awarded:
(1) PERFORMANCE BOND.—A performance bond with a surety satisfactory to the officer awarding the contract, and in an amount the officer considers adequate, for the protection of the Government.
(2) PAYMENT BOND.—A payment bond with a surety satisfactory to the officer for the protection of all persons supplying labor and material in carrying out the work provided for in the contract for the use of each person. The amount of the payment bond shall equal the total amount payable by the terms of the contract unless the officer awarding the contract determines, in a writing supported by specific findings, that a payment bond in that amount is impractical, in which case the contracting officer shall set the amount of the payment bond. The amount of the payment bond shall not be less than the amount of the performance bond.
(c) COVERAGE FOR TAXES IN PERFORMANCE BOND.—
(1) IN GENERAL.—Every performance bond required under this section specifically shall provide coverage for taxes the Government imposes which are collected, deducted, or withheld from wages the contractor pays in carrying out the contract with respect to which the bond is furnished.
(2) NOTICE.—The Government shall give the surety on the bond written notice, with respect to any unpaid taxes attributable to any period, within 90 days after the date when the contractor files a return for the period, except that notice must be given no later than 180 days from the date when a return for the period was required to be filed under the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.).
(3) CIVIL ACTION.—The Government may not bring a civil action on the bond for the taxes—
(A) unless notice is given as provided in this subsection; and
(B) more than one year after the day on which notice is given.
(d) WAIVER OF BONDS FOR CONTRACTS PERFORMED IN FOREIGN COUNTRIES.—A contracting officer may waive the requirement of a performance 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 impracticable for the contractor to furnish the bonds.
(e) AUTHORITY TO REQUIRE ADDITIONAL BONDS.—This section does not limit the authority of a contracting officer to require a performance bond or other security in addition to those, or in cases other than the cases, specified in subsection (b).
§3132. Alternatives to payment bonds provided by Federal Acquisition Regulation
(a) IN GENERAL.—The Federal Acquisition Regulation 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 OFFICER.—The contracting officer for a contract shall—
(1) select, from among the payment protections provided for in the Federal Acquisition Regulation pursuant to subsection (a), one or more payment protections which the offer or awarded the contract is to submit to the Federal Government for the protection of suppliers of labor and materials for the contract; and
(2) specify in the solicitation of offers for the contract the payment protections selected.

§3133. Rights of persons furnishing labor or material
(a) RIGHT OF PERSON FURNISHING LABOR OR MATERIAL TO COPY OF BOND.—The department secretary 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 affidavit that the person has supplied labor or material 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, execution, 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 furnished 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 RELATIONSHIP WITH A SUBCONTRACTOR.—A person having a direct contractual relationship with a subcontractor but no contractual relationship, 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—
(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 subsection 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) A waiver of the right to bring a civil action on a payment 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.

§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 Government and with respect to contracts for manufacturing, producing, furnishing, constructing, altering, repairing, processing, or assembling vessels, aircraft, munitions, materiel, or supplies for the Army, Navy, Air Force, or Coast Guard, respectively, regardless of the terms of the contracts as to payment or title.
(b) TRANSPORTATION.—The Secretary of Transportation may waive this subchapter with respect to contracts for the construction, alteration, or repair of vessels when the contract is made under sections 1535 and 1536 of title 31, the Merchant Marine Act, 1936 (46 App. U.S.C. 1101 et seq.), or the Merchant Ship Sales Act of 1946 (50 App. U.S.C. 1735 et seq.), regardless of the terms of the contracts as to payment or title.

美国工程保证担保的历史

1791年，美国马里兰州议会颁布了第一个 Mechanics’ Lien (“技工留置权”) 法律，将建设工程物之担保作为业主支付担保，，被欠款的人可依法留置和拍卖业主的工程，由此开创了现代工程担保的历史。
1894年，美国国会颁布了赫德法案 (Heard Act)，开创了承包商履约保证担保的历史。
1935年，美国国会以米勒法案 (Miller Act) 取代了赫德法案，开创了承包商付款保证担保的历史。
2002年，美国国会在公共法律107-217中废除了米勒法案，并重建了一个工程担保新法案。
1791年至今的200多年来，美国工程担保制度日趋完善且独具特色，世人称之为“美式担保”。


赫德法案的历史背景

19世纪下半叶，电力的应用引发了第二次工业革命，到19世纪末，美国建筑业进入了迅猛发展时期。当时，成为承包商无需任何特殊的教育和经验背景，组建公司的成本也很低，大量劣质承包商使公共工程失败的比率急剧上升。为规范建筑市场和促进建筑业的健康发展，1894年8月13日，美国国会颁布了赫德法案，规定承接联邦政府工程的承包商必须提交一份履约保证担保，并以法人保证担保取代了个人保证担保。

米勒法案的历史背景

第一次世界大战后，美国经济高速发展，出现了许多大型基建项目，例如1931年建造的103层的纽约帝国大夏。由于工程承包层次越来越复杂，工程款沿合同链流动时经常遇到各种障碍，工资、材料款、分包款经常不能得到按时支付从而导致大量留置索赔，以至业主可能要付两次工程款。承包商和分包商亏损或破产甚至卷款而逃时，往往留下一堆烂帐让业主去赔付。
为最大限度免除政府责任和保护公共利益，1935年8月24日，美国国会以米勒法案取代了赫德法案，在赫德法案的基础上增加了承包商付款保证担保。随后，美国各州也制订了本质相同而条款略有差异的类似法案，统称为小米勒法案 (Little Miller Acts)。
施工留置权法律规定，发生留置权登记后，业主可向不动产登记机构提交一份保额为留置索赔金额100%以上的第三方保证，同时解除留置权登记。承包商付款担保提交给业主，事先在不动产登记机构登记备案，工人、供应商、分包商的留置索赔也就变成了对承包商付款担保的索赔，从而保护政府工程免受留置。


米勒法案的发展历程

1935年的米勒法案 (Miller Act) 规定，2000美元以上的合同实行保证担保。1978年2月美国公共法律95-585将2000美元修改为5万美元；同年9月，众议院司法委员会95-1666号报告又将5万美元修订为2.5万美元。
1941年爆发珍珠港战役，美国宣布参加二战。米勒法案规定海岸防卫等军事设施放弃付款担保。
1966年颁布的公共法律89-719规定，米勒法案的承包商履约担保包含对承包商应缴税金的保证。
1994年，根据公共法律103-355修订了米勒法案，规定10万美元以下的合同无须实行担保。
原米勒法案规定，付款担保保额不高于合同价50%且不高于250万美元。据Dun & Bradstreet的《商业破产报告》称，1990～1997年期间，美国有8万家建筑公司破产，遗留下工程债务218亿美元。1998年，美国众议院决议案H.R.3032建议提高米勒法案付款担保的保额，并要求对米勒法案进行现代化改造。1999月8月17日，美国国会颁布《建筑业付款保护法案》(公共法律106-49)，规定：米勒法案付款担保的保额不得低于履约担保的保额；放弃付款担保的索赔诉讼权必须以书面形式并由有权弃权的人在工作或供料后签署，这意味着任何人都无权代表他人弃权，并不得强迫工人、供应商、分包商事先弃权，以此作为签约条件。
赫德法案编撰入美国法典 (United States Code) 第40篇 (公共建筑、财产和工程) 第3章 (一般公共建筑和工程) 第270节，即：40 U.S.C. 270。①
1935年的米勒法案以 40 U.S.C. 270a-270d继承并取代了赫德法案。1994年修改增加了第270d-1节。1996年修订时重新整理了米勒法案文本，增加了270e、270f共2节。米勒法案的最后文本为40 U.S.C. 270a-270f，最后一次修订时间是2002年1月22日。
2002年8月21日，美国国会在公共法律107-217中废除了米勒法案，并重建了一个新法案：美国法典第40篇第31章 (GENERAL常规) 第Ⅲ分章 (BONDS担保) 第3131至3134节 (40 U.S.C. 3131-3134)。新法案与米勒法案的最后版本并无原则性差异，只是理顺了米勒法案的文本，使之现代化、清晰可读和更严谨。例如 “诉讼”，米勒法案是suit (诉讼)，新法案是civil action (民事诉讼)。主要修改内容是扩大了付款保护范围，并规定2.5～10万美元的合同单独实行付款担保。

注释：
①“40 U.S.C. 270”是美国文献引用法律的习惯用法，意指“美国法典 (U.S.C.) 第40篇第270节”，余者类推。

米勒法案的最后版本（最后修订时间2002年1月22日）

UNITED STATES CODE
TITLE 40 - PUBLIC BUILDINGS, PROPERTY, AND WORKS
CHAPTER 3 - PUBLIC BUILDINGS AND WORKS GENERALLY


270a. Bonds of contractors of public buildings or works
(a) Type of bonds required
Before any contract for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person, who is hereinafter designated as ’’contractor’ :
(1) A performance bond with a surety or sureties satisfactory to the officer awarding such contract, and in such amount as he shall deem adequate, for the protection of the United States.
(2) A payment bond with a surety or sureties satisfactory to such officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person. The amount of the payment bond shall be equal to the total amount payable by the terms of the contract unless the contracting officer awarding the contract makes a written determination supported by specific findings that a payment bond in that amount is impractical, in which case the amount of the payment bond shall be set by the contracting officer. In no case shall the amount of the payment bond be less than the amount of the performance bond.
(b) Waiver of bonds for contracts performed in foreign countries
The contracting officer in respect of any contract is authorized to waive the requirement of a performance bond and payment bond for so much of the work under such contract as is to be performed in a foreign country if he finds that it is impracticable for the contractor to furnish such bonds.
(c) Authority to require additional bonds
Nothing in this section shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to those, or in cases other than the cases specified in subsection (a) of this section.
(d) Coverage for taxes in performance bond
Every performance bond required under this section shall specifically provide coverage for taxes imposed by the United States which are collected, deducted, or withheld from wages paid by the contractor in carrying out the contract with respect to which such bond is furnished. However, the United States shall give the surety or sureties on such bond written notice, with respect to any such unpaid taxes attributable to any period, within ninety days after the date when such contractor files a return for such period, except that no such notice shall be given more than one hundred and eighty days from the date when a return for the period was required to be filed under title 26. No suit on such bond for such taxes shall be commenced by the United States unless notice is given as provided in the preceding sentence, and no such suit shall be commenced after the expiration of one year after the day on which such notice is given.

270b. Rights of persons furnishing labor or material
(a) Right to sue on payment bond
Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under sections 270a to 270d-1 of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him: Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating 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 . Such notice shall be served by any means which provides written, third-party verification of delivery. (FOOTNOTE 1) to the contractor at any place he maintains an office or conducts his business, or his residence, or in any manner in which the United States marshal of the district in which the public improvement is situated is authorized by law to serve summons.
(FOOTNOTE 1) So in original. The period probably should not appear.
(b) Civil action; jurisdiction; statute of limitations; costs and expenses
Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy in such suit, but no such suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied by him. The United States shall not be liable for the payment of any costs or expenses of any such suit.
(c) Nonwaiver of rights
Any waiver of the right to sue on the payment bond required by sections 270a to 270d-1 of this title shall be void unless it is in writing, signed by the person whose right is waived, and executed after such person has first furnished labor or material for use in the performance of the contract.

270c. Right of person furnishing labor or material to copy of bond
The department secretary or agency head of the contracting agency is authorized and directed to furnish, to any person making application therefor who submits an affidavit that he has supplied labor or materials for such work and payment therefor has not been made or that he is being sued on any such bond, a certified copy of such bond and the contract for which it was given, which copy shall be prima facie evidence of the contents, execution, and delivery of the original . Applicants shall pay for such certified copies such fees as the department secretary or agency head of the contracting agency fixes to cover the cost of preparation thereof.
270d. ’’Person’’ defined
The term ’’person’’ and the masculine pronoun as used in sections 270a to 270d-1 of this title shall include all persons whether individuals, associations, copartnerships, or corporations.
270d-1. Waiver of sections 270a to 270d with respect to small contracts
Sections 270a to 270d of this title do not apply to a contract in an amount that is not greater than $100,000.
270e. Waiver of sections 270a to 270d-1 with respect to Army,Navy, Air Force, or Coast Guard contracts
The Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, or the Secretary of Transportation may waive sections 270a to 270d-1 of this title 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 United States and with respect to contracts for the manufacturing, producing, furnishing, construction, alteration, repair, processing, or assembling of vessels, aircraft, munitions, materiel, or supplies of any kind or nature for the Army, Navy, Air Force, or Coast Guard, respectively, regardless of the terms of such contracts as to payment or title .

270f. Waiver of sections 270a to 270d-1 with respect to
The Secretary of Transportation may waive sections 270a to 270d-1 of this title, with respect to contracts for the construction, alteration, or repair, of vessels of any kind or nature, entered into pursuant to sections 1535 and 1536 of title 31, the Merchant Marine Act, 1936 (46 App. U.S.C. 1101 et seq.), or the Merchant Ship Sales Act of 1946 (50 App. U.S.C. 1735 et seq.), regardless of the terms of such contracts as to payment or title.

还是可以，谢谢楼主发帖