Remember how much fun it was to have a substitute teacher? Well, this is a little less exciting…
In Secret #49 we talked about bidding with a check. This is a related topic. Substitute bid bonds are an odd part of what we do as surety professionals. Here’s how you may run into one.
It is common for project specifications to offer a number of methods to provide the bid security that accompanies a contractors project proposal. The options may include a check made out to the obligee, or a bid bond.
A substitute bid bond may be issued after bid security has already been given with the contractor’s proposal. This bid bond will replace, or be substituted for the existing security – thus the name.
This may arise when the contractor has no surety at the time of the bid. They bid with a check. Now, with a surety in place, their first request is “How about helping us get our cash back? It’s tied up with that bid.”
What a great way to start off by helping the new client. However, sureties are not always in favor of issuing these, and some refuse to do so under any circumstances. Why?!
1. Bid Spread: In this case, the contractor is the low bidder, but they are too low. (Read Secret #16 to learn about unacceptable bid spreads.) The contractor may be in line for the project, but the surety does not want to issue the performance bond (aka final bond). If the bonding company provides the substitute bid bond, they become obligated to issue the final bond or face a bid bond claim (two bad options!) “Sorry, we are not able to provide a substitute bid bond for that project.”
The fallout is that the contractor may blame the surety when they lose their bid security for failing to deliver the final bond. They will also lose the expected income from the project – pretty ugly.
2. Final Bond Optional: The specs may indicate that a Performance & Payment bond is not mandatory. It is optional at the obligee’s discretion. This amounts to adverse selection against the surety. If the obligee thinks the contractor looks capable: No bond. If there is some doubt about their ability to perform or the adequacy of the price, better pass the risk over to the bonding company.
For this reason, substitute bid bonds may be declined if a final bond is not mandatory. Remember, final bonds are where sureties make their money. Bid bonds are usually free. The contractor will not lose anything as a result of the refusal to issue the substitute and they are already eligible to win the contract.
3. Not Low Bidder: This is similar to Number 2. Here the contractor is second or third bidder. The common practice is for obligees to hold the bid security of the second and third bidders in case they need to give them the project (maybe the low bidder can’t get their final bond issued?) The bid checks could be held for months!
From the surety’s perspective there is no question about the adequacy of the second or third bidder’s number. This may be a well-priced contract. The problem is that they are unlikely to issue a final bond. (Projects are rarely awarded to the second or third bidders.) This has even less chance of making money for them than a normal bid bond request.
To the contractor, a substitute bid bond may seem like a great idea. For the surety, the only desirable situation is when their client is low bidder with an acceptable bid spread and a mandatory final bond. Absent that, don’t be surprised if the surety only wants to get involved after the contract award takes place and the final bond is needed.
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