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Legal Landscape: Top News in the Mentor-Protégé Program, Bond Claims & DBE Fraud

Welcome to the third edition of Onvia’s Legal Landscape, a series designed to provide government contractors with a quick, but thorough, summary of important legal developments in government contracting and a plain-English explanation as to how these developments may affect contractors. In this issue, we discuss recent trends in federal, state and local government contracting. Contractors should keep in mind that state and local agencies often look to changes in federal regulations as a guide for future changes at their respective levels. Changes recently made in the federal arena are likely to trickle down to state and local governments soon.


1) The SBA Offers Some Specifics on the Expansion of the Mentor-Protégé Program

As many government contractors may know, in February 2015, the U.S. Small Business Administration (SBA) issued a proposed rule aimed at expanding its mentor-protégé program. The proposed regulations would implement changes introduced by the Small Business Jobs Act of 2010 and the National Defense Authorization Act of 2013, and would permit a wide array of small businesses to participate in the SBA’s mentor-protégé program. Currently, only 8(a) certified firms can take advantage of the many benefits offered SBA’s mentor-protégé program, including a broad exception to affiliation for mentor-protégé joint ventures.

While this was great news for many back in February 2015, it has been nine months since this proposed rule was issued and we have yet to see an interim, or a final, rule. The delay has many government contractors asking when the SBA is actually going to put these changes into effect. Well, we now have some idea: Sometime in the first quarter of 2016.

On October 27, 2015, the U.S. House of Representatives’ Committee on Small Business Subcommittee on Contracting and the Workforce, chaired by U.S. Representative Richard Hanna, held a hearing entitled “Maximizing Mentoring: How are the SBA and DoD Mentor-Protégé Programs Serving Small Businesses?” Based on the testimony given at the hearing, and the information compiled in the Subcommittee’s related memorandum, it appears that a final rule will be issued in the first quarter of fiscal year 2016, and that the agency hopes to launch a pilot program sometime in the summer of 2016.

Key takeaway for government contractors:

The expansion of the mentor-protégé could mean a lot more flexibility for small businesses. HUBZone, SDOVSB and WOSB/EDWOSB companies would have the ability to joint venture with larger mentors without the risk of affiliation. This, in turn, would make these small companies much more competitive.

2) The Importance of Complying with the Specific Requirements of Bond Claims

Ok, so this isn’t really a “new” legal development, per se. The requirements relating to bond claims is an issue that has been discussed among government contractors since, well, since bonds have been a requirement. However, while bond claims are often discussed, they are also commonly misunderstood. Many contractors do not fully understand their obligations concerning timing, notice, or procedure to perfect a bond claim. This is particularly true when it comes to performance bond claims against bonded subcontractors. In this context, contractors often fail to comply with their obligations and are adversely impacted. A recent Missouri case is just the latest example of this, and serves as a harsh reminder that the failure to comply with bond requirements can nullify an otherwise legitimate bond claim.

In that case, a plaintiff-general contractor, Curtiss-Manes-Schulte (CMS), subcontracted work to Balkenbush Mechanical, Inc. (BMI) on a renovation project located at Fort Leonard Wood, MO. Safeco Insurance Company of America (Safeco) provided the performance bond for BMI. As the project progressed, BMI fell significantly behind schedule. CMS informed Safeco, through a “Contract Bond Status Query” that BMI was not progressing satisfactorily, the contract was 9 months past due and liquidated damages would be assessed. However, CMS did not declare the subcontractor “in default,” a requirement under the bond. BMI ultimately abandoned the project, and then filed for bankruptcy protection. After completing BMI’s work itself and incurring significant additional costs, CMS made a claim against Safeco under BMI’s performance bond, citing BMI’s failure to perform. Because CMS never technically defaulted BMI, Safeco refused to pay CMS’ demand, asserting that CMS had failed to satisfy the bond requirements. CMS then sued Safeco.

In assessing CMS’ performance bond claim, the United States District Court for the Western District of Missouri noted that the performance bond specifically provided that the subcontractor had to be declared in default, and, further, that Safeco had to be notified of that default. Because CMS never formally defaulted BMI, and, in any case, never informed Safeco that BMI had been defaulted, the Court found that Safeco’s obligations under the bond were never triggered.

Key takeaway for government contractors:

Make sure you are aware of the specific terms of each and every bond that could affect your interests. Contractors tend to pay close attention to “upstream” bonds relating to payment but forget about how important the rules are when it comes to “downstream” performance bond claims. It is imperative that all government contractors understand the terms of all relevant bonds, and their obligations thereunder, as well as any federal, state or local statutory or regulatory requirements relating to those bonds. Otherwise, they risk forfeiting a perfectly legitimate claim. If you have any questions about the terms of a particular bond, or the applicable regulatory or statutory requirements, consult a legal professional.

3) Third Circuit Creates “Offset” Exception for Damages Relating to State DBE Fraud

In the last issue of Legal Landscape, we talked about the increased importance of the False Claims Act and the uptick in fraud actions by the Federal Government, as use of the FCA has expanded. As previously discussed, state and local governments have followed suit by aggressively prosecuting contractors for making false statements, or claims, of various types and kinds. As part this process, many local governments have increased the amount of monetary damages, and broadened the types of penalties, associated with fraud and false claims actions, including suspensions and debarments. Overall, there has been a marked trend over the past five years toward the draconian enforcement of fraud-related regulations and statutes, the expansion of liability, and the imposition of increasingly serious penalties.

A good example of the above is the Federal Government’s Presumed Loss Rule, introduced by the Small Business Jobs Act of 2010. The Presumed Loss Rule provides that, if a concern willfully misrepresents its size or status to receive the award of a federal contract, subcontract, grant or cooperative agreement, the loss to the government is presumed to be the total amount expended by the government under that contract, subcontract, grant or cooperative agreement. In other words, if you lie to the government about being small to get a contract, the damages assessed against you will be equal to the total amount of that contract. That’s a pretty stiff penalty, but it is entirely consistent with the trend toward escalating enforcement and prosecution.

One recent case may signal a slight shift in the other direction. In United States v. Nagle, the Third Circuit found that the damages assessed against a contractor found guilty of fraud on a state government contract had to be “offset” against the fair market value of the services provided under that contract. In Nagle, the co-owners of Schuylkill Products Inc. (SPI) and its wholly owned subsidiary, CDS Engineers, Inc. (CDS), engaged in fraud-related crimes in connection with PennDOT and SEPTA contracts. In order to take advantage of contracts with Disadvantaged Business Entity (DBE) participation requirements, SPI and CDS – both non-DBE entities – set up a “front” DBE subcontractor, Marikana. SPI and CDS “subcontracted” to Marikana, but, in reality, they performed all of the work on Marikana’s subcontracts. SPI and CDS paid Marikina a fixed fee for its participation, but otherwise kept the profits for themselves.

When this scheme was uncovered, the owners of SPI and CDS were charged with fraud. In analyzing the appropriate damage assessment against the owners, the U.S. District Court for the Middle District of Pennsylvania determined that the amount of loss each defendant was responsible for would be equal to the face value of the contracts that the DBE front company was awarded. Such an assessment was consistent with the Presumed Loss Rule outlined above.

However, on appeal, the Third Circuit disagreed with the lower court’s damage assessment. The appellate court held that, in a DBE fraud case, the amount of loss attributable to defendants should be calculated by taking the face value of the contracts and subtracting the fair market value of the services rendered. The court further clarified that “fair market value” can be calculated by the value of the materials supplied, the cost of the labor necessary to assemble the materials and the value of transporting and storing those materials. In other words, the damages assessed to a defendant for DBE fraud must be decreased to account for the fair value of services actually provided by that defendant.

Key takeaway for government contractors:

Nagle dealt with DBE fraud committed in connection with Pennsylvania state contracts, which were funded through the U.S. Department of Transportation. The Nagle decision was rendered by the Third Circuit, which means the case could be considered controlling in Pennsylvania, New Jersey and Delaware. It is not yet clear whether other jurisdictions will carve out similar exceptions, or whether the majority of other states will adhere to something more similar to the Federal Presumed Loss Rule. It is further unclear as to whether the exception in Nagle would apply if SPI or CDS had misrepresented their own DBE status, rather than arranging for a front DBE subcontractor. In any case, the damages associated with a potential fraud matter can be quite severe. It is important to understand the rules and make sure that you and your subcontractors are not engaging in any conduct that might constitute fraud.

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Major Points Of The Claim Process In Auto Dealer Surety Bonds Continued

In this installment of surety bonds we will continue to look at major points of the claim process in auto dealer surety bonds.


Only certain consumers are eligible to process a claim against the auto dealerships surety bond.

–          Consumer Purchaser:  Most of the claims that a consumer will make are related to the auto dealer’s failure to report the sale and not producing a title for the vehicle.  This creates a multitude of issues for the buyer.  Other claims involve the dealership not paying off the vehicle that was traded in, when the mileage on the odometer has been changed or the condition of the car was not reported and clearly becomes evident after the purchase.

–          The Seller of a Motor Vehicle:  A seller may file a claim if an auto dealership fails to pay for cars sold to the dealership or through the dealership.  This seller may be another car dealer, an individual, a consignor, a regional or national auto auction.

Be Prepared

Auto dealers should follow these basic steps when a claim is presented against them.
–          Auto dealers need to understand and follow the rules that are set by your state’s department of motor vehicles.  It is important to meet all of the terms within the contracts to avoid complications later on.

–          Auto dealers should always be honest.  They should ask the claimant for proof of their loss.

–          All communication should be documented.  All correspondence, statements and agreements should have proper documentation.

–          Auto dealerships should always be proactive in finding a solution to problems that have arisen before an official surety bond claim.

Look for assistance from the surety bond agency

When a claim is brought to the attention of the surety bond company all of the parties involved in the argument to explain their side of the story.  The guarantee that is offered by the surety bond company is that if they don’t find the claim to be legitimate they will not pay.  The opposite is true as well, if the evidence is found to be against the dealership the dealer will be obligated to pay the claim up to the bond’s penal sum.

Bonding company’s provide legal defense on your behalf; often leading to a winning verdict on your behalf.  It should be understood that if they end up paying the claim due to the dealerships negligence the legal fees plus the amount of the claim will need to be reimbursed.

Protect yourself and your dealership

Claims do arise against auto dealer surety bonds.  It is important to protect yourself.  Be sure that your dealership follows all industry regulations.  If you are honest in your dealings with customers you have nothing to be worried about.

Keep all licenses up to date, renew bonds on time and file all necessary paperwork diligently.  If a claim happens to arise you will easily be able to plead the case against the dealership without hurting business.

Construction Bonding Specialists, LLC are dedicated Surety Bond Professionals that are aligned with several Treasury Listed and AMBest Rated Surety markets which allows them to assist with virtually all Bid, Performance and Payment, Financial Guarantee and Supply bond needs.  Find out more information at

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Major Points Of The Claim Process In Auto Dealer Surety Bonds

To avoid confusion we will discuss some of the major points of the claim process in auto dealer surety bonds.

Surety bonds are not the same as an insurance policy.

A surety bond protects the consumer not the business.  The surety bond is an agreement that outlines an obligation of one of the parties, in this case the car dealer, to another, their customer, which is watched carefully by a third party, the surety company.  If there is a claim against the car dealer the surety bond company may need to pay the client based on the claim and then seek reimbursement from the dealership.  A car dealership that is bonded is financially obligated to pay back the surety if a claim is paid on your behalf.  No matter how long the dealership has been in business or how long it has been out of business, if a claim is levied against the dealership and the surety is paid the surety company will seek to get reimbursement on the paid claim from the dealership.

Eight of the most common bond claims that arise from used car dealerships.

–          Failure to account for the sale and/or supply a valid title as stated under the contract

–          Writing a check that does not clear or to not make a payment on a vehicle

–          Tampering with the automobiles odometer

–          Providing inaccurate or false information in regards to the cars past and current condition during the sale

–          Fraudulent activity in regards to the financing of the car

–          Selling vehicles that have been stolen

–          Failing to pay for the warranty that was purchased by the consumer

–          The inability to honor the written car warranty

In our next installment we will finish discussing the major points of the claim process in auto dealer surety bonds.

Construction Bonding Specialists, LLC are dedicated Surety Bond Professionals that are aligned with several Treasury Listed and AMBest Rated Surety markets which allows them to assist with virtually all Bid, Performance and Payment, Financial Guarantee and Supply bond needs.  Find out more information at

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Congress Tightens Surety Asset Rules With Eye on Fraud

The defense authorization also expands SBA-backed surety bonds

Tucked into the defense authorization passed by Congress Monday are little-noticed amendments that should eliminate much of the fraud that has characterized individual surety bonds and expand the Small Business Administration’s flexibility in backing bonds for small contractors.

The surety measure tightens up the rules for using individual sureties on federal projects by requiring the assets backing the bonds to be real and deposited into an account that is in the care of the federal government.

The measure also expands the SBA’s ability to back bonds under its guarantee program, from 70% to 90% of the loss paid by a participating surety, on a contract amount up to $6.5 million.

The amendments are contained in Section 874 of the National Defense Authorization Act, which President Obama is expected to sign. Major industry associations, including the Surety & Fidelity Association of America and the National Association of Surety Bond Producers, backed the measures.

NASBP, which has battled individual sureties in court and in legislatures, views the passage as a major victory for the association and the industry.

“We are confident now our five years of toil to curb individual surety abuses on federal construction contracts are paying off,” said Mark McCallum, NASBP’s chief executive.

Rep. Richard Hanna (R), a former contractor whose district is in central New York State, was a key sponsor.

ENR’s investigations of individual sureties in 2013 revealed extensive use of deceptive assets.

Original Source:

Richard Korman
November 12, 2015
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Carwash Owners Sue New York City Over New Surety Bond Rules

A group of carwash owners have filed a lawsuit against New York City charging a new law illegally favors unionized carwashes.

The Association of Car Wash Owners lawsuit centers on rules that require owners of nonunionized carwashes to post $150,000 surety bond before obtaining a license. Unionized operations pay only $30,000.

The association says the two-tiered system is illegal.

Association attorney Michael Cardozo tells The New York Times the rule gives those who have collective bargaining a competitive edge.

He says “governments can’t put their thumb on the scales of whether a company should unionize or not unionize.”

The union-supported Car Wash Campaign, which represents community groups, said the $150,000 bond is “designed to secure worker wages against wage theft, and to protect consumers and possible creditors.”

The city Law Department says it will review the merits of the complaint but believes the law serves to protect low-wage workers.

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Comparing Surety Bonds and Insurance Part Two

In our last installment we began comparing surety bonds and insurance.  Many people are under the misconception that because of the similarities between surety bonds and the fact that often insurance companies offer them that they too are a form of insurance.  This however is not true.  As we previously discussed surety bonds are an agreement between three parties as well as that with a surety bond a loss is not expected instead a guarantee in case an obligation is not met.  Insurance on the other hand is an agreement between two parties where a loss is expected.  At some point you expect an insurance policy will pay out whereas with a surety bond you don’t expect to ever have to receive a payout.

A company offering surety bonds expect to recover any losses occurred.  If the principal defaults on the contract and the surety bond have to pay the obligee the surety expects to get repaid from the principal.  The surety has loaned assets to the principal and therefore will seek reimbursement.  Insurance claims are never expected to be repaid.  In fact with an insurance policy a claim is expected.  The whole purpose of insurance is to cover any losses the insured has experienced.

When the premium is paid on a surety bond it is acting as a service charge for the bond by the principal.  In fact surety companies get to be incredibly selective when choosing companies that they agree to bond.  This is because bonds serve as a non-collateral loan unlike a car or mortgage payment.  A surety company asks for a fee anywhere from half a percent to three percent of the contract amount.  The fee will be dependent upon the financial strength of the principal.  The premium is usually paid on an annual basis.

This is different than insurance premiums in that the premium that is paid is to cover the expenses and losses that are expected to occur. An insurance policy is something that nearly everyone can be issued.  The premium that is paid will depend upon the risk of the person or people being insured.  The greater risk to the insurance company the higher the premium.

As previously stated, surety companies are incredibly careful when choosing companies that they bond.  Years of running a successful business, financial stability and a record of completing projects on time and within the projected budget allotted within the original contract.  Agents handing out surety bonds are trained to ensure they don’t make loans that will default.

Insurance agents however are a lot more flexible when it comes to writing insurance policies.  Insurance companies offer up a higher volume of business in order to make a profit as well as cover any losses experienced.  This allows agents to be flexible with whom they offer insurance policies to.  Although as an example, if a car owner is seeking insurance and they have been in multiple accidents they will pay a higher premium then a client who has not been involved in an accident or had a previous ticket.

There are key distinctions between surety bonds and insurance policies.  Although they function differently they both meet a need that protect someone from experiencing a loss.

Construction Bonding Specialists, LLC are dedicated Surety Bond Professionals that are aligned with several Treasury Listed and AMBest Rated Surety markets which allows them to assist with virtually all Bid, Performance and Payment, Financial Guarantee and Supply bond needs.  Find out more information at

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Comparing Surety Bonds and Insurance Part One

Most people assume that because surety bonds are offered through an insurance company that a surety bond is a type of insurance policy.  This however is untrue.  Even though surety bonds and insurance policies have a few insignificant likenesses they are not the same thing at all.  In this installment we will discuss the differences between surety bonds and insurance.

The first difference between surety bonds and insurance is the number of individuals involved in the agreement.  With a surety bond there is a three-party agreement that connects the bond issuer, who is known as the surety, with the second party, who is the principal, into a financial guarantee to the third party, who is known as the obligee.  The agreement states that principal fulfills the obligations set forth in the contract.  The principal relies on the monetary power of the surety in order to acquire a contract with the obligee.

The difference with insurance is that the agreement between two parties; the two parties being the insurance company and the insured.  This arrangement is in place to guarantee that if the insured has a loss or is damaged the insurance company agrees to pay an amount set forth in the original policy.

Another distinction between surety bonds and insurance is that losses are not to be expected under a surety bond.  The contracting company to which the bond is issued needs to be financially stout and secure to be eligible for bonding.  The surety company carries out a thorough background check into the contractor’s character, their credit worthiness, the talent and capability to finish a project as contracted.

It is also important that they meet the specific check points in place within the contract.  A surety bond is sought out because the contractor is asked to provide one because the project owner mandates it.   The surety bond amount decreases as certain check points, which are stated in the contract, are met.  Less surety is needed as the job gets closer to the agreed upon end.  As each stage is completed the contractor is required to carry less surety to meet their obligation to the project owner.

An insurance policy is purchased because a loss is eventually expected.  The insurance policy rates are always changing and need to be adjusted based on the law of averages, expenses and losses.  A perfect example is when purchasing car insurance.  The rates are high at first because the expense is greater to cover the amount owed on the car loan.  If the car is in an accident a large amount of money is needed to cover the expense of repair or to cover the payoff on the loan.  As time passes the amount owed becomes less and less, the expense to repair the car decreases and because of all of these factors the insurance policy costs decrease.

In our next installment we will look at more comparisons between surety bonds and insurance companies.  These two very different industries and products have qualities that are similar but they are indeed two very different things when side by side comparisons are completed.

Construction Bonding Specialists, LLC are dedicated Surety Bond Professionals that are aligned with several Treasury Listed and AMBest Rated Surety markets which allows them to assist with virtually all Bid, Performance and Payment, Financial Guarantee and Supply bond needs.  Find out more information at

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A brief look at common construction loan credit enhancements

As the competition for construction loan projects remains at unprecedented levels in much of the country, lenders are frequently being asked to waive, modify or re-visit their standard construction loan credit enhancement requirements. The following is a brief look at some of the more common credit enhancements required by lenders and the benefits and shortcomings of each.

Guarantees. Guarantees continue to be the most common credit enhancement for balance sheet lenders on small and medium-sized construction loans. Lenders generally obtain either a payment guaranty, a completion guaranty or some combination of the two from key principals of the developer.  Obtaining guarantees from developers with significant assets and liquidity is obviously ideal, however, obtaining guarantees from principals with limited financial resources can still be helpful as these principals are less likely to walk away from a project with the threat of the enforcement of a guaranty hanging over them.

Payment guarantees are best, but they may not always be available due to the competitive landscape for a particular project or developer. Completion guarantees, while helpful for the same “skin in the game” reason pointed out above, tend to be far less reliable credit enhancements for a lender.  Generally, courts will not require the guarantor on a completion guarantee to “specifically perform” the developer’s obligations under the loan and cause the completion of project. Instead, a lender will need to sue the completion guarantor for the damages the lender has incurred as a result of the project not being completed under the terms agreed to in the construction loan documents. Damages under a completion guarantee can be fairly difficult to prove and require expert witness testimony. The damages are subject to varying calculations based on competing appraisals presented by the lender and guarantor and oftentimes will be non-existent if the current value of the land and the partially-completed project are determined to exceed the outstanding balance of the loan.

Payment and Performance Bonds. Payment and Performance Bonds (P&P Bonds) are often a standard requirement for construction lenders, but, like guarantees, pose their own set of limitations. A P&P Bond is an insurance contract made by a surety company under which it insures that its “bonded” contractor will (1) complete a construction project under the terms agreed to by the contractor and the developer and (2) pay its subcontractors. A construction lender may become a beneficiary of a P&P Bond by being named by the surety company as a “co-obligee” pursuant to a dual-obligee rider attached to the P&P Bond.

While P&P Bonds can be very useful to construction lenders (especially in instances involving inexperienced or undercapitalized developers), they often can be difficult to obtain.  Not only do they drive up the cost of a project, P&P Bonds are generally only available to more established and well-capitalized general contractors. Even when available, P&P Bonds can be difficult to collect on as a result of shortened deadlines in which to assert claims and other standard limitations and restrictions contained in the bonds, resulting in protracted and expensive litigation to determine a construction lender’s actual coverage under the bonds.

Letters of Credit. Letters of Credit tend to be less common credit enhancements for a lender providing construction financing, but can serve as an attractive alternative when P&P Bonds are not a viable option. An irrevocable, standby letter of credit is the unconditional obligation of an issuing bank to, for a specified period of time, pay the beneficiary of the Letter of Credit (i.e., the construction lender) all or some portion of the face amount of the Letter of Credit upon the beneficiary’s demand and presentment of the Letter of Credit to the issuer. The terms of the loan agreement detail when the construction lender may draw upon the Letter of Credit – typically, an event of default under the loan or the failure of the borrower to renew the Letter of Credit prior to construction completion or loan repayment.

Unlike P&P Bonds and Guarantees, Letters of Credit provide, for the most part, more readily available access to cash for a construction lender and fewer obstacles to obtaining it.  Like P&P Bonds, however, Letters of Credit are expensive (even more so) and require that the applicant-developer either be well capitalized, provide collateral security to the issuer, or both.

Each of the above credit enhancements continues to play a significant role in construction financing.  Understanding the economics, benefits and limitations of each is a critical component to determining when and how each may be used to enhance the credit of a construction loan.

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Construction Bonds Help To Decrease Default

Nearly all public construction work that is completed is done so through private sector construction firms.  Jobs are bid on by private sector contractors.  An open competitive sealed bid system is used to determine who is awarded the work.  Many times the work is given to the contractor with the lowest, most comprehensive bid.  With the use of surety bonds the system works well.

A Bid Bond is used to keep flippant bidders from the bidding process.  They do this by promising that the chosen bidder will enter into the outlined contract as well as obtaining the required performance and payment bonds.  If the bidder with the lowest bid cannot honor the contract, the owner is protected.  The bid bond ensures the owner will be covered for up to the amount of the bid bond which is most often the difference between the lowest bid and the next highest bid.

A Performance Bond is an agreement that protects the contractor’s promise, contract.  It is there to ensure that the contract is carried out in agreement with the terms and conditions that were agreed upon, at a certain price and within a certain amount of time.

A Payment Bond shields specific employees, suppliers of materials and subcontractors from nonpayment.  The protection payment bonds provide is to claimants that have not been paid for their goods and services that they have supplied to the contracted project.

It is required, by law, that in most public construction projects that bid, performance and payment bonds are utilized.  These laws have been in place for so long that little thought is given to why they were enacted in the first place.  Contractors that are unable to acquire the bonds required complain that the law is unjust and unfair.  Note that the law is only required on most public construction projects not all construction projects which still allows such contractors to obtain jobs.  However, it is important that we understand why such laws were necessary requiring contractors to post bonds when performing public construction projects.

Before the laws were enacted the failure rate on public construction projects among private construction companies was high.  What would happen is that private contractors became bankrupt before they were able to finish the contracted services.  This left the government with half completed projects which tax payers were left to cover.  The additional costs coming from the contractor’s default added to a substantial hit on taxpayers.

With government property unable to be subjected to a lien many laborers, material suppliers and subcontractors were left without compensation if the services they performed were not paid for.  The government tried to use individuals as sureties on public construction projects.  This however also failed as many times the sureties themselves were unable to honor their financial obligations.  This chain of events led to the Heard Act.  The Heard Act authorizes the use of corporate surety bonds to secure privately performed federal construction contracts.  In 1935 the Miller Act replaced the Heard Act which is the current law that requires performance and payment bonds on federal construction projects.

Construction Bonding Specialists, LLC are dedicated Surety Bond Professionals that are aligned with several Treasury Listed and AMBest Rated Surety markets which allows them to assist with virtually all Bid, Performance and Payment, Financial Guarantee and Supply bond needs.  Find out more information at


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Requirements on Establishing a Contractor’s Bond Line

Bonding is a concept many of us are unfamiliar with. In this article, we will focus on how bonding affects financing. It is important to understand that bonding is not a type of insurance. The purpose of bonding is to guarantee projects are completed on time or as near to schedule as possible regardless of payment or performance. What the bond does is reassure the owner or general contractor that the company they hire can and will complete the obligation as stated in the contract. If the bond is in fact utilized, for whatever reason, the bonding company is guaranteed re-payment in the amount utilized.

In order for bonds to be obtained there are several requirements that need to be met. One such prerequisite is equity of ten percent or higher. There are several ways this can be accomplished. A company can prove that they have retained ten percent or more in earnings this year within the Stockholders Equity section on their balance sheet. If this has not occurred or cannot be shown due to previous losses or large shareholder distributions a company can inject their balance sheet with equity capital. This will show on your balance sheet in the Contributed Capital section. Check with your accountant and attorney to ensure that this is documented properly and that conversions are done properly.

Another condition that bond companies can ask to see is five to ten percent revenue in a line of credit. This is in place to ensure that if issues arise such as cost overruns, slow payment by the general contractor or owner or disputes on work performed. The surety company can be confident that you there are available funds above the operational cash flow. The line of credit will allow work to continue as stated within the contract which reduces the chance that any use of the bond is necessary.

A line of credit against bonded receivables will never be provided by a bank or other type of financial institution. Bond receivables are funds received from contracts that require bonds. A bank places a lien on a company’s funds, receivables, as collateral in the event of default. Simply a lien can’t be placed on funds that are coming in from current contracts that require bonds. Companies work around this by not having one hundred percent bonded contracts. These non-bonded funds offer security. Companies also use equipment, property or other types of collateral.

Construction bonding as well as bonding in general is needed to reduce the risks associated with projects. Bonding affects financing and helps to ensure projects keep on pace no matter what situations arise with performance or payment.

Construction Bonding Specialists, LLC are dedicated Surety Bond Professionals working with new and experienced contractors to find the most satisfactory bond solutions. CBS is aligned with several Treasury Listed and AMBest Rated Surety markets which allows them to assist with virtually all Bid, Performance and Payment, Financial Guarantee and Supply bond needs. Find out more information at

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