Act surety to avoid liability on the payment bond based on an unsatisfied “pay when and if paid” clause in the subcontract would, for all practical purposes, prohibit a subcontractor from exercising its Miller Act rights until the prime contractor has been paid by.the government. In cases where the government does not pay the prime contractor within the one year statute of limitations period, the subcontractor would be barred from asserting its Miller Act rights. Walton has performed its obligations under the subcontract and waited the requisite ninety days. Permitting Defendants to avoid liabilit iller Act case, the Fifth Circuit emphasized that the Miller Act conditions the right of recovery on the passage of time, not payment by the government. See T.M.S. Mech., 942 F.2d at 949 n. 6 (<HOLDING>). 3 . Congress has recently expressed a similar
holding that a paywhenpaid clause does not preclude a subcontractors recovery under the miller act payment bond because the federal legislation conditions payment of the subcontractor not on payment by the government to the contractor but rather on the passage of time from completion of the work or provision of materials holding that it was not essential to an action by a supplier on a payment bond under the miller act that a demand be made on the general contractor for payment  although there was evidence in the case from which it could be found that the materialman looked to the general contractor for payment  since the statute does not require a demand for payment but merely requires written notice of the claim holding that an agreement which required the submission of an affidavit of payment to subcontractors or lien waivers before payment was made by the general contractor was for the direct benefit of the subcontractors holding that a clause making payment by the owner an express condition precedent to payment by the general contractor to the subcontractor was enforceable holding that surety was liable to subcontractor on payment bond because payment bond applied to any claimant who among other things supplied materials that were reasonably required for use in the performance of the subcontract 