Month: November 2015

Secrets Of Bonding #114: Offer a Concrete Solution?

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This Concrete Subcontractor has a big problem.  How would you solve it?

The Facts

  • The bond applicant, we will call ‘Subby,’ is a highly experienced subcontractor who performed concrete work on a school job.
  • Subby was not required to give a Performance & Payment Bond to the GC.
  • The GC, “Gigunda Const.,” has given a P&P bond to the school district.
  • The GC claims that the concrete Subby installed has failed a critical strength test. As a result, Gigunda is demanding a 2 year maintenance bond to cover potential defects.
  • Subby has disputed this claim and feels they are in compliance with the contract.
  • Since the requested maintenance bond will run to the GC and not the school district, it appears the issue must be resolved from within the subcontract terms (not directly with the school district).
  • Subby has an ongoing relationship with a major bonding company: “Wonderful Surety.”
  • Wonderful Surety has refused to provide the maintenance bond.
  • Subby’s agent called us for help. Is it possible we may support it?

Consider the Issues

  1. The work is not covered by a performance bond.
  2. Subby’s current surety has refused to support them.
  3. If Subby ignores the problem, the GC may ultimately have a performance claim on their bond. The GC, and their surety, are responsible for the entire project, including the subcontracted work.
  4. If Subby ignores the problem, the GC may have to fix it – and will back charge them for the costs.
  5. If Subby doesn’t provide the maintenance bond, the GC will withhold the remaining money in their sub contract.
  6. Gigunda’s subcontract may have imposed the GC contract conditions automatically on to the subs (possibly including concrete strength requirements).
  7. It would be normal for the subcontract to state that Subby must protect Gigunda from claims arising from their work.concrete_truck

Possible Solutions

Which One Do You Like Best?

  1. Subby can ask a new surety to provide the maintenance bond.
  2. Subby can rip out the questionable work at their own expense and re-do it to Gigunda’s satisfaction.
  3. Subby can review the subcontract to determine what strength requirements were indicated, and if Subby is actually in violation.
  4. Gigunda can press their surety to issue the maintenance bond. (Although this would be unlikley if Gigunda is the beneficiary.)
  5. Subby could refuse to get the maintenance bond or replace the work (do nothing.)
  6. Subby could ask Gigunda for a contract amendment providing additional money to rip out / replace the questionable work.
  7. Subby could let Gigunda hold money for 2 years in lieu of the bond (the entire bond amount).

So you chose: #_____

 

Conclusion

The step we recommend is #3, “review the subcontract requirements.”

Subby is an experienced concrete company that is convinced their work product is correct. They are not aware of the strength requirements that are the basis of this dispute – but a careful legal review is needed.  

Subby should also ask the GC to cite where these strength requirements appear in the subcontract.

If the work is in violation of the subcontract, Subby will have to choose between paying to replace it now, or face the difficult task of obtaining the maintenance bond. It is possible that no surety will support this without requiring substantial collateral, or maybe even full collateral.  

Pretty tough, but the bond would offer some important advantages even if full collateral is required:

  1. Subby could totally avoid the cost of replacing the work if the concrete performs successfully. Only time will tell, and filing the bond gives them that time.
  2. The bond is better for Subby than letting Gigunda hold funds. If Gigunda concludes the concrete has failed during the 2 years, they will have to go through the surety’s claim department for recovery.  That’s better than just letting the GC use their money if they want. This type of advantage always exists for bond applicants when choosing between a surety bond or putting up cash directly with an obligee / beneficiary.

FIA Surety is a NJ based bonding company (carrier) that has specialized in Site, Subdivision, Bid and Performance Bonds since 1979 – we’re good at it!  Call us with your next one.

Steve Golia, Marketing Mgr.: 856-304-7348

First Indemnity of America Ins. Co.

Secrets of Bonding #113: Your 1st Bond – Choose Door #1 or 2?

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Every week we get inquiries regarding clients who need their very first bond.  This is a great question and one we love to answer.  It is particularly gratifying to give a new client their first bond – of many!

There are different paths forward depending on the circumstances.  Each door has different aspects.  Let’s go over them.

Door Number 1:open_door3

Use this door for contracts (federal and all others) up to about $500,000.  This is the fastest / easiest program with the first bond approval coming over in about 1 day!  Only a one page application is needed – no financial statements.  The program is predicated on the work being simple and normal for the contractor, and personal credit reports of owners and spouses must be acceptable.

This door is perfect for companies that are not pursuing contracts in excess of $500,000.  Other applicants can also use it as a quick way to start while completing the application process for higher amounts.

As with all the doors, there is no charge to get pre-qualified for bonding!

Door Number 2:

This is for contracts from $500,000-7500,000.  Similar to Door Number 1, but now add “in house” company financial statements and/or tax returns. A longer questionnaire is needed, and supporting documents such as resumes, references and personal financial statements may be required.

Door Number 3:open_door1

For contracts in the $750,000-1,000,000 range, plan on a CPA prepared Compilation financial statement.  This is the lowest level (least expensive) CPA financial report.  It is needed once per year.

Door Number 4:

Contracts over $1-2 million may require an annual CPA Review financial statement.

Number 5 (fancy!):open_door5

For large contracts in excess of $10 million, a CPA Audit may be required by the underwriters.

It makes sense that as the obligations become larger, higher quality, more complete information is needed.

Is there some flexibility?  Sure!  It may not seem so, but underwriters are motivated to be flexible and find ways to write the business.  After all, no bonds = no revenues.  They must find ways to say yes.

FIA Surety is a NJ based bonding company (carrier) that has specialized in Site, Subdivision, Bid and Performance Bonds since 1979 – we’re good at it!  Call us with your next one.

Steve Golia, AVP: 856-304-7348

First Indemnity of America Ins. Co.

Secrets of Bonding #112: Net Worth – Feed the Pig!

Steve GoliaLeave a comment

When it comes to Bid and Performance Bonds, you may have heard that Working Capital is a deciding factor.  If the calculated amount on the applicant’s financial statement is insufficient, the surety underwriter will decline the bond.pig3

So what is Net Worth (NW) and how important is it for bonding purposes?  Let’s start with a brief description of what this is and where you find it in the financial reporting.  Funny thing about net worth: It is a measure of the company’s financial strength, but it is listed among the company’s debts! Hmmm…

Where Do You Find It?

NW aka “Stockholders Equity” is listed on the company Balance Sheet, which is divided into assets and liabilities (debts). 

The assets include cash in the bank, accounts receivable, buildings, equipment, etc.  The liabilities are accounts payable, bank and other loans, other debts, and (in a corporation) the Stockholders Equity. The NW or Stockholders Equity section appears at the bottom of the Liabilities column, below “Total Liabilities.”

What Is It?

Stockholders Equity shows the funds put in (loaned to) the firm by the stockholders such as Capital Stock, plus the portion of all past profits allowed to accumulate in the company (called Retained Earnings). These comprise the corporation’s NW.

Why is it a liability?  NW is a liability because it is owned by the stockholders, not the corporation itself. If the company shuts down and is liquidated, the NW goes the stockholders and the corp reverts to its original financial position: $0.

pig2Think of NW as a piggy bank that holds the company’s long-term, ultimate financial reserves.

Now let’s discuss what this has to do with surety bonds. Bond underwriters always evaluate the Working Capital amount.  And many place equal importance on the NW.  While it is true that a company can show good Working Capital but have no NW, is a lack of NW really a concern?  You may assume it is difficult to get a bank loan with no NW, the same applies to bonds. 

Surety underwriters are concerned about a company’s staying power if they don’t have financial reserves to help survive tough times.  When companies fail, there are bond claims – exactly what the underwriters don’t want!

Analysts will wonder “Why is there no NW in this company?” especially if it is not a new entity.  Has there been a lack of profitability, a failure of management, and therefore no profits to accumulate?

Our “Secrets” articles are usually inspired by the file activity we enjoy each week with our valued agents. Such was the case this week.  Here is the actual info from a financial statement that was the seed for this article:  “(  )” indicates a negative number.

STATEMENT OF EQUITY, September 30, 2015

Balance at January 1, 2015               $            0
Plus: Member’s contributions               33,616
Less: Net loss                                          (50,597)
Less Member’s distributions              (131,060)
Balance at September 30, 2015       $(148,041)

This report is describing the changes in one part of the NW.  They started with nothing, put in $33 thousand, lost $50 thousand this year, and on top of that, took out everything they put in and more!  What are they thinking?!

Q. If you are the bond underwriter contemplating the likelihood of this company’s survival, what might you conclude?

  1. Company management is weak?
  2. Their ability to continue may be doubtful?
  3. Instead of bolstering the company with additional funds, the owners are stripping it of assets – maybe with the intention of declaring bankruptcy?

A. All of the above!

Our conclusion is that Net Worth IS important. In bonding, the company is the applicant.  Its financial position indicates if management has achieved profitability and accumulated a war chest of funds to provide a strong foundation.  Without it, future credit may be unavailable, and the company may falter when facing difficulties.

NW is one of the critical factors underwriters, and all credit analysts, review.  It should be nurtured, protected and preserved.

pig1

FIA Surety is a NJ based bonding company (carrier) that has specialized in Site, Subdivision, Bid and Performance Bonds since 1979 – we’re good at it!  Call us with your next one.

Steve Golia, Marketing Mgr.: 856-304-7348

First Indemnity of America Ins. Co.