GA Code § 36-91-90 (2021)
2021 Georgia Code|Title 36 - Local Government|Chapter 91 - Public Works Bidding|Article 3 - Bonds|Part 4 - Payment Bonds|§ 36-91-90. (See Editor's notes.) Requirement for Payment Bonds

 Payment bonds shall be required for all public works construction contracts subject to the requirements of this chapter with an estimated contract amount greater than $100,000.00; provided, however, that a governmental entity may require a payment bond for public works construction contracts that are estimated at $100,000.00 or less. No public works construction contract requiring a payment bond shall be valid for any purpose, unless the contractor shall give such payment bond; provided, however, that, in lieu of such payment bond, the governmental entity, in its discretion, may accept a cashier's check, certified check, or cash for the use and protection of all subcontractors and all persons supplying labor, materials, machinery, and equipment in the prosecution of work provided in the contract. The payment bond or other security accepted in lieu of a payment bond shall be in the amount of at least the total amount payable by the terms of the initial contract and shall be increased if requested by the governmental entity as the contract amount is increased.    (Code 1981, §36-91-70, enacted by Ga. L. 2000, p. 498, § 1; Code 1981, §36-91-90, as redesignated by Ga. L. 2001, p. 820, § 12.)   For application of this statute in 2020 and 2021, see Executive Orders 06.11.20.01, 06.29.20.02, 07.15.20.01, 07.31.20.02, 08.15.20.01, 08.31.20.02, 09.15.20.01, 09.30.20.02, 10.15.20.01, 10.30.20.02, 11.13.30.01, 11.30.20.01, 12.08.20.01, 12.30.20.02, 01.15.21.01, 01.29.21.02, 02.15.21.01, 02.26.21.02, 03.12.21.01, 03.31.21.03, 04.30.21.01, and 05.28.21.02.   A listing of Executive Orders issued in 2020 and 2021 can be found at https://gov.georgia.gov/executive-action/executive-orders.   Law reviews.   - For survey article on construction law, see 59 Mercer L. Rev. 55 (2007) and 60 Mercer L. Rev. 59 (2008). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015).   JUDICIAL DECISIONS   Bond was adequate remedy at law for subcontractor on school project.    - When a subcontractor on a school district's high school project had a remedy against the general contractor on the general contractor's performance bond under O.C.G.A. § 36-91-90, this legal remedy was adequate and precluded the subcontractor from asserting an equitable lien against the school district. McArthur Elec., Inc. v. Cobb County Sch. Dist., 281 Ga. 773, 642 S.E.2d 830 (2007).    Subcontractor, that received a transfer of funds by or on behalf of the debtor as the general contractor, argued its potential claim under O.C.G.A. § 36-91-93 of the Georgia Little Miller Act against the payment bond precluded the bankruptcy trustee from avoiding the transfer as a preference under 11 U.S.C. § 547, as constituting contemporaneous new value. The subcontractor also argued the funds were held in constructive trust, were earmarked, or were paid in the ordinary course of business. Watts v. Pride Util. Constr., Inc. (In re Sudco, Inc.), Bankr. (Bankr. N.D. Ga. Sept. 27, 2007).   Compliance with payment bond requirements.    - When the general contractor failed to pay the subcontractor for the subcontractor's work on a city project and the surety was insolvent, and the subcontractor sued the general contractor and the city for the subcontractor's work, the trial court properly granted summary judgment in favor of the city because the city complied with the payment bond requirements, and the subcontractor was limited to the exclusive remedy set forth in Georgia's payment bond statutes, O.C.G.A. §§ 36-91-90 and36-91-91. J. Squared Plumbing Company, Inc. v. City of Atlanta, 337 Ga. App. 229, 786 S.E.2d 894 (2016).   Constructive trust created.    - Constructive trust is created in favor of a subcontractor over funds paid by the owner of property to the contractor when the project is a public works project and the subcontractor enjoys no lien rights, but is entitled to file a claim against a payment bond in accordance with the Georgia Little Miller Act, O.C.G.A. § 36-91-90 et seq. Watts v. Pride Util. Constr., Inc. (In re Sudco, Inc.), Bankr. (Bankr. N.D. Ga. Sept. 27, 2007).   Emergency exception.    - City was not required to obtain a payment bond in compliance with O.C.G.A. § 36-91-90 because the requirement did not apply to emergency projects, O.C.G.A. § 36-91-22(e); the city's description in the city's minutes of the "emergency replacement of a 10-inch sanitary sewer main on Embassy Drive" was sufficient to describe the nature of the emergency. City of College Park v. Sekisui SPR Ams., LLC, 331 Ga. App. 404, 771 S.E.2d 101 (2015), cert. denied, No. S15C1141, 2015 Ga. LEXIS 471 (Ga. 2015).    Cited in Complete Wiring Solutions, LLC v. Astra Group, Inc., 335 Ga. App. 723, 781 S.E.2d 597 (2016).