Surety Transactions and Litigation | Shin Law Office
When the Prime Doesn’t Pay, You Still Have Rights
I’ve worked with many subcontractors in Chantilly and throughout Fairfax County who’ve faced the same nightmare scenario: they’ve finished their work, paid their crews, and met every contractual obligation, yet the prime contractor refuses to pay.
It’s not just frustrating, it’s financially devastating.
Unpaid invoices can cripple cash flow, delay future projects, and put good businesses at risk. The good news?
Virginia law provides multiple avenues for subcontractors to protect themselves, but only if you know how and when to act.
Step 1: Know What’s in Your Subcontract
Before you ever pick up a tool, your first line of defense is your subcontract agreement.
Too often, subcontractors sign documents drafted entirely by the prime, with clauses that limit or delay payment rights.
If your subcontract includes “pay-if-paid” or “pay-when-paid” clauses, understand the difference:
- Pay-if-paid shifts the risk entirely to you—you only get paid if the prime does.
- Pay-when-paid delays your payment but doesn’t eliminate the prime’s obligation.
In Virginia, these clauses can be enforceable depending on how they’re written.
I always advise subcontractors to review these provisions carefully before signing.
A few words can make the difference between getting paid in 30 days or never.
Step 2: Use Your Mechanic’s Lien Rights Wisely
Under Virginia law, mechanics’ liens are one of the strongest tools subcontractors have.
In Chantilly, where commercial and government construction are booming, missing a lien deadline can mean forfeiting thousands of dollars.
To preserve your lien rights:
- You must file a Memorandum of Lien in the proper county courthouse (Fairfax County Circuit Court) within 90 days from the last day of the month you performed work or delivered materials.
- Your lien can only cover labor, materials, and equipment directly tied to the project, not overhead or lost profits.
- Always include detailed, accurate documentation, as Virginia courts are strict about lien accuracy.
Filing correctly and on time can put enormous pressure on the property owner and prime contractor to resolve payment issues before the lien clouds the title.
Step 3: Assert Your Bond Claim Rights
If your work is on a public project, say, for Fairfax County schools, roadwork, or a state-funded facility, you can’t file a lien on public property. Instead, you must use your bond rights under the Virginia Public Procurement Act or the federal Miller Act, depending on the contract.
Here’s what matters most:
- You must notify the surety and prime contractor of your unpaid balance within 90 days of the last day you provided labor or materials.
- You can then file suit on the payment bond if payment isn’t made within the statutory window.
I’ve seen subcontractors recover 100% of what they’re owed through bond claims when handled correctly—and lose everything when they miss a deadline by just a few days.
Step 4: Keep Meticulous Records
Documentation is your best weapon. Every change order, email, delivery ticket, and text message can strengthen your claim. I tell my clients to treat every project like a potential legal file because if the prime fails to pay, it will be.
Courts look for clarity. A clean paper trail showing your invoices, approved work, and payment history often determines who wins and who loses.
Step 5: Act Fast—Silence Is the Prime’s Best Friend
Too many subcontractors hope things will “work themselves out.” Unfortunately, delay often benefits only the party holding your money.
If you’re not paid within the time agreed in your subcontract, it’s time to act.
That means:
- Send a formal written demand for payment.
- Consult an attorney familiar with construction law in Fairfax County.
- Preserve your lien or bond rights before deadlines expire.
Every day you wait, your leverage weakens.
Final Thoughts: You Built It—You Deserve to Be Paid
As a construction attorney serving Chantilly and Northern Virginia, I’ve helped countless subcontractors navigate the tough road of payment disputes.
The key to surviving these situations is proactivity and preparation.
You deserve to be paid for your work on time and in full. And with the right legal guidance, you can make sure your rights aren’t buried under someone else’s bad accounting.
If you’re a subcontractor in Chantilly, Fairfax, or anywhere in Northern Virginia who hasn’t been paid by a prime contractor, contact me today.
We’ll review your contract, preserve your rights, and take the necessary steps to get you what you’ve earned.
Schedule a confidential consultation today.
Anthony I. Shin, Esq. | Principal Attorney | Shin Law Office
