The Miller Act, 40 U.S.C. § 270a et seq., was set up to protect those who furnish labor and material in the performance of Government work. It accomplishes this purpose by requiring that, before any contract exceeding $2000. in amount for the construction or alteration of a public building or work is awarded to any person, such person must furnish to the United States a bond with a surety for the protection of all persons supplying labor and material on this contract. If a person supplying labor or material has not been paid after the expiration of 90 days from the day on which the last of the labor or material was furnished, he may sue the surety on the above bond for the amount of his claim against the contractor. 40 U.S.C. § 270b. However, Congress has provided that "* * * no such suit shall be commenced after the expiration of one year after the day on which the last of the * * * material was supplied by him." See 40 U.S.C. § 270b(b).
The plaintiff has discovered that, according to the records of the contractor, more than one year has passed since the last material was supplied to Hytron on three of the jobs it performed at the Navy Yard and, in paragraph 8 of its Petition to amend its Complaint, admits that it is barred from instituting suit directly against the surety on the bonds on these three contracts by the above one-year statute of limitations of the Miller Act.
This Petition also seeks to amend the Complaint to cover a claim for goods supplied to Hytron under Contract NBY-48253 (see 7(d) of the Petition). Plaintiff, by this Petition, seeks to amend its original Complaint to include all the bonds which it has discovered cover the contracts for which it has supplied material.
The plaintiff's argument basically is that it delivered the materials in question to the contractor at the Navy Yard and these were applied to various jobs which the contractor was conducting at the Navy Yard. The plaintiff was unaware of the fact that Hytron had more than one Government contract and that it was allocating materials delivered by the plaintiff to more than one contract. Plaintiff contends that when it instituted the present action, its intent was to include the claims for all the material delivered and that it had no way of knowing that all the material which had been furnished to Hytron was not used on one contract. It now seeks to conform the Complaint to information acquired subsequent to the filing of the Complaint during discovery.
Plaintiff relies exclusively on F.R.Civ.P. 15(a) and the general rule of liberality in allowing amendments by leave of court. As stated by Professor Moore, this liberality is allowed "for the purpose of presenting the real issues of the case, where the moving party has not been guilty of bad faith and is not acting for the purpose of delay, the opposing party will not be unduly prejudiced, and the trial of the issues will not be unduly delayed."
In the instant case, the opposing party will unquestionably be unduly prejudiced if it is precluded from pleading the statute of limitations, which it could otherwise raise if new suits were brought for material supplied on these subsequently discovered contracts.
As previously stated, the purpose of the Miller Act was to protect those furnishing labor and materials for Government contracts. This was done by creating a remedy for the supplier through setting up a liability in a surety on Government contracts. The protection given to these suppliers was the right to sue the surety on the particular bond covering the contract under which material was supplied. § 2 of the Miller Act, 40 U.S.C. § 270b(a) states:
"Every person who has furnished labor or material * * * in respect of which a payment bond is furnished * * * and who has not been paid in full therefor * * * shall have the right to sue on such payment bond for the amount, or the balance thereof * * *."