performance bonds

Secrets of Bonding #129: What It Takes To Get a $1 Million Bond

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Here is a common fallacy held by observers of the surety bonding industry: whellbarrow money

How much cash do you need to get a $1 million bond?  The answer is NOT $1,000,000. Surprisingly, you only need a fraction of the $1 million, but you do need other elements as well.  Let’s dive in!

Our readers may be familiar with the 3 Cs of Surety Bond Underwriting: Coercion, Corruption, Cowardice.  Actually they are Character, Capacity and Capital. These describe areas of analysis that are important to the bond decision-makers.  Cash falls under the Capital heading.  Other factors are also important.

  • Character includes the applicant’s credit rating and operating history. Bill paying habits are reviewed along with references from suppliers and lenders. Character evaluates if the applicant is likely to honor their obligations under the contract and bond.
  • Capacity cover the skills of key people, company experience overall, plant, equipment and other factors.
  • Capital includes all financial resources, including Cash.

The Magic Number

Stacks of US currency

There is no magic number. When underwriters review the company financial statement they do look at the cash position.  In addition, they evaluate the Working Capital, which is the sum of cash, accounts receivable, inventory, and other items, minus Current Liabilities.  Working Capital consists of elements that will become cash during the current fiscal period (the accounting year).  For example, a dollar of “good” receivables is the same as cash to credit analysts.  So to this extent, less pure cash is needed.

Financing New Projects

One of the reasons contractors need Working Capital (WC) is to finance the start of new projects.  They must mobilize the job site, pay laborers and purchase materials – all out of their pocket initially.  As the project proceeds, it starts to fund itself. 

For the $1 million contract with the $1 million bond, would it take $1 million to finance the start?  No, it would just be a percentage of the $1 million.

The Two-Part Answer

Many bundle of US 100 dollars bank notes

This brings us to the answer. Cash is one component of Working Capital, and underwriters expect WC to equal about 10% of the bonded exposure. This could mean that the $1 million bond requires less than $100,000 cash when combined with other working capital components. However, cash alone doesn’t get bonds approved.

All of the 3 Cs are equally important. Cash is not the sole basis of the decision.  A cash rich company with bad credit or weak prior experience will still be declined.  Cash cannot overcome these deficiencies.

FIA Surety is a NJ based bonding company (carrier) that has specialized in Site, Subdivision and Contract Surety 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 # 128: The Unexpected Cause of Contractor Failure

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Why do construction companies go out of business? What reasons have you heard for companies shutting down?

  • “The economy is terrible.”
  • “There’s no work.”
  • “Too many bidders. You can’t get a decent profit and I won’t work for nothing.”

All these explanations amount to the same thing: A lack of projects resulting in low revenues, low profits and no cash flow. The situation seems obvious. When there isn’t enough work available, many contractors are forced to shut down. So is this THE BIG cause of contractor failure? Surprisingly,  no!

closed1Many construction companies fail because they have too much work. Is it possible that too much of a good thing spells disaster? We’ve all heard the stories about lottery winners who say the money ruined their lives. Suddenly they’re rich, but they weren’t ready for it. The very thing they wanted more of, turned out to be their undoing.

For construction companies, the mission is to acquire and perform profitable contracts. A tremendous amount of effort is spent in the pursuit of new work. So what can go wrong to make the volume a disadvantage, causing the demise of the enterprise?

Capital

One answer is the Lack of Sufficient Capital – both the money kind and people. As companies grow, more liquid resources (cash) are needed to finance the start of new projects and solve problems. Human resources are needed such as field supervision and back office support. Companies can fail when the office staff is unable to keep pace with the paperwork. Billings don’t go out on time, receivables are not collected, cash flow is choked off.  It is management’s responsibility to anticipate these needs and prevent the deficiencies.

Field production can suffer when the supervisory staff is inadequate. This leads to reduced gross and net profits, less available cash, the beginning of a downward spiral.

Managmentclosed2

Consider the Corner Office: Poor leadership, lack of business knowledge and inadequate financial management can be catastrophic. In addition to setting the tone and establishing the company mission, the bosses must have the technical knowledge a larger company requires.  They must be sophisticated financial managers to control resources and garner needed support from financial institutions. The successful manager of a mid-sized business is not necessarily equipped to run a large company.

New Geographic Territory

Management’s pursuit of growth can lead the company into new geographic markets (the grass is always greener.)  This may present unexpected challenges and obstacles including local union resistance, unfamiliar underground conditions, logistics problems, reduced labor productivity rates, adverse weather conditions, etc.  On the east coast (I’m a New Yorker), bond underwriters have long shared stories of NY contractors who ventured to Florida and got their butts kicked…  They say “Florida beaches are littered with the bones of NY contractors.”

Adding New Type Work

Some companies have strayed from their normal type of work in the pursuit of added revenues. They get in trouble trying to enter and compete as newcomers to the field. The company may lack the expertise (estimating, field management) for the new type work. How can you be successful in a competitive bidding environment when going against companies already entrenched in the market?  Do you take work cheap and hope for the best? “We’re losing money but we’ll make it up on volume.”

Our point of view is based on surety bond underwriting. All these issues are well known to bonding companies. When their construction clients want dramatic growth, new types of contracts or transition to a new geographic market, that’s a red flag. They come back with the hard question, “Tell us: Why this is a good idea?”closed3

Contractors may feel that sureties hold them back. Maybe they are too conservative. Do they really want contractors to grow? They think they know better than the contractor?

Actually, the surety and the contractor succeed or fail together. Having seen good clients encounter unexpected problems, underwriters know firsthand how quickly things can unravel.

Writing more bonds and bigger bonds is how bonding companies grow. Certainly, construction companies must grow to survive, and being bigger can be better.  But uncontrolled growth is the major cause of contractor failure that sureties, and contractors, must avoid.

FIA Surety is a NJ based bonding company (carrier) that has specialized in Site, Subdivision and Contract Surety 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.

Not available in all states including Idaho.

Secrets of Bonding #127: “The Call”

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A couple of times every week we talk to a new contractor who wants to get their bond account set up for the first time.  Here’s how it always goes:

  • Contractor: We want to go after bonded projects but we’ve never had bonds before.  What’s involved?
  • Surety: OK Hi! Who am I speaking to?
  • Contractor: I’m Humphrey.
  • Surety: All right Humphrey, can we start by asking you a few questions?  What is the size and nature of the work you intend to pursue?TelefMan-07

Scenario #1 (Pursuing contracts up to $500,000)

  • Contractor: We have performed residential and light commercial work.  We want to go after general construction contracts up to about $250,000.
  • Surety: Great! Tell me the ownership and structure of your company.
  • Contractor: The company is an LLC owned by me and my partner, Bogart.
  • Surety: Are you married?
  • Contractor: Yes, but not to each other.
  • Surety: We have a very easy program that may be a perfect starting point for you.  To be eligible, the owners and spouses must have good personal credit reports. Are the reports favorable?
  • Contractor: Yes.
  • Surety: There are some other criteria.  For example, the program cannot be used for long-term contracts or difficult / unique construction – needs to be plain vanilla.  The good thing is that no financial statements or other documentation is required, only a simple, short app. If this program fits your needs, you’ll never find anything easier or faster! Give me your email address and we’ll send you the FASTAPP.  We can probably get you pre-qualified within 24 hours!

Scenario #2 (Pursuing contracts in excess of $500,000, or for applicants with low credit scores)

  • Surety: We find that most contractors are able to qualify for bonding if their account is developed properly.  That’s where our expertise (since 1979!)  comes into play.
  • Contractor: What info will be needed?
  • Surety:  Getting approved for bonding is like applying for a bank loan. The same kind of financial and background info is needed.  Your relationship with the surety is similar to banking and you promise to protect the surety from loss, just like signing a promissory note with a lender.  That’s why surety bonds are not insurance policies.
  • Contractor: OK what’s the next step and how much does it cost?
  • Surety: We don’t charge for setting up your account!  We’ll send you an email with a list of items that are needed initially.  Gather as much as you can and send over so we can get started.  The process normally takes a week or two.  You don’t pay until you win a contract and need a performance bond.

Conclusion

Have we oversimplified the process? Actually, no.  It is easier than people assume to get their bond account arranged – when you know the ropes.  That’s our niche.  We don’t pretend to be good at everything, but we are experts at this!

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

Steve Golia: 856-304-7348

First Indemnity of America Ins. Co.

Secrets of Bonding #126: Surety Bonds in the Bizarro World

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There have been 24 movies about Superman, but I loved the original TV series starring George Reeves (the real Superman). Even before that, there were Superman comic books published by DC Comics.

BizarroThe character, “Bizarro #1,” first appeared in 1958 – a mirror image of Superman but from a world where everything was opposite from that of humans. That was over 50 years ago, but strangely, there is a little piece of Bizarro World that still survives today. It is alive in our surety rate system. See if you agree…

Example #1

A contractor won a $1 million contract. The specification calls for a 50% performance bond: $500,000. The surety’s maximum exposure is $500,000.

Bizarro Fact: The bond rate is based on the contract amount, the full $1 million!

Example #2

Sureties often issue a Performance and Payment Bond in a single combined instrument that states the bond amount once (the penal sum). However, if required, they will issue two separate instruments, one Performance and the other Payment, each with it’s own penal sum (double the amount in the combined bond form.)

Bizarro Fact: When required to issue this double bond amount, the bond premium remains the same as for the combined bond form!

Example #3

The contractor has already started the project. Now it has been verified that 50% of the work is completed and accepted by the project owner. It is confirmed that all related bills have been paid. It is apparent that 50% of the exposure has been eliminated.

Bizarro Fact: The bond costs the same as if it had been issued at the start of the work. There is no reduction or recognition for the portion of the exposure that has been eliminated.

Example #4

The contractor has negotiated a $1 million contract. Now the project owner has indicated that a P&P bond must be provided. The surety states that the cost of the bond will be 2% of the contract amount. Is the cost 2% of $1 million ($20,000)?

Bizarro Fact: No! The correct calculation is 2% of $1,020,000 or $20,400. The bond premium is calculated on itself, even though it cannot be classified as part of the contract exposure.

There you have it: The upside-down world we actually live in. Naturally there are justifications for all the procedures sureties use, but still, they are Bizarro!

FIA Surety is a NJ based bonding company (carrier) that has specialized in Site, Subdivision and Contract Surety 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 #122: Don’t Sign That Lien Release!

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WAIVER OF LIEN BY CONTRACTOR, SUBCONTRACTOR(S) AND SUPPLIER

We, the undersigned, acknowledge receipt of the amounts stated below as full payment for all labor, professional services, materials, or equipment furnished for use on or about the property of…”

In construction, lien releases are common. Project owners expect their general contractor to execute them. GCs demand them from their subcontractors and suppliers. They are part of the routine. If you want to get paid, you sign it. But when should you not sign it? Let’s look at what a lien release does, and when you should be cautious about executing.

The Purpose of Lien Releases
Typically, a lien release is required in connection with a monetary payment. It comes up in any of these situations:

  • Monthly payment made from project owner to the general contractor
  • Monthly payment from GC to a sub or suppliers
  • Final contract payments to any of these

The lien release enables the accounting to transition from one billing cycle to the next. It is a form of receipt that protects the Payor by acknowleging that the Payee has received funds – they relinquish the right to claim they were not paid.

danger-aheadNormally, when contractors and suppliers are unpaid, they can file a lien (a security interest) against the title of the physical property. With such a lien in place, the property cannot be sold.  The lien release / waiver gives up the right to file such a lien and possibly other legal remedies as well.

Lien releases come in two basic flavors, and it is very important to recognize the difference between them.

The Good One: Conditional

“THIS DOCUMENT WAIVES THE CLAIMANT’S LIEN, STOP PAYMENT NOTICE, AND PAYMENT BOND RIGHTS EFFECTIVE ON RECEIPT OF PAYMENT. A PERSON SHOULD NOT RELY ON THIS DOCUMENT UNLESS SATISFIED THAT THE CLAIMANT HAS RECEIVED PAYMENT.”

A release / waiver is Conditional if it waives rights once a condition (usually the receipt of payment) occurs. An example of conditional language is:

“Upon the receipt of $____, Subcontractor hereby waives and releases its lien and bond rights for labor and materials through _________ (date).”

Unless the waiver states otherwise, the conditional waiver is not effective until the condition, such as payment, occurs.

Also note, this wording includes a condition regarding time which protects the claimant’s lien rights arising in the next billing period.

The Bad One: Unconditionalcaution-proceed-carefully-md

“THIS DOCUMENT WAIVES AND RELEASES LIEN, STOP PAYMENT NOTICE, AND PAYMENT BOND RIGHTS UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN PAID. IF YOU HAVE NOT BEEN PAID, USE A CONDITIONAL WAIVER AND RELEASE FORM.”

Actually it is only bad if the claimant has not yet been paid. Then it would be inadvisable to provide an unconditional release. The claimant will have no recourse if they do not receive their payment, and they will also relinquish their ability to claim against the Payment Bond.

Conclusion
The Conditional Lien Release includes conditions and wording that protects the claimant’s interests.

The Unconditional Release can be detrimental if executed unintentionally or under inappropriate circumstances.

FIA Surety is a NJ based bonding company (carrier) that has specialized in Site, Subdivision and Contract Surety 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 #121: Are Court Bonds Like Fruit?

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produce_manMostly we issue site, subdivision and contract surety bonds (Performance & Payment).  However, we are also an important provider of Court and Probate bonds.  We issued a number of interesting court bonds recently so here is some info on this subject.

What Are Court Bonds Are Why Are They Needed?

Generally, court bonds serve three purposes.

  1. They provide required protection for the other party in the litigation (opposite the bond applicant)
  2. They guarantee the payment of related court costs
  3. The court likes them

An Injunction Bond is a good example.  In these legal actions one party wants to limit or prevent the actions of another.  An insurance agency may request an injunction to prevent a former salesman from soliciting their clients.  The court requires the plaintiff (insurance agency) to provide a bond for the protection of the defendant (salesman) in the event it is found that (s)he has been wrongfully restrained.

A Replevin Bond is similar.  These are required when the plaintiff (a bank) wants to seize an asset (your private jet) for failure to pay your finance charges.  The bond will protect you if it is later found they wrongfully seized “Wings Over Yonkers.”  See how these work?  In different situations the bonds provide the same type of function.  The name of the bond identifies the underlying legal action.

Why Do Courts Like Them?

You may think “what’s not to like?!” That’s true. But the court may require a surety bond for a practical reason.  If the litigation involves a financial matter, they could require that an escrow deposit be placed with the court for the benefit of the other party. They would hold this money until the case is decided.

This works, but is not convenient.  Where will the funds be held?  Who is responsible for their safekeeping?  Will there be periodic accounting if the case runs for years?  Who pays the expenses associated with this?  What if the money is misplaced or stolen? 

Compare this to a surety bond: Get the bond, throw it in the folder. Done!

cherriesEven though the court may have the option to take cash in lieu of bond, they may demand the issuance of a surety bond simply for its convenience.

Other Court Bonds

When a money judgment is rendered, the defendant may want the matter heard by the Appellant Court. Let’s say Maynard sued Dobie for money and wins a $10,000 judgment.  Maynard figures “Ok here comes 10 big ones!”  However, Dobie wants to dispute the decision so now Maynard has to wait.

In order to bring the Appeal, Dobie must obtain an Appeal Bond which protects the interests of the court and guarantees prompt payment if Dobie loses again.  To get this bond, he’ll have to give his personal financial statement, his indemnity, and put up maybe $11,000 for the surety to hold.  Oh, and pay the bond premium!  Why is all this necessary?

Bond underwriters know that most defendants lose at the Appellate level.  They also know that the court will simply claim on the bond to pay off the judgement.  This means that underwriters expect full penalty claims on defendant’s appeal bonds – which is why they normally require full collateral for the judgment amount plus interest and expenses.nanners

Conclusion

Hopefully it is apparent that there is a thread of similarity between these different types of court bonds.  This can make it easier to understand them when tey are needed.

Oh, so why are court bonds like fruit?  Because they have appeal!

FIA Surety is a NJ based bonding company (carrier) that has specialized in Site, Subdivision and Contract Surety 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 #119: Lien On Me

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“It ain’t what you don’t know that gets you into trouble.  It’s what you know for sure that just ain’t so.”  A famous quote by…?

Let’s go over what you need to know about construction liens.  They can have a big impact on construction contracts and companies.            Click for mood music!

A Mechanic’s Lien is filed when a subcontractor or supplier on a construction project fails to be paid. The lien is a form of claim filed against the project itself. For example, the unpaid mason (subcontractor) files a claim against the building owner. “My bricks and labor are in that façade. I can’t take them back now, but assert that the general contractor has failed to pay me!”

Liens are used on non-governmental projects. Typically, claimants are prohibited from liening a public building – which is where Payment Bonds come in. Issued by surety companies, the payment bond is a resource to protect suppliers of labor and material from non-payment.

So far that’s all pretty straight forward. On private contracts unpaid subs and suppliers can file a lien. On government jobs they make a claim on the payment bond instead.

Here are some implications worth knowing.

Release of Lien

The lien can be released, or “bonded off,” by the filing of a (you guessed it) Release of Lien Bond. This removes the lien from the property in question, which is beneficial for the project owner, while still providing financial protection for the plaintiff (unpaid sub or supplier.) The dispute is still unresolved, but the plaintiffs security shifts from the physical project to the surety bond.

A release of lien bond is not easy to obtain. But if a payment bond was issued, that surety has motivation to prevent a payment bond claim, and issuing the lien release bond could do so.

When the lien release bond is filed, it takes some pressure off the defendant (general contractor). You can assume the unpaid mason hopes the lien will cause the owner (who is the recipient of the lien) to force the GC to respond. When the lien is bonded off, that effect disappears from the project owner – but not the surety.

Stop Notices

California, Mississippi, Arizona, Alaska and Washington use a slightly different procedure. On governmental projects a Stop Notice is filed which freezes a portion of the project funds to protect the claimant. This forces action on the part of the GC, or they can file a Release of Stop Notice bond to keep the project funds flowing while dealing with the dispute.

Understand the Difference

Mechanic’s Liens are filed against the project owner.  The claim attaches to the real property and is recorded against the property title – which therefore restricts the owner’s ability to dispose of the property.  

With a lien, the claimant may be paid regardless of whether the owner paid the GC.  In fact, the owner may have to pay twice: First to the GC then again to the sub / vendor claimant, to remove the lien and clear the property title.

Stop Notices “trap” contract funds, assuming there are funds to trap.

If the claimant files a Stop Notice after the funds have been disbursed, it is useless. 

Other basic differences:

  • Unlike a lien, the stop notice does not give the debt any security.
  • The stop notice is sent to the relevant parties, but it is not legally recorded such as a lien filed against the property title.  The claim is inherently less official and is sometimes even ignored because of it’s less formal appearance.
  • Unlike a Mechanics Lien, the Stop Notice can affect the entire project because it freezes a portion of the contract funds – which the GC may need in order to continue working.

NOTICE: The author is not an attorney and is not giving legal advice.  This article is for entertainment only.  Gimme a break!

mark-twain

FIA Surety is a NJ based bonding company (carrier) that has specialized in Site, Subdivision and Contract Surety 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 #116: How NOT To Handle Bid Bonds

Steve Golia1 Comment

Just like everything else, there is a right way and a wrong way when it comes to bid bonds.  You may be happy to learn from your mistakes, but these lessons can be costly.  Messing up a bid bond can result in the loss of a lucrative contract.  It can cause the demise of your bonding relationship, could become the basis of a lawsuit, or merely make you look bad in front of your boss.  In any event, it’s better to learn the easy way, so…  

There are three things to remember when it comes to bid bonds:

  1. Underwriters view the bid bond as the first link in a chain of events that hopefully will result in the issuance of a performance bond. Therefore, the decision to provide it is predicated on the surety’s ability to support the eventual Performance & Payment bond that may result.  The decision is based on the potential dollar value of the contract, not the bid bond.  A 10% bid bond on a $1 million proposal is not a $100,000 decision.
  2. There is such a thing as a bid bond claim. We don’t “jno-you-diint2ust issue” them.

 

What Not To Do #1

Just to be sure you have the bid bond in time, you could move up the date on the Bond Request Form. The bid is really on the 25th, but you indicate the 22nd, just so they don’t mess you up.  Pretty clever?

Actually, no.  The underwriter will probably ask for a copy of the bid invitation and see the actual date.  Plus, they may have other bidders on the same job, and the info may be available online, etc.  Such tactics can hurt your rapport with the surety.  You want to be cute, but not in this way.

What Not To Do #2

It is common for sureties to indicate a maximum dollar amount (bonding line) that they will support on a single contract. Let’s say it is $1 million per job. 

If the bid calculation for an upcoming project is firm at $1.25 million, what do you do?  

Another scenario: You expected to not exceed $1 million but a sub or supplier price comes in higher than anticipated at the very last minute!

  • Lower the bid to $1 million to fit the line and hope to make up the difference on the project?
  • Request the bond for $1 million but put in the bid for $1.25 million, then claim it was a communication error?
  • Use the $1 million bid bond, then plan to get a different surety that will provide a $1.25 P&P bond?
  • Don’t bid the job?

no babyThere is really no way to “sneak in” a bid for a higher amount.  The system is set up to prevent this.  In addition, the surety may issue a capped bid bond, which means it is void if used for more than the approved project amount.

The best option is to make a special presentation to the underwriter and gain support for $1.25 million.  All the other options can have bad consequences.

What Not To Do #3

A new project opportunity pops up and there isn’t enough time to get a bid bond. Is it best to:

  • Submit the bid with no security and hope to provide it later?
  • Use a check instead of a bid bond, and plan to exchange the bond for the check after the bid opening?
  • Don’t bid the job?

A possible solution could be an electronic copy of the bid bond (which can be printed out and signed / sealed by the contractor).  Most obligees will accept this, at least temporarily.

We don’t recommend bidding with a check unless the surety has indicated their support of the project.  Without that commitment in hand, the failure to provide a P&P bond could cause loss of the bid security and contract.  Bad outcome!

What Not To Do #4no-you-dont1

The proposals have been turned in and the bid results are known. You are low bidder, REAL low.

Bids that are more than 10% below the second bidder raise a red flag for the surety and could prevent their support of the P&P bond.  What to do?

  • Report the bid results but “fix up” the numbers to eliminate the spread in excess of 10%.
  • Report the results and hope for approval.
  • Withdraw your bid.

This actually happens pretty often. We think the best approach is to step back and review the bid calculation, the bid results and the relative competitiveness of the proposers.

If there is an error in the calculation, it may be prudent to quickly withdraw the bid and avoid an unprofitable contract.  The bid results may show a cluster of bidders.  In these cases, the low bid may be acceptable if it is not more than 15% below the average of the second and third. (The point is to avoid an under priced project, bad for the contractor and any surety that may have to complete the job.)

It is also possible that the low bidder has a unique advantage such as closer to the project, specialized equipment, prior experience, materials on hand, or a special relationship with the architect or owner. The key is to make a written presentation to the underwriter explaining these details.  We hope these tips help.  

 

Oh, here’s the third thing to remember:

3. Treat bid bonds as the first step in a process, and above all, protect your surety relationship.  It is more important than any one bond or project.

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.

Secret #88: Ten Biggest Lies in Surety Bonding

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Here are the ten biggest lies in surety bonding:

  1. “The surety is your partner and we are all in this together.”

OK and I have a bridge in Brooklyn to sell you. This is true until there’s a claim or loss and then the surety is entitled to seek recovery for their loss. After all, they are a “for-profit” company that must answer to its stockholders.  They are not in business to lose money.

In cases where collateral has been required by the surety, it will not be used to help the contractor finish the project. It is used to help the surety perform the work with the replacement contractor in the event of default.

  1. “Dividing the project into multiple contracts will make it easier to bond.” pants_on_fire

This falls into the “smoke and mirrors” category.  If it’s one big job for the client, then it’s still one big job.  Experienced underwriters will recognize the true nature of the undertaking and support the client straight up if they deserve it (one contract and bond).

  1. “Slicing up the contract into phases will make it easier to cover with multiple bonds.”

Most sureties will resist this, since it is still one contract.  Their reinsurance treaties probably will not support such an approach (referred to as “stacking”).

  1. “We are requiring a 50% performance bond to save the contractors bonding capacity.”

Misplaced good intentions: Bond underwriters evaluate the contract amounts, not bond amounts.

  1. “We stipulated a 50% bond to save money.”

Too bad it doesn’t work that way. Typically the bond cost is based on the contract amount.  So you pay the normal price, but you get a bond for half as much.  Cool!

  1. “The job specifications indicate that a performance and payment bond may be required at the owners discretion and a bondability letter must accompany the proposal.”

Ughhh!  May be a time waster.  This smells like a GC who wants the subs “certified” by the surety for free.

  1. “A private owner requires a 100% Performance and Payment Bond equal to the contract amount.”

In some instances, upon receipt of the bond, they send it back, waive the bonding requirement and allow the work to proceed.  Another misuse of the surety’s services. If there is a performance issue or unpaid bill, who gets the last laugh?

  1. “The client will provide full corporate and personal indemnity.”

In order to get the bond, the client willingly signed an indemnity agreement outlining the handling of the premium and enumerating their obligations to protect the surety from loss. Now that they landed the project, some clients attempt to change the deal / ignore the agreement.

The nature of suretyship requires that underwriters rely on the good character of their clients.  Sometimes such trust is undeserved.

  1. “All company owners must give their indemnity.”

The real truth is that most, but not all do.  Typical exceptions: ESOP and publicly owned companies, low % owners, foreign / overseas owners, pre-nuptial agreements, non-transfer of asset agreements, high % collateral cases, well-heeled companies.

  1. “You got turned down for a bond, because you don’t deserve one.”

Well, often this is just not true.  In our experience, most contractors who are willing to place their own assets at risk to perform a lump sum contract, are worthy of a bond.

The problem may be the agent or the underwriter, not the applicant.  Since 1979 we have specialized in succeeding on contractors bonds even when others have failed.

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.

Secret #87: Payment Bonds – You Like It Hard or Easy?

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If you like to do things the hard way, stop reading. You’ll hate this article.

On unbonded construction projects, it is not uncommon for high dollar vendors to specifically ask for the protection of a Payment bond. When this is presented to surety underwriters, they quickly recognize that the purchase order is the subject of the bond guarantee, not the construction contract. This is a much more difficult underwriting scenario.

Why?

When a Performance and Payment Bond (P&P bond) is written on a project, the principal (contractor) is being paid to perform the work. If they fail and the surety is called in to complete the job, the unpaid balance of the contract price is a financial resource that remains available. Even if the principal has no financial capabilities, the surety still has a source of money that may be adequate to complete the obligation without having to add funds.

easy-hard

Now let’s go back to the vendor scenario. We are assuming there is no P&P bond on the project. When the vendor demands the protection of a payment bond, it will be a guarantee of the purchase order not the construction contract. It is purely a guarantee that the principal will pay the vendor. It is not a promise that incoming contract funds will be used appropriately to pay bills. Big difference!

The point is that in the vendor example, it is considered a financial guarantee – a promise that the principal will pay money when appropriate. The reason these obligations are more difficult may be obvious. If the customer is unable to pay the vendor because they’re out of money, only the surety remains to pay the bill. Solving the bond need of the vendor by issuing a financial guarantee bond on the purchase order is the hard way to solve this problem.

The Easy Way
If a 100% performance and payment bond had been required on the contract, it would have guaranteed (among other things) the payment of all bills for labor and material, including the one in question. Even if the project owner did not stipulate a P&P bond, it does not mean one cannot be used to solve the problem.

The easy solution, the alternative we always suggest, is to order a traditional 100% P&P bond and then simply file a copy of the payment bond with the vendor. It does not name the vendor as obligee the way a financial guarantee bond would. However, it is issued literally for the protection of such vendors and solves the need perfectly, and with less underwriting stress and probably a lower premium!

This can be a great solution that converts very challenging underwriting into plain vanilla.

Consider using this technique when the purchase order is a major portion of the overall contract. If it is not, it may not be economical to bond the entire job, just to cover one vendor. Then it could be necessary to pursue the financial guarantee bond instead.

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.