an action under the Miller Act against the contractor or the surety. Once the requisite ninety-day period has elapsed, the Miller Act permits a subcontractor to seek payment against the payment bond. We, therefore, reverse the district court’s judgment in favor of Reliance and its principal, Weststar, on Walton’s Miller Act claim and remand for further proceedings consistent with this opinion. Because we remand for further proceedings against both Defendants, we also vacate the district court’s award of attorney’s fees to Defendants as premature. AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED. 1 . We are not the only circuit to follow this approach in Miller Act cases. See, e.g., United States ex rel. T.M.S. Mech. Contractors, 942 F.2d 946, 953 (5th Cir.1991) (<HOLDING>); United States ex rel. Gibson v. Harman, 192
holding that freight and transportalion charges are not recoverable under the terms of the miller act holding  under the predecessor statute to the miller act  that the cost of food clothing and lodging for laborers is recoverable under the terms of the miller act holding that lost profits are not recoverable under the terms of the miller act holding that the cost of capital equipment is not recoverable under the terms of the miller act holding that injuries suffered by laborers are not recoverable under the terms of the miller act