Secrets of Bonding 72: Surety Consents 1, 2, 3

Sorry OCD, we are starting with Consent #3!

#3: Surety Consent to Release of Final Payment

This may be one of the final steps in the life of a bonded contract. The obligee (party protected by the bond) may give the surety the opportunity of providing a “consent to release final payment” before the last money is paid out.

It is common for contractors to be paid on a monthly basis. When it is time for the final payment, it may be the obligee’s last opportunity to influence the contractor to resolve deficiencies in the work product. The contractor may be more likely to make corrections before the last money is paid out than after. Un-resolved problems can eventually become bond claims.

The bonding company should determine if the obligee is satisfied with the work (Status Inquiry form) before issuing the consent. In this manner, they may spur the contractor to action and eliminate a potential bond claim.

This procedure benefits the obligee in two ways:

a. The surety will require responsiveness to the obligees reasonable performance demands before consenting to the payment

b. It reduces the surety’s ability to refuse a future bond claim on the basis that funds were improperly released by the obligee

#2 Consent to Release / Reduce Retainage

This is similar to the Final Payment, but it can occur during the life of the contract.

The obligee may ask the surety for consent to release or reduce the retainage funds. This money is a portion of each monthly payment (called a requisition) that is held back (retained) by the obligee. For example, in a contract with a 10% retainage, the obligee will pay $9,000 on a monthly requisition for $10,000. The retainage is accumulated in the hands of the obligee and used as motivation to assure acceptability of the work as the project concludes.

The retainage percentage may also be reduced during the contract. There could be 10% retained during the first half of the project, then 0% for the balance. This enables the obligee to gather some protective money in the early stages, while allowing the contractor to have better cash flow toward the end.

Now we come to #1. Why did we cover these in reverse?

#1 Surety Consent to Issue Final Bond

This consent, which concerns the Final or Performance bond, is commonly used on all public construction contracts in NJ, and may be used by obligees on private work (such as a GC soliciting for subcontractors). We saved this one for last, because without it, there is no contract!

Important points:

a. If required in the bidding specifications, the contractors proposal could be rejected for failure to include a consent or if the document is defective.

b. The surety may choose to add a condition in the consent that invalidates it above a stipulated amount: “… such contract/performance bond amount shall in no event exceed $___.” This language protects the surety from having to support a contract higher than the approved amount. If the contractor’s proposal is for more than the surety approved, the bid will likely be rejected by the obligee. The contractor must be aware if the consent is “capped.”

c. Sureties do not automatically issue these consents. It must be specifically requested when ordering the bid bond.

d. Bonding companies issue this form of consent reluctantly. It deprives them of the discretion to not issue the Performance bond if the contractor’s condition has deteriorated, or if there is an unacceptable bid spread.

e. The consent does not require that the same surety be used for the bid and performance bonds. However, if the bid surety balks on the final bond, the contractor and obligee may remind them they are obligated to provide it.


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