Contract Clauses

8.1 Federal Requirements

8.1.1 Sources of Model Federal Clauses and Applicability

Requirement

§16 of FTA Circular 4220.1E requires that grantees evaluate Federal statutory and regulatory requirements for relevance and applicability to a particular procurement.

Appendix A.1 of this Manual contains a discussion of each of the most generally applicable requirements, including the types of contracts to which each applies, any specific wording that must be incorporated in your contracts, suggested wording where specific wording is not mandatory, and the applicability to subcontracts.

Discussion

FTA grantees recognize that the most significant of the strings attached to the receipt of federal funds is the requirement to comply with federal statutes and regulations applicable to their project or particular contract.

You will want to be able to determine exactly which clauses are required for a specific procurement because the incorporation of unnecessary or loosely drafted clauses can:

Appendix A.1 of this manual discusses each of the most generally applicable clauses. Knowing that a particular law must be complied with and that appropriate language must be included in a third party contract, still leaves the Grantee trying to draft or incorporate a clause that meets those requirements. The clause-by-clause discussions in Appendix A.1 have been developed by FTA to assist you.

Best Practices

Appendix A.1 of this Manual contains thirty model contract clauses that are either federally required or are suggested model clauses that you may include in contracts. The clauses contained in this Appendix include the following common elements which will be helpful to grantees in deciding if a specific clause is required in a particular procurement:

Applicability to Contracts - discusses the types of contracts for which the clause is applicable.

Flow Down - discusses to which prime contractors and which level of subcontractors the clauses apply.

Mandatory Clause/Language - includes the model clause, identified by FTA as either a required (specified) clause or a suggested-language clause.

The narratives provided with the individual clauses in the Appendix indicate the source of the clause, if required. Many of the required clauses come directly from requirements in various sections of the Code of Federal Regulations (CFR) which is published by various executive departments of the federal government. The most common requirements for FTA grantees come from various parts of Title 49 of the CFR, published by the Department of Transportation. Requirements of the Department of Labor (such as Davis-Bacon Act clauses) originate as specific language in Title 29 of the CFR. Where clauses are not mandated by an executive department, they are frequently modeled after clauses in the Federal Acquisition Regulations (FAR) which are applicable to those executive departments.

Even though the FAR does not apply to grantee procurements, one advantage of using FAR clauses in the absence of a specific requirement imposed upon your Agency is that a body of federal law has been developed which interprets those clauses. 1

Your State, local jurisdiction, or transit Agency may have enacted a procurement code or body of regulations that actually establishes specific clauses which you must use. In that case, you will be obligated to use what has been established for you. Many of the recent enactments of those codes or regulations are adaptations of the American Bar Association's Model Procurement Code for State and Local Governments. 2

You may have the ability to incorporate clauses by reference (such as, title, date and where it can be found) in your contracts. To the extent clauses you want to incorporate are published in a Federal, State, or local statute, code, or ordinance, or in an official regulation such as the CFR, you should be able to incorporate those provisions directly into your contractual document by reference only. You can check with your supporting legal counsel on what clauses you can and cannot incorporate by reference and the manner in which they may be incorporated. It is doubtful you would ever be able to incorporate by reference a clause that was only published in an FTA Circular, because of the way FTA Circulars are published (i.e. they are not officially published in the Federal Register).

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8.1.2 Davis-Bacon Act

Requirement

§ 24 of the Master Agreement delineates the Grantee's obligations to comply with the employee protection requirements of the Davis-Bacon Act. For construction activities exceeding $2,000 performed in connection with an FTA-funded Project, the Recipient of those funds agrees to comply with, and assure compliance with, the requirements of 49 U.S.C. §5333(a), the Davis-Bacon Act , 3 and the implementing regulations of the Department of Labor at 29 CFR Part 5. In addition to the requirements of the statute and regulations, the Recipient also agrees to report to the FTA every suspected or reported violation of the Davis-Bacon Act or its Federal implementing Regulations.

Discussion

The Davis-Bacon Act (the Act) provides that contracts in excess of $2,000 to which the United States is a party (i.e., federal funds are involved) for construction, alteration, or repair (including painting and decorating) of public buildings or public works within the United States shall contain a clause that no laborer or mechanic employed directly upon the site of the work shall receive less than the prevailing wage rates as determined by the Secretary of Labor. 4 The clause mandated by the Act and its implementing federal regulations is found in Appendix A.1 of the Manual. The purpose of this section in the Manual is to discuss the practical issues surrounding the requirements of the Act and the regulations implementing it.

Best Practices

Federal Wage Determinations - When a construction project is being performed with federal funds, laborers and mechanics employed directly upon the site of the work shall be paid a minimum wage which is determined by the Secretary of Labor. That rate of pay is referred to as the "Davis-Bacon wage rate" and is specifically identified in the contract between the Recipient and the Contractor.

Types of Wage Determinations - Federal wage determinations are of two types: (a) General Wage Determinations and (b) Project Wage Determinations. General wage determinations contain prevailing wage rates for the types of construction designated in the determination, and they are used in contracts performed within a specified geographical area. They contain no expiration date and remain valid until modified, superseded, or canceled by a notice in the Federal Register by the Department of Labor. These determinations should be used whenever possible.

Project wage determinations are issued at the specific request of the grantee. They are used only when no general wage determination applies and they are effective for 180 days from the date of the determination.

It is the obligation of the contracting officer to ensure that a copy of the most current wage determination of the Department of Labor (DOL) is actually included in the solicitation and ensuing contract. The Wage and Hour Division of the DOL is responsible for the publication of wage determinations. Such determinations are numbered, dated, and issued as different rate schedules, depending upon the type of construction involved (building, residential, highway, or heavy construction). 5

State Wage Determinations on Federally Funded Projects - Your state may also prescribe minimum wages and benefits for public works projects. If your state has established prevailing wages that are higher than Davis-Bacon Act rates, you should get advice of counsel to determine whether or not the state law or Davis-Bacon Act rate prevails, however in no event can rates be lower than Davis-Bacon Act rates.

Where to Obtain Wage Determinations - General wage determinations may be found in the Government Printing Office document entitled General Wage Determinations Issued Under The Davis-Bacon and Related Acts.

Subscriptions to this information are available electronically 6 and by hard-copy 7. The decisions are included in six different volumes, arranged by state. If ordering a hard-copy subscription, only get the volume that includes your state. An annual edition is published in January or February of each year and then updated weekly throughout the year as part of the loose-leaf service.

This publication is available at each of the 50 Regional Government Depository Libraries and many of the Government Depository Libraries across the country. In large metropolitan areas, this document may also be available in a central public library as well as through local offices of your state's department of transportation. In addition, The Davis-Bacon Act wage rates can be accessed on the Internet. This site is maintained by the General Services Administration (GSA).

If you are involved in a project that will involve the issuance of multiple construction-related solicitations over an extended period of time, you may want your own copy of this document. This is not only for convenience but also ensures that your solicitations and contracts contain the most up-to-date determinations. 8

Requesting a Wage Determination - As you start a project involving construction, one of the best personal contacts you can make is with the local DOL representative who will be monitoring your contract for compliance with the Davis-Bacon minimum wage requirements. If a general wage determination is available for your area, you may use it without notifying the Department of Labor. If a general determination is not available for your area, you can work with your local DOL representative in requesting either a general wage determination or a project determination. 9 Do not hesitate to utilize the services of a project's design services professional to assist in obtaining information about the latest wage determinations. In all likelihood, that firm will know precisely what the requirements are and who to contact at the DOL.

Because the process to make a determination takes at least 45 days, it is important to know early in the project whether or not a determination is available for your area. The request to have a determination made needs to be submitted to the DOL 45 to 60 days before the solicitation is to be issued.

Wage Determinations and Your Solicitation/Contract - The clause and regulations require that the wage determination be physically attached to the solicitation. The wage determination cannot be incorporated by reference. If the solicitation is issued without a wage determination included, bids may not be opened until a reasonable time after the wage determination has been furnished to all bidders and incorporated into the solicitation by amendment.

What if the wage determination expires before award? It should be noted that general wage determinations never expire and remain valid until modified, superseded or canceled by DOL. But project wage determinations do expire. In the event that your project wage determination expires or your general wage determination is superseded by a new determination before bids are received, you must request a new project determination (if using a project wage determination) and incorporate the new rates in a solicitation amendment in sufficient time for bidders to amend their bids. If the new determination does not change the wage rates and would not cause bidders to change their bid prices, you should amend the solicitation to include the number and date of the new determination.

If the wage determination expires after bid receipt but prior to award, you should request an extension of the determination from DOL's Wage and Hour Division. If necessary, award of the contract should be delayed until the request for extension has been granted or a new wage determination has been issued. If the request for extension is denied and a new wage determination issued that changes the wage rates for classifications to be used in the contract, the contracting officer may either cancel the solicitation and re-advertise with the appropriate determination or award the contract and incorporate the new determination effective on the date of contract award. 10 If the new wage determination did not change any wage rate, the contracting officer should award the contract and modify it to include the number and date of the new determination. 11

What if the wage determination is modified before award? If the wage determination is modified (as opposed to expires) before bids are received, whether or not it must be included in the solicitation is determined by the time of receipt of the modification by the contracting agency or the time of its publication in the Federal Register. The modification is effective and must be included in the solicitation if (a) it is received by the contracting agency, or notice of the modification is published in the Federal Register, 10 or more calendar days before the date of bid opening or (b) it is received by the contracting agency or notice of the modification is published in the Federal Register, less than 10 days before bids are due to be opened unless the contracting officer finds that there is not reasonable time to notify bidders of the modification.

If the modification is received (or notification of the modification published in the Federal Register) after bid opening, it is not effective and shall not be included in the solicitation. 12 You may have a situation where an "effective modification" (i.e., received by the contracting agency or published in the Federal Register 10 days prior to the bid opening date) is received by the contracting officer at some time later than it was received by the contracting agency. In this case, if the "effective modification" is received by the contracting officer prior to bid opening, the bid opening date shall be postponed to allow a reasonable time to amend the solicitation to incorporate the modification and permit bidders to consider the impact of the modification on their bids. If the modification is received after bid opening, but prior to award, the same procedures apply as in our earlier discussion about new wage determinations received after bid opening, but prior to award. If the effective modification is not received by the contracting officer until after award, the contracting officer must modify the contract to incorporate the wage modification retroactively to the date of contract award and equitably adjust the contract for any increased or decreased cost of performance resulting from any changed wage modifications. 13

What if the Wage Determination is modified after award? It is recommended that grantees incorporate language such that contractors are obligated to pay prevailing wages throughout the life of the project and are not entitled to change orders for increased costs associated with any change in the prevailing wage made after award.

As you can see from this discussion, you should not wait until you are ready to issue the solicitation to start checking on the Davis-Bacon wage rates for your area and it should be equally obvious that a good working relationship with your local Department of Labor officials is very important. They generally are very cooperative and helpful in answering any questions you may have and notifying you of impending changes or revisions to existing wage determinations that would impact your contract because it is in their best interests that your project run smoothly from a minimum wage standpoint.

Contract Administration and the Davis-Bacon Act - Once the contract is awarded, it is initially the responsibility of the contracting officer to ensure that the contractor comply with the provisions of the contract clause. This means ensuring that the appropriate signs are available and posted, as well as ensuring that the appropriate payrolls and certificates are submitted not less frequently than weekly. If you have a construction management contractor, you may want to assign that firm the task of checking payrolls on a regular basis and spot-check the pay of individuals against the actual work that they are performing. The failure of the contracting officer to properly monitor the contractors compliance with Davis-Bacon may result in a determination by DOL that your agency is responsible for payment of the back wages.

If you do not have such a contractual relationship and your construction management is done "in-house," the contracting officer will have responsibility for compliance checks. Once you have reviewed the payrolls, they should be retained unless requested by an appropriate FTA official. In your initial meeting with the FTA regional officials for your project (or this particular contract) make sure it is clear to whom the payrolls should be transmitted. FTA may request that you hold them on-site or at the agency for them to review and not actually transmit them. FTA may also delegate the review function to its Project Management Oversight contractor.

Complaint Process - If DOL comes to the site to investigate a complaint (often the way minimum wage discrepancies are uncovered), you (and the contractor) will want to cooperate in that investigation. If a determination is made that the contractor is not in compliance with the Davis-Bacon Act contractual provisions, it is the contracting officer's responsibility to ensure that DOL and the FTA are informed of the discrepancy. If it is determined that back wages are owed, you will receive written communication to that effect from the DOL and the FTA and you should comply very strictly with that direction -- at this point in time, it is an issue between the contractor and the DOL, and the DOL regulations govern the reviews and appeals from determinations of that type.

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8.1.3 Cargo Preference

Requirement

§ 14.b of the Master Agreement sets forth the Grantee's obligations to comply with the requirements of the United States Maritime Administration regulations entitled "Cargo Preference -- U.S. - Flag Vessel," found at 46 CFR Part 381. Specifically, the grantee is obligated to incorporate the clause found at 46 CFR Section 381.7(b) into contracts in which equipment, materials, or commodities may be transported by an ocean vessel.

Best Practices

The fourth model clause in Appendix A.1 to this Manual contains a suggested clause that complies with the requirements of the United States Maritime Administration at 46 CFR Section 381.7(b), which provides a suggested clause for use as well.

If your contract contemplates the shipment of any equipment, materials, or commodities by ocean vessel, a clause that meets the requirements of 46 CFR Part 381 must be included in the contract. Additionally, if a subcontractor at any tier would be responsible for the ocean vessel shipment, the clause would flow down to that subcontractor. The clause in Appendix A.1 or as found at Section 381.7(b) meets that requirement and it is recommended that either of these clauses be utilized.

If it appears you have a contract in which ocean vessel transport would be required, it is recommended you check with your legal counsel and ascertain if there are any changes to the law or the clause. Questions about this clause frequently come up in the context of rail car procurements which, until recently, invariably required the shipment of rail cars from overseas locations. It is recommended that you either be prepared to address this requirement, or be prepared to respond to any questions offerors may have at any pre-bid or pre-proposal conferences held in conjunction with those procurements.

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8.1.4 Buy America

Requirement

§ 14.a of the Master Agreement requires compliance with 49 U.S.C. § 5323(j) and FTA's Buy America regulations found at 49 CFR Part 661, as well as implementing guidance issued by the FTA.

Discussion

Please see Section 4.3.3.2.2 of this Manual for a thorough discussion of the Buy America requirements. Please see the Appendix for the required clauses.

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8.1.5 Fly America

Requirement

§14.c of the Master Agreement states that if the contract or subcontracts may involve the international transportation of goods, equipment, or personnel by air, the contract must require contractors and subcontractors at every tier to use U.S.-flag air carriers, to the extent service by these carriers is available. 49 U.S.C. 40118 and 4 CFR Part 52.

Discussion

A contract for goods or equipment must contain a Fly America provision as discussed in Appendix A.1, just as it contains a Cargo Preference provision, if there is reason to expect that international air travel would be involved. Although there is no Federally prescribed language for this provision, model language is contained in Appendix A.1. If there is no possibility of international shipments or travel under the contract, these provisions are not required.

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8.2 Surety Bonds

History

The idea behind surety bonding is straightforward. One person guarantees to another that a third person will perform.

The first corporate surety bonding company in the United States, the Fidelity Insurance Company, was formed in 1865. In 1894, Congress passed the Heard Act, which required surety bonds on all federally funded projects as a result of the large number of contractors working on public projects who had defaulted and in response to complains from unpaid suppliers and subcontractors. The Miller Act (40 U.S.C. §270a et seq.) was passed in 1935 to replace the Heard Act. The Miller Act requires performance and payment bonds for all public work contracts in excess of $100,000 and payment protection, with payment bonds the preferred method for contracts in excess of $25,000. 14 Almost all states and most local jurisdictions have enacted similar legislation requiring surety bonds on public works. These generally are referred to as “Little Miller Acts."

Today, surety bonds protect virtually every public construction project in the U.S. In 1977, nearly $160 billion in public works projects were so protected with surety bonds. From 1990-1997, more than 80,000 contractors failed, with losses of $21.8 billion, according to Dun and Bradstreet’s Business Failure Record. From 2001-2003, surety companies incurred more than $1.8 billion in losses from surety bonds, according to The Surety Association of America.

Types of Surety Bonds

Surety Bond - A written agreement whereby one party, called the surety, obligates itself to a second party, called the obligee (the owner, grantee), to answer for the default of a third party, called the principal or obligor. Surety bonds used in construction are called contract surety bonds. There are three primary types of contract surety bonds: bid bonds, performance bonds, and payment bonds.

Bid Bond (or Bid Guarantee) – A promise from a surety (or a certified or cashier’s check given by a bidder) for a supply or construction contract to guarantee that the bidder, if awarded the contract within the time stipulated, will enter into the contract at the price bid and furnish the prescribed performance and/or payment bond. Default ordinarily will result in liability to the obligee for the difference between the amount of the principal’s bid and the bid of the next low bidder who can qualify for the contract. The liability of the surety is limited to the bid bond penalty. Contractors that have a relationship with a surety can normally obtain bid bonds at no cost. Bid bonds are not usually appropriate for negotiated procurements due to the nature of the process.

Performance Bond - A promise from a bonding company ("the surety") to perform (or cause to be performed) those obligations of the contractor ("the principal"), when the contractor fails to perform its obligations, in an amount up to but not exceeding the amount of the bond ("penal sum"). Performance bonds can incorporate payment bond (labor and materials) and maintenance bond liability (see below). A performance bond protects the owner (grantee) from financial loss should the contractor fail to perform the contract in accordance with its terms and conditions. Once a surety bond is issued, it cannot be withdrawn or cancelled. General contractors may also act as the obligee when bonding subcontractors. General contractors may require subcontractor bonds if the subcontractor is a significant part of the job or a specialized contractor that is difficult to replace.

Payment Bond - A promise from a surety that guarantees payment to certain subcontractors, laborers and suppliers for the labor and materials used in the work performed under the contract. Payment bonds are also called labor and material bonds. These bonds protect laborers and suppliers in the event the contractor fails to pay them. The surety’s obligation is limited by the amount of the bond.

Maintenance Bond - A maintenance bond normally guarantees against defective workmanship or materials. However, maintenance bonds occasionally may incorporate an obligation guaranteeing “efficient or successful operation” or other obligations of like intent and purpose.

It is important to note that surety bonds are not intended to protect the contractors that post them. These bonds are for the protection of the owner of the construction project and for the protection of laborers, material suppliers and subcontractors. Since mechanic’s liens cannot be placed against public property, the payment bond may be the only protection these claimants have if they are not paid for the goods and services they provide to the project. Under normal circumstances, sureties do not charge a separate premium for Payment Bonds.

General Indemnity Agreement

When a surety guarantees the performance of a firm (the principal), the principal remains liable for this obligation to the surety in the event of a contract default by the principal. The principal is obligated to reimburse the surety for whatever sums the surety is required to pay out to complete the principal’s contract. Many contracting firms do not have the capital to assure this repayment, and so most surety companies require a general agreement of indemnity (GAI) to be signed not only by the firm, but by individuals willing to support the firm. This might be the owner of the firm, the spouse of the owner, a parent corporation or other individuals willing to risk their assets for the firm.

Public vs. Private Sectors

Performance bonding is not typical in large private sector contracts but is required in the public sector. Public construction contract performance bonding is more common because:

Payment Bonds have a related but secondary purpose. Usually in the public sector, a contractor's suppliers cannot place liens on the material and work supplied when payment to the subcontractor is overdue. States often protect public property and services by exempting public works from materialmen's liens. Therefore, although performance bonds alone would often guarantee payment to subcontractors, additional payment bonds are often required in construction contracts to assure there are no disputes over potential performance bond liability to satisfy second and third tier subcontractor claims.

Prequalification of Contractors

Most surety companies are subsidiaries or divisions of insurance companies, and both surety bonds and traditional insurance policies are risk transfer mechanisms regulated by state insurance departments. However, traditional insurance is designed to compensate the insured against unforeseen adverse events. The policy premium is actuarially determined based on aggregate premiums earned versus expected losses. Surety companies operate on a different business model. The surety prequalifies the contractor based on financial strength and construction expertise. Since the bond is underwritten with little expectation of loss, the premium is primarily a fee for prequalification services and the allocation of the surety’s capital to protect the obligee against the possibility of loss.

Although the bonding companies perform this prequalification for their own purposes and their interests are similar to those of the transit agency, the transit agency is still required to review potential contractors’ responsibility before award. While surety bonds are a necessary condition in the determination of responsibility, they alone are not sufficient. Prequalification of contractors is the primary focus of surety underwriters. Surety bond underwriters must analyze applicants closely since they are committing the assets of their companies to guarantee the contractor’s performance and payment of its suppliers. Underwriters must be certain that only those contractors who can complete a project receive a bond, and they must be fully satisfied that the contractor’s business is well-managed and profitable. Prequalification is one of the most valuable services of the surety bond process. The process involves underwriters satisfying themselves that the contractor has:

Surety bonds are obtained through insurance agents and brokers, called producers. These producers help their contractor clients during the prequalification process and assist them in developing a business relationship with the surety bond company. 15

Surety Bonds vs. Bank Letters of Credit

Bank letters of credit are discussed below for consideration under “Best Practices” in the context of non-construction contracts. At first glance it may appear that letters of credit and surety bonds offer the same degree of financial protection. However, a more thorough review reveals that surety bonds provide greater benefits to both the grantee (obligee) and the contractor (principal). 16

A Comparison

Feature Bank Letters of Credit Surety Bonds
Prequalification Services

The underwriting bank focuses primarily on the quality and liquidity of the underlying collateral; i.e., on the ability of the contractor to repay any draws on the LOC.

The underwriting bank focuses primarily on the quality and liquidity of the underlying collateral; i.e., on the ability of the contractor to repay any draws on the LOC.

The essence of surety underwriting is prequalification. The surety examines the contractor’s entire business operation, checking for adequate finances, necessary experience, organization, existing work- load and its profitability, and management skills to successfully complete the project for which the bond is required.

Claims - Access to Funds

The beneficiary must make a demand prior to expiration date. No funds are available after expiration date, even for liabilities incurred prior to expiration. The bank has no obligation to complete the project.

There is no completion clause in a LOC. The task of administering completion of the contract is left to the owner. The owner must evaluate work done, develop detailed specifications for completion of the work and solicit bids or negotiate (depending on state law) for a new contractor to complete the work. Under a performance bond, these tasks are the responsibility of the surety.

The owner must determine the validity of claims by subcontractors, laborers, and material suppliers. If there is not enough money from the letter of credit to pay all of the claims, then the owner has to decide which claims will be paid and which will be rejected.

In most cases, a bond covers liabilities that were incurred during the bond term. A claim may be made on the bond after the termination of the bond for liabilities incurred prior to cancellation or nonrenewal.

The surety has obligations to both the owner and the contractor. If the contractor and owner disagree on contract performance issues and the owner declares the contractor in default, the surety must investigate the claim.

The surety has several alternatives if the Contractor defaults:

  1. Finance the original contractor or provide support necessary to allow the contractor to finish the project;
  2. Arrange for a new contractor to complete the contract;
  3. Assume the role of the contractor an subcontract the remaining work;
  4. Pay the penal sum of the bond.

With payment bonds, the surety pays the rightful claims of certain subcontractors, laborers and suppliers.

Borrowing Capacity

Specific assets are pledged to secure bank letters of credit. LOCs diminish an existing line of credit, and are reflected on the contractor’s financial statement as a contingent liability. The tying up of assets, or the reduction of an available line of credit, is counter-productive to both the owner and the contractor. This can adversely affect the contractor’s cash flow during contract performance.

Subcontractors and material suppliers may be reluctant to provide labor and supplies to the contractor since they have no access or rights to funds available from the LOC.

With few exceptions, performance and payment bonds are issued on an unsecured basis. They are usually provided on the strength of the corporate and personal signatures of the company owners. The issuance of bonds has no effect on the contractor’s bank line of credit.Subcontractors and material suppliers may be more willing to provide labor and materials to the contractor when they are protected by a payment bond.

Cost

Cost is generally 1% of the contract amount covered by the LOC- e.g., if the LOC covers 10% of contract, Cost = 1% × (10% x Contract Amount).

Generally ½ - 2% of contract price. The premium includes 100% performance bond, a 100% payment bond, and normally a one-year maintenance period.

Cost of Bonds

The price or premium for a bond will vary depending on the type of construction, the contract amount, the duration of the project, the surety company, and the experience and financial strength of the contractor. Premiums range, on average, from ½ % to 2 % (or perhaps higher, and not necessarily tied to business strength) of the contract price for contractors with established bonding credit. If the contract amount changes, the bond premium will be adjusted for the change in contract price. There is usually no additional cost for bid bonds or payment bonds when purchased with a performance bond.

Bond premiums cannot be reduced by lowering the percentage of the bond from, say, 100% to 50%. Thus, it usually makes sense to require 100 percent performance and payment bonds so the owner receives maximum protection. 17 The advantage, however, in considering a lower percentage is that more contractors may be allowed to compete because some may not have the bonding capacity to get a 100% bond, but may qualify for a lesser amount. 18

Surety bonds issued through the SBA Surety Bond Guarantee Program (see below) carry an additional 0.6 percent fee.

Government Oversight

Surety bond companies are regulated by state insurance departments. Surety bonds on state public works must be issued by a surety bond company licensed by the insurance department in that state. 19

On the federal level, the U.S. Treasury Department maintains a list of surety bond companies that it has qualified to write surety bonds required for federal construction projects. To be on this list, a surety bond company must file financial and other information with the Treasury Department and undergo the Department’s financial analysis. 20

Bonding Assistance Programs

Since the early 1970s, the Small Business Administration (SBA) has operated its Surety Bond Guarantee Program, which provides some repayment of losses to surety bond companies from bonds they would otherwise not provide. Small contractors have performed more than $1 billion of contracts per year with the help of this SBA program.

The U.S. Department of Transportation (DOT) has established a Bonding Assistance Program that is administered by the Office of Small and Disadvantaged Business Utilization (OSDBU) within the Office of the Secretary. The Bonding Assistance Program offers certified minority, women-owned and disadvantaged business enterprises (DBEs) an opportunity to obtain bid, payment and performance bonds for transportation-related projects. The Program provides surety companies an 80% guarantee against losses on contracts up to $1,000,000. Bond approval and issuance are performed by the DOT approved surety companies.

A number of states have also established bond guarantee programs for contractors, as well as other special bonding assistance programs.

The Surety Association of America (SAA) is a nonprofit trade association that represents more than 650 U.S. and eight foreign surety bond companies. SAA has developed a Model Contractor Development Program (MCDP) to increase and promote the availability of surety bonds to small, minority and women contractors. The objectives of this program include:

SAA also offers an educational tool for contractors and subcontractors, Your First Bond, a videotape and brochure of what contractors need to do to apply for bonds, and other educational materials. 22

Ratings Organizations

A.M. Best Company (Best’s) is a private company that analyzes and rates insurance companies. Each year it publishes Best’s Insurance Reports, Property-Casualty, which includes detailed profiles and financial information on almost every insurance company operating in the United States. Best’s gives each company a rating (designated by an alphabetic character) and a financial size category (designated by a Roman numeral scale). Best also publishes an abbreviated version of its Best’s Key Rating Guide, Property-Casualty, which contains only the alphabetic ratings and financial size categories of each insurance company. These books are available in many public and financial libraries or may be purchased from A.M. Best. 23

Other ratings organizations include Dun & Bradstreet, 24 Fitch Ratings, 25 Moody’s Investors Service, 26 Standard & Poor’s 27 and Weiss Ratings Inc. 28 FTA does not endorse any particular company or program.

8.2.1 Performance Bonds

Requirement

For Construction Activities:

§ 15.m. (1) of the Master Agreement states that:

Construction Activities. The Recipient agrees to provide bid guarantee, contract performance, and payment bonding to the extent deemed adequate by FTA and applicable Federal regulations, and comply with any other bonding requirements FTA may issue.

FTA Circular 4220.1E states the specific minimum bonding requirements for construction or facility improvement contracts with a value exceeding $100,000:

  1. Bonding Requirements. For those construction or facility improvement contracts or subcontracts exceeding $100,000, FTA may accept the bonding policy and requirements of the grantee, provided FTA determined that the policy and requirements adequately protect the Federal interest. FTA has determined that grantee policies and requirements that meet the following criteria adequately protect the Federal interest. 29
    1. A bid guarantee from each bidder equivalent to five (5%) percent of the bid price. The "bid guarantee" shall consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of his bid, execute such contractual documents as may be required within the time specified;
    2. A performance bond on the part of the contractor for 100 percent of the contract price. A "performance bond" is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such a contract; and
    3. A payment bond on the part of the contractor. A payment bond is one executed in connection with a contract to assure payment, as required by law, of all persons supplying labor and material in the execution of the work provided for in the contract. Payment bond amounts determined to adequately protect the federal interest are as follows: (1) 50% of the contract price if the contract price is not more than $1 million; (2) 40% of the contract price if the contract price is more than $1 million but not more than $5 million; or (3) $2.5 million if the contract price is more than $5 million.
    4. A Grantee may seek FTA approval of its bonding policy and requirements if they do not comply with these criteria.

State laws are sometimes specific in requiring or prohibiting security and guaranties in public procurements; performance bond requirements may apply even when the Federal requirements do not, and the state requirement may also affect bid guaranties.

For Non-Construction Activities:

FTA does not require bonding in any amount for non-construction contracts, including rolling stock. FTA leaves the decision to require bonds for non-construction contracts to the discretion of its grantees. 30

Discussion

Construction: For construction contracts with a value exceeding $100,000, your solicitation documents must include the performance bond, payment bond, and bid security requirements specified above. Bids that do not include the required bid security are to be rejected. Your state law may require additional bond protection (e.g., for even smaller construction contracts).

Non-Construction: You may decide to include bond requirements in other procurements where your agency has a material risk of loss because of a failure of the prospective contractor. This is particularly so if the risk arises from the potential for contractor bankruptcy or financial failure at the time of partially completed work. If you require a performance bond, you may also require bid security which assures the execution of the performance bond as described in Section 4.3.3.3.2, "Bid Guaranty." Payment bonds are most typically used in construction contracts or contracts where the risk of failure of the prime contractor with debts to subcontractors is material. Since the contract is incorporated into the bond, it is essential that the grantee complies with the terms of the contract or the bond may not be enforceable.

In recent years sureties have been paying much more attention to the terms of their customers’ contracts. One area of great concern to sureties in the current environment is the length of contracts. Here the issues tend to be parts warranties and option provisions. Sureties are tending to limit their exposure to five years, including warranties. 31 Another major surety issue affecting the transit industry, especially bus manufacturers, is the poor financial condition of many suppliers. The financial strength of the contractor affects the cost of the bond, as well as the ability of the contractor to secure a bond. If a grantee asks for a 100% performance bond on a bus procurement in the current environment, it may very well preclude potential suppliers from bidding. Another practice causing surety problems concerns liquidated damages; i.e., some agencies have contractual provisions that produce unlimited liquidated damages.

Alternative forms of acceptable security include letters of credit from financially secure institutions, such as banks, and cash deposits. Letters of credit are frequently used in a field or for a principal with which bonding companies have little experience. Letter of credit terms differ from bonds in that they do not provide for completion of the contract, in the event the principal is unable to perform. Procedures should be established to make certain the letter is issued by a bank or other financial institution that offers financial security similar to a bonding company. Cash deposits are not typically used except as bid security.

The FTA requirement discourages unnecessary bonding because it increases the cost of the contract and restricts competition, particularly by disadvantaged business enterprises. Bonding companies exercise their discretion and assure their profits primarily by declining to undertake excessive risks. Consequently many bidders have limited "bonding capacity." Unnecessary performance bonds reduce their ability to bid on bonded work. Small businesses with short histories may have particular difficulty obtaining a bond.

Best Practices

Bond Authenticity - It is essential that bonds be verified as being authentic when they are presented to owners. It is a fact that unscrupulous contractors have on occasion presented fraudulent bonds. Owners (obligees) should always contact the surety company to confirm the authenticity of the bond that has been presented. The Surety Association of America (SAA) maintains a list of surety companies that will assist in verifying the authenticity of a surety bond. The authenticity program is available via the Internet. 32

Exclude Warranties from Bond – It has become increasingly difficult to obtain bonds of longer duration than two years. Since the warranty periods will greatly extend the duration of the bond, it would be best to remove any warranty requirement from the performance bond and cover the warranty risk through other techniques. Suggestions include withholding a reasonable portion of the contract price for warranty repairs and releasing the withholding in increments as the warranty time-period dissipates, or requiring a separate Maintenance or Warranty Bond in a reduced amount sufficient to cover the potential obligations of the Contractor for repairs or maintenance. This will remove a bonding obstacle and keep the bonding costs more reasonable. The key message here is to keep long-term obligations with the manufacturers and not attempt to give them to sureties.

Consider Letters of Credit – On non-construction contracts, where you are not required by FTA to have bonds, but where you may be required to protect your progress payments to the contractor prior to delivery of final products, consider the use of a bank letter of credit (LOC) from the contractor instead of a bond. A bank letter of credit (LOC) is a cash guarantee to the owner. The owner can call on the letter of credit on demand without cause. 33 Once called upon, the letter of credit converts to a payment to the owner and an interest-bearing loan for the contractor. Bonds may be an expense that you don’t need to incur, and bonds may not even be available in the amounts you would need at reasonable prices. 34

Cap the Liquidated Damages – The Contractor’s maximum risk must be clearly expressed in the contract so that the surety will know how to price the risk. Damages should not be open-ended. Additionally, if damages are expressed “per day,” make the daily damages accrue for business days only. Do not include Saturdays or Sundays since you cannot take delivery on those days.

Design-Build Projects – For design-build projects and large transit capital projects (those over $200M) it would be advisable to talk to prospective sureties before the solicitation is issued to see if the Design-Build contractors will have problems securing bonds because of the size of the project. There are two problems to be aware of: (1) The lack of bonding capacity in the industry at the current time, and (2) The fact that surety practice has historically been based on the conventional Design-Bid-Build method, where design and construction are performed by separate companies and where sureties have detailed designs completed for which they can assess the performance risks. On a Design-Build project, the lack of detailed designs desired by sureties to evaluate project risk may make it difficult to obtain performance bonds for the full value of the contract. When this is the case, the grantee will want to involve their FTA regional office and request a waiver from the standard bonding requirements. It should also be noted that consultation with FTA would be advisable in any design-build project to create a reasonable bonding strategy. In any case, if a 100% bond were required by your agency, it would apply only to the value of the construction work within the design-build contract.

Technology - Surety companies like “brick and mortar” business because they understand it. They are adverse to technology (e.g., projects requiring software development), and do not like to bond the Operation and Maintenance phase of contracts where rail cars are being bought with O&M responsibilities. If you are considering a bond in these situations, you should contact prospective sureties to determine if bonds will be available before you issue your solicitation.

Notify Surety of Problems Early – It is very important to notify the surety of problems as soon as they occur. When the surety is notified, and becomes involved, contractors are strongly motivated to perform because the threat of losing the ability to obtain bonds is a very serious concern to contractors.

If the Contractor is experiencing financial difficulties, the surety will often provide working capital to keep the contractor going. This financial assistance may occur without a formal declaration of default by the owner. Another form of financial assistance often provided by sureties is to guarantee a line of bank credit. This will assure a steady flow of materials to the job site and payments to subcontractors.

Sureties frequently will provide technical assistance in order to minimize problems and losses on a project. Many sureties employ professional engineers, accountants, and other technical staff or advisors who can help a contractor who is experiencing problems.

Sureties can provide mediation between an owner and Contractor. When problems occur on a construction project, it’s likely that the relationship between the owner and Contractor is strained. The surety, as a third-party participant, can investigate the issues that are dividing the parties and offer workable solutions before the owner declares a default.

Subcontractor failure is a frequent cause of a prime’s problems. Sureties can become involved in assisting a subcontractor with financing and technical help, just as they do with the prime contractors they are bonding. They will do this to protect their bonded contractor from default. Once again, it is important that the surety be informed early of performance problems on all levels of the project so they can assist when circumstances require it.

Subcontractor Bonds – Grantees can help their prime contactors manage risk by requiring performance bonds from major subcontractors. If a subcontractor is a significant part of the job or so specialized that it will be difficult to find a replacement, bonding is a cost-effective way to limit the exposure of both the grantee and the prime contractor.

Remember the important contribution of the surety in prequalifying the subcontractor. This is an important step in ensuring that a responsible subcontractor is selected by the prime for a critical role on the project. While the cost of the subcontractor’s bond will have to be paid by the prime and will be passed on to the grantee, it is nevertheless an insurance policy that can help avoid significant problems for the prime and thus for the grantee. It is also well to keep in mind that a subcontractor that is experiencing financial difficulties is more likely to complete a bonded project because corporate assets, and possibly personal assets, are at risk. This may be a singularly important factor in keeping the subcontractor performing on the job. Be sure to investigate the quality of the subcontractor’s surety, using one of the industry rating companies mentioned above, and always confirm the authenticity of any bond presented.

Subcontractor bonding may also be beneficial when the prime contractor is not financially strong. For example, New York City Transit (NYCT) recently had a situation where the cost of a warranty bond was very expensive to a vehicle manufacturer because of their financial condition. In order to overcome this, the manufacturer had its major parts supplier provide the bond, and as a result the manufacturer saved $2,000 per vehicle. The supplier’s cost for the bonding was significantly less since they were in excellent financial condition.

Consider More Stringent Prequalification/Responsibility Criteria - If performance bonding is a problem because the project is so large that few bidders can be fully bonded, or because of its effect on competition, you can consider other ways of reducing your agency's risk. You may (through prequalifying only strong bidders, or requiring a high standard of responsibility) be able to reduce your risk in a way that allows more competition than would result from a full performance bond requirement.

Balance the Costs of Bonding against Risks Present in a Range of Contractors - In addition to construction contracts, specialty supply contracts that involve custom manufacturing, e.g., for rail cars or buses, involve some risk of failure and consequences similar to construction situations. However, performance bonds are far less common in these situations than in construction contracts. Information technology development contracts also hold the potential for loss in the event of contractor failure, but performance bonding is less common in developmental work because the risks of failing are too expensive to insure and because the surety/contractor relationships have not developed as they have in the construction industry.

If you are seriously concerned about one or more of the following, considering your possible successful offerors, you can evaluate the need for a performance bond, in light of its cost, its effect on competition, and effect on DBEs:

Consider Corporate Guaranty - Where your concern is partly that the proposers have limited financial resources, but they have relationships with financially stronger corporate entities, you could consider requiring a corporate guaranty of the contract rather than a performance bond. In this case, the parent corporation of your contractor, whose liquidity might rival the bonding company's, would promise to perform the contract should the contracting corporation fail to do so. This arrangement may not only be less expensive than a performance bond, but may also result in more influence on the contractor where contract disputes are involved.

Return Unnecessary Bid Guaranty - Because guarantees have a financial impact on proposers as long as they are in effect, unused bid guarantees should be returned to proposers as soon as it is determined that they have no reasonable chance of winning the contract. This is discussed in Section 4.3.3.3.2, "Bid Guaranty."

Surety Bond Claims and Counsel – Before a surety will assume responsibility for a contractor that you have defaulted, the surety must be satisfied that its contractor owes a debt. The surety will conduct an investigation as a result of receiving your notice of claim. Keep in mind that the issues of default and claims under the bond are predicated on the legal interpretation of a contractual relationship, as developed through statutes and legal precedents. This means it is critical that you seek legal assistance from counsel who is familiar with surety bonds and construction, which is a specialized field of law. Never rely on a layperson’s interpretation of the contract. Experienced counsel can save time, money, and frequently, unnecessary litigation. The American Bar Association (ABA) Trial Tort and Insurance Practice Section’s Fidelity and Surety Law Committee includes lawyers who specialize in surety law. Many state bar associations also have surety committees or construction law committees. For names of lawyers in your area, call the ABA (312) 988-5607 and ask for the FLSC membership directory or the pages for a particular state, or call the state bar association for a reference.

It is also of the utmost importance that you document the progress of your project. Remember that the surety promises to complete the contract when the “principal is in default of the contract and has been declared to be in default by the obligee.” Well documented project files will be a great asset to facilitate the surety’s initial investigation and especially if the matter goes to court. See BPPM Section 11.2 – Claims, Grievances and Other Disputes With Contractors, paragraph titled “Avoiding Disputes Through Proper Documentation.”

Indemnification Clauses – One of sureties’ concerns in any construction contract today is the increasingly broad and unlimited indemnity that contractors are contractually required to provide. If this indemnification is needed to satisfy political constituencies or due to other factors, clearly stating that the liability is to be covered through insurance and not the performance and/or payment bond would eliminate one potential obstacle that sureties sometimes raise as an underwriting road block.

Grantees should not assume that contractual indemnification, whereby the contractor agrees to indemnify and hold the grantee harmless from and against various risks, is an adequate substitute for bonds or insurance. These contractual promises are only as good as the contractor’s financial resources backing them. If the contractor fails to perform the contract, it is likely that the contractual indemnification provisions will be of little value. It is important, therefore, to ensure the contractor is bonded or has adequate insurance to support the indemnification clauses in the contract.

Resources – Following is a list of organizations offering information and resources related to surety bonds and insurance:

  1. Surety Information Office (SIO)
    5225 Wisconsin Avenue NW, Suite 600
    Washington, DC 20015-2014
    (202) 686-7463

    NASBP is the international organization of professional surety bond producers and brokers. NASBP represents more than 5,000 personnel who specialize in surety bonds for the construction industry and other types of bonds such as license and permit bonds.

  2. The Surety Association of America (SAA)
    1101 Connecticut Avenue NW, Suite 800
    Washington, DC 20036
    (202) 463-0600

    SAA is a voluntary, non-profit, incorporated association of companies engaged in the business of suretyship. SAA represents more than 500 companies that collectively underwrite the majority of suretyship and fidelity bonds in the United States.

  3. U.S. Department of the Treasury

    This website offers a free download of the Federal Treasury List (Circular 570), which lists all surety companies qualified to underwrite surety bonds on federal construction.

  4. The International Risk Management Institute (IRMI)

    The IRMI site offers articles and information on surety bonds and other risk management tools, along with contact information for risk management professionals and advisors. The Expert Commentary section includes more than 500 articles on a variety of risk management issues.

  5. The National Association of Insurance Commissioners

    The National Association of Insurance Commissioners site verifies that a surety company is licensed to conduct business in a particular state, and provides access to state insurance department websites.

  6. The Risk & Insurance Management Society

    The Risk & Insurance Management Society website offers a number of helpful tools to assess and manage risk.

  7. U.S. Small Business Administration (SBA)

    The SBA website offers information on the Surety Bond Guarantee Program, including free copies of forms required to be submitted for approval into the program and contacts for local SBA offices.

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8.2.2 Options

Requirement

§ 9.i of FTA Circular 4220.1E requires grantees to evaluate options:

  1. Evaluation of Options. The option quantities or periods contained in the contractor's bid or offer must be evaluated in order to determine contract award. When options have not been evaluated as part of the award, the exercise of the options will be considered a sole source procurement.

     

  2. Exercise of Options.
    1. A grantee must ensure that the exercise of an option is in accordance with the terms and conditions of the option stated in the initial contract award.
    2. An option may not be exercised unless the grantee has determined that the option price is better than the prices available in the market or that the option is the more advantageous offer at the time the option is exercised.

§ 7.m of FTA Circular 4220.1E states that:

  • Grantees shall not enter into any contract for rolling stock or replacement parts with a period of performance exceeding five (5) years inclusive of options.

Definitions

Option - A unilateral right in a contract by which, for a specified time, a grantee may elect to purchase additional equipment, supplies, or services called for by the contract, or may elect to extend the term of the contract.

Discussion

If you include terms in a contract that permit you to choose, at the time of award or later, quantities and items in addition to the base amount (options), you must include the price of those quantities or items in the price evaluation of the offer before selecting an apparent low bidder or determining the competitive range for negotiations. Otherwise you may not use Federal funds for the additional quantity without a separate, non-competitive procurement process (i.e., processing as a sole-source procurement).

If you include the price in the evaluation and later choose to order the additional quantities or items, you must again review the prices to ensure that they are advantageous.

Purpose

Options are most often used where there is uncertainty as to the quantity of goods and services you will require under a contract. Rather than planning a separate, later procurement when the requirement becomes certain, and incurring potential delays in delivery of the items because of the procurement lead-time to buy additional items, you may want to specify the option to buy more in your present contract. Options may also be appropriate when there is a need for standardization of parts or interchangeability and it is best to get proposers to bid competitively on the entire potential need at the time of the first procurement, rather than processing a sole-source add-on at a later date when the supplier will be under no competitive pressures.

Another common use of options is to fit a construction project to a budget. For example, a number of elective items such as additional landscaping, signage that could be purchased separately, and a higher quality, lower maintenance finish are specified as options in a construction solicitation. When the bids are evaluated, you can elect the base construction plus those options that can be procured with the available funds. Those options that are not purchased under the basic contract would be established as options and ordered when future funding becomes available. When this approach is used, the optional items are often called "deductible options". In this case, the stated bid amount already includes the options, and each option is associated with a deduction from the stated bid. This method generally caries the clear implication to the offerors that the cost of optional items will be evaluated in determining the successful bid. If you award the contract minus certain options, and then wish later to add those optional items back, you must comply with the requirement to make a new determination that the option prices are advantageous.

Best Practices

Whenever the option quantities are a significant portion of the total potential requirement, you should carefully consider whether a requirements or indefinite delivery type of contract would better suit your circumstances and needs. A requirements contract would provide for filling all of your requirements for certain supplies or services during a specified time period by placing orders with the contractor who wins the competition. Your solicitation and contract would state what you believe to be a realistic estimated total quantity but you would not be legally required to order that quantity. The contract would also state the maximum limit of the contractor's obligation to deliver as well as the minimum quantities that you may order under an individual order. The contract would contain competitively bid, fixed unit prices for the items being procured.

An indefinite quantity contract works like the requirements contract above except that you do not obligate your agency to fill all of your requirements for a particular supply or service from any given contractor.

Orders placed under a requirements or indefinite delivery contract are not treated as sole-source procurements and do not have to be evaluated like option orders and found to be advantageous from a price standpoint before being placed.

When options are justified by the degree of uncertainty, the difficulty of conducting a separate procurement in a timely manner, or the importance of a single source, then include in your solicitation a clear statement that the full option price will be included in your evaluation of prices to determine the lowest bid.

When options may be exercised at a time of your choosing over a long contract period, you may wish to reduce the offeror's risk by including a price escalation provision. Consumer price indices or other indices of prices germane to your suppliers may be obtained from the Bureau of Labor Statistics of the U.S. Department of Labor.

In the case of rolling stock and similar custom equipment for which you have an ongoing need, you may find that the advantage of having an option for identical equipment at a predetermined price outweighs the pricing difficulties introduced by options.

You may also benefit from a competitive procurement conducted by another transit agency by asking that agency to specify optional quantities for rolling stock you expect you may need in the same time frame as the base procurement. The advantage of specifying your options in the other agency's original solicitation, rather than piggybacking after the offers are submitted, is that you will take advantage of a competitive environment instead of a sole-source add on at a later date.

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8.2.3 Liquidated Damages

Requirement

§13 of FTA Circular 4220.1E states:

A grantee may use liquidated damages if it may reasonably expect to suffer damages from late completion and the extent or amount of such damages would be difficult or impossible to determine.

The assessment for damages shall be at a specific rate per day for each day of overrun in contract time; and the rate must be specified in the third party contract. Any liquidated damages recovered shall be credited to the project account involved unless the FTA permits otherwise.

Definitions

Liquidated Damages - Liquidated damages are a specific sum (or a sum readily determinable) of money stipulated by the contracting parties as the amount to be recovered for each day of delay in delivery of the product or completion of the contract. They do not represent actual damages but are established in the initial contract as a substitute for actual damages. They should represent, however, the most realistic forecast possible of what the actual damages are likely to be.

Discussion

Liquidated damages are a widely used method of ensuring contractors perform timely. These provisions are regularly used in construction contracts and sometimes in supply and service contracts.

Liquidated damages clauses are most appropriately used when:

When determining whether to use a liquidated damages clause, you will wish to consider such factors as:

Liquidated damages may be used for supplies, services and construction.

Best Practices

Rate Determination - The rate of liquidated damages must be a reasonable estimate to compensate for possible damages and not be so large as to be construed as a penalty. If it is construed as a penalty it will be held unenforceable. The most prudent approach is to formulate the liquidated damages on a case-by-case basis. You will find it useful to briefly document the calculation of the rate of damages each time you use liquidated damages in a contract and keep the documentation on file. Appendix B.3 is an example of a Liquidated Damages Checklist being used by a Transit Authority. 15 Once liquidated damages are included in a contract, you will be unable to recover actual damages in many jurisdictions.

Application - When it is determined that a liquidated damages clause will be included in the contract, the applicable clause and appropriate rate(s) must be contained in the solicitation. For construction contracts, the rate to be assessed can be for each day of delay, and the rate typically, at a minimum, covers the estimated cost of inspection and superintendence for each day of delay in completion. If you will suffer other specific losses due to failure of timely completion, the rate can also include an amount for these items (for example, the cost of substitute facilities or the rental of buildings or equipment). The contract may include an overall maximum dollar amount or period of time, or both, during which liquidated damages may be assessed. This will help ensure that there is not an unreasonable assessment of damages.

It is important to note, that in your establishment of liquidated damages, you may use whatever consequential damages may result from a failure to deliver or perform, even damages for items which are not within the scope of the grant. However, it must be understood that all liquidated damages collected from the contractor must be credited to the grant and treated as a reduction to the allowable costs of the grant, in accordance with § 13 of FTA Circular 4220.1E. This will have the effect of making the funds collected (or the contract price reduction taken) available to the grantee for other activities/costs which are within the scope of the grant. In other words, while you may use the incurred cost of activities which are not within the scope of the grant to estimate and establish liquidated damages amounts, you will not be able to directly apply the collected damages to those impacted activities unless they are within the scope of the grant. The funds returning to the grantee must be credited to the grant where they become available for other activities which are within the scope of the grant.

Collection - If your agency has a financial obligation to the contractor under the contract, you may simply credit the amount of liquidated damages due from the contractor to your agency as payment by your agency of part of its remaining obligation to the contractor. Some contracts in which liquidated damages are particularly critical contain retainage provisions which are activated when liquidated damages are anticipated. In most jurisdictions you may also have a right of offset to credit the liquidated damages as payment to the contractor under other contracts it holds with your agency. If you decide to pursue this approach be sure you comply with the FTA approval requirements in FTA Circular 4220.1E concerning the crediting of the project account with the amount of the liquidated damages. Finally, like any claim, you may settle your claim for liquidated damages in exchange for credit on future purchases such as spare parts or other items within the scope of the contract.

Excusable Delay - Contracts with liquidated damages clauses should also contain excusable delay clauses. These typically provide that if the contractor is delayed by certain specified causes that are beyond the contractor's control (e.g., weather, strikes, natural disasters) then the resulting delay is excused and liquidated damages will not be assessed. Whenever a contractor incurs liquidated damages, the precise counting of each day's delay based on these conditions directly affects the sum paid; therefore, it is worth making the calculation of delay in your contracts as clear as possible. When excusing construction delay caused by rainfall beyond normal, for example, you may specify in the contract what normal rainfall is and how the number of days of greater than normal rainfall will be computed.

Substantial Completion - Liquidated damages are not assessed after the date on which the work is substantially completed. Substantial completion is usually defined as the time when the construction site or the supplies delivered are capable of being used for their intended purposes. 36 There is no predetermined percentage that will establish substantial completion and the decisions place more emphasis on the availability of the work for its intended use than on the use of formulas as to the percentage of completion of the work. 37

8.2.3.1 Relationship with Default Termination

Discussion

When a contract containing liquidated damages is terminated for default the contractor will be liable for both liquidated damages and the excess costs of reprocurement (i.e., the amount by which the replacement contractor's price exceeds the terminated contractor's price). You have an obligation to the defaulting contractor to mitigate both his liquidated damages and the excess reprocurement costs. This means that you need to not unduly delay your termination for default action once the contractor is in default, and you will need to take expeditious action to resolicit bids/proposals for the supplies or work not performed. The time period for the liquidated damages will be the time between the contractually required date of completion of the defaulted contract and the actual completion date of the new contract assuming there is no unreasonable delay in awarding the new contract. Contractors will not be assessed liquidated damages for any period of delay caused by your agency. This reprocurement must not only be done expeditiously to mitigate liquidated damages but must also be in accordance with sound procurement procedures, producing a fair and reasonable price, so as to mitigate excess reprocurement cost damages. The contract to reprocure should be awarded competitively, with bids/offers solicited from a sufficient number of competent potential sources to ensure adequate competition.

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8.2.4 Intellectual Property Rights

8.2.4.1 Disclosure of Trade Secrets

Definitions

Trade Secret - A plan, process, tool or other intellectual property which is used in some process of commercial value and which is known to a group of individuals who have been intentionally restricted by the trade secret owner. The key attribute of a trade secret is that the owner has diligently and effectively restricted knowledge so that its competitors cannot obtain the information.

Discussion

If you gain access to trade secrets either to evaluate the offer or to use and support use of the product or service, you may undertake an obligation to protect the trade secret. More particularly, there may be a direct conflict between the supplier's interest in the trade secret, and sunshine laws that require you to disclose any information upon request. By not retaining the proprietary documents or by use of intermediaries, you may be able to reduce the potential for a violation of trade secrets.

The laws permitting public access to government data vary by state. It is helpful to contractors to disclose your obligations under the laws in any solicitation document which calls for you to receive confidential information from a supplier. Consideration for the suppliers' legitimate interests will be an important factor in their continuing willingness to participate in your programs.

Best Practices

Return Data - One method of accommodating the supplier's interest in the confidentiality of the data is to return all the documents to the supplier. This is particularly feasible at the conclusion of a procurement in which you have been evaluating known trade secrets.

Inspect Data Off Site - If concerns about trade secrets and confidential information are particularly acute, you may find it advantageous to visit the contractor's premises and inspect the information or materials there, returning with only the minimum necessary data in recorded form.

Third Parties - Another way to resolve the conflict is to use a third party (e.g., one of your advisors) to evaluate the data or retain the data. The possession of data by an agent of a public agency is sometimes also subject to action under public access laws. However, this method is common in software licensing agreements, where a trustee retains confidential source code data until specified conditions occur under which the supplier has agreed that the data can be disclosed to the public agency.

Opportunity to Defend - A final strategy is to incorporate into your contract clauses a provision granting (or requiring, depending on the circumstances) the owner of the trade secret the ability to defend your agency in any action against your agency to force disclosure. Often, this takes the form of the contractor indemnifying your agency for your cost in defending against disclosure, or, at your agency's option, the contractor's own attorneys undertaking the defense.

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8.2.4.2 Contract Work Products, Patents, and Copyrights

Requirement

Appendix A.1 of this Manual contains the requirements for intellectual property rights created under research and development contracts. These requirements apply only where a primary purpose of the contract is research or development.

Discussion

In research and development contracts, you are required to obtain certain rights in the intellectual property created for FTA, and also, incidentally, to obtain indemnification for FTA in case the contractor violates another's rights. A clause satisfying these requirements is contained in Appendix A.1.

In contracts that are not primarily research and development contracts, you may also consider including portions of these provisions for your agency's own benefit. You may consider this where intellectual property (e.g., computer software) will be developed with your funds as part of a larger effort which is not developmental.

In contracts that involve the use but not the development of intellectual property (e.g., the use of patented equipment) indemnification against the contractor's violation of another's rights may be advantageous.

Best Practices

Indemnification - The indemnification provision, in case the contractor violates the intellectual property rights of a third party, (e.g., reproduces copyrighted material or incorporates a patented device in your equipment) is a useful provision wherever intellectual property is involved. Even though you may have little knowledge of the intellectual property the contractor is using, the intellectual property owner may name you in the suit and you may have more funds to pay damages than does your contractor.

Secure Support Rights - When you take delivery of intellectual property which you will need for your program, you will also need to carefully anticipate and define your agency's rights to use, modify, or disseminate the material to others. If licenses control the software or patents control the components of your vehicles, you may wish to obtain the right to reproduce the intellectual property for your agency's own internal use, without the right to resell it or distribute it outside your agency. Whether the contractor is willing to grant that right depends on the practices in the industry, the competitive value of the intellectual property, and the contractor's policies. If a practice is not well-established, the matter may have to be addressed in pre-bid discussions or in negotiations. Where the contractor is unwilling to grant access except through additional purchases, the contractor may be willing to place the intellectual property in a trust arrangement whereby the trustee would grant you access in case of the contractor's demise or inability to support your ongoing use of the product.

Evolving Law - The law of intellectual property, particularly as it pertains to information technology, is evolving rapidly. If you are involved in procuring software or other intellectual property with any substantial value, you may wish to have attorneys who are current in this area review your contract provisions.

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8.2.5 Termination

Requirement

§ 15.b of FTA Circular 4220.1E requires grantees to include provisions in their contracts and subcontracts that allow for:

b. Termination for cause and for convenience by the grantee or subgrantee including the manner by which it will be effected and the basis for settlement. (All contracts in excess of $10,0000.)

Discussion

It is sometimes necessary to end a contractual relationship prior to the completion of the work called for in the contract. In the public sector, when that relationship is ended because of a problem with the contractor's compliance with one or more terms of the contract, that termination is most commonly referred to as a termination for default or a termination for cause.

When the public agency decides to end the contract for a reason other than the default of the contractor, that termination is most frequently referred to as a termination for the convenience of the public entity.

If you do not plan for the possibility of one or the other of these events occurring in your contractual relationships, through the careful drafting of clauses which define the rights and obligations of the parties under a default and convenience situation, the consequences can be substantial from a monetary and contract performance standpoint.

Because of the nature of the different types of contracts, you may want to consider having different termination clauses for fixed price as opposed to cost reimbursement contracts.

Because of the different nature of the product or services being bought, you may want to have different termination clauses for construction, supply, and services contracts, including professional services.

You may want to have an abbreviated termination clause for contracts below a dollar threshold (say $100,000). Likewise for purchase orders, you will need to decide how sophisticated you want these to be.

You need to address partial as well as complete terminations.

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8.2.5.1 Termination for Convenience

Discussion

The development of clauses allowing the government to terminate contracts for its convenience was a necessity growing out of the major wars and the need to end the large number of procurement contracts once the wars were ended. Without such clauses the government could terminate its contracts but such action constituted a breach. This meant having to pay profits to contractors on unperformed work (anticipatory profits). Thus the need for and the development of these convenience termination clauses, which give the government the right to terminate without cause and which limit the contractor's recovery of profit based upon the work actually performed up to the point of termination.

Best Practices

You will note that the FTA Circular requires a clause which defines "the manner by which the termination will be effected and the basis for settlement". Appendix A.1, Model Contract Clauses, section 21, contains model clauses with suggested language for both convenience and default terminations. These model clauses are very broad in their definition of the basis for settlement. For example, while the clauses clearly limit the contractor's profit to work actually performed, and they commit to pay the contractor its costs, they do not define how those costs will be determined, i. e., the cost principles which will be used to determine allowable costs. It is highly recommended that you supplement these clauses to stipulate the cost principles which will be operative in the event of a termination, and which will determine which costs are allowable and which are not. By using an objective and clearly defined method for determining allowable costs you will avoid problems which may otherwise arise in the negotiation of final costs.

The American Public Transit Association has published a procurement manual with a Termination for Convenience Clause referencing Part 49, Termination of Contracts, of the Federal Acquisition Regulations (48 CFR 49) as the basis for settlement of claims. 38 Another approach is to reference the FAR, Part 31.205, which deals very comprehensively with Selected Costs and their allowability. 39

The APTA approach of referencing FAR Part 49 as the basis for settlement of terminations for convenience would seem to be a very effective solution to the problem of defining the basis for settlement. Part 49.113 of the FAR incorporates Part 31, Contract Cost Principles and Procedures, thus covering all the normal cost issues which arise on cost- type contracts, but going beyond the normal to define those costs and issues peculiar to terminations in the rest of FAR Part 49. The termination clauses themselves may be found in FAR Part 52, and you will see that they refer to both Part 31 and Part 49 of the FAR in order to define the cost standards to be used for the settlement.

Suggested termination clauses are also contained in the ABA's Model Procurement Code for State and Local Governments and implementing suggested regulations. 40

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8.2.5.2 Partial Terminations

Discussion

Your Termination for Convenience clause must include a provision allowing for a partial termination of the work, in which case the contractor must continue with the unterminated portion. The Federal government clause at FAR 52.249-2(k) allows the contractor to file a proposal for an equitable adjustment of the price(s) for the continued portion of the contract. Note that the model clauses in Appendix A.1 do not address this issue of an equitable price adjustment for the continued work, and you should consider this provision as a matter of equity to the contractor. This price adjustment would allow the contractor to recover those costs of a fixed nature which he would have recovered in the prices of the terminated work, had there been no termination. This is not anticipatory profit but recovery of fixed overhead. 41 An example might be the rental of a facility whose costs would have been recovered over all the deliverable units of the original contract but which can only be recovered over a smaller number of units on the partially terminated contract, assuming you allow a price adjustment for the unterminated portion of the contract.

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8.2.5.3 Termination for Default

Discussion

Fixed Price Supply Contracts - If you are using a default termination clause similar to the federal clauses, the termination is likely to have the following effects:

Services and Construction Contracts - Some of the above consequences for supply contracts are also applicable to services and construction contracts but a contractor furnishing services or construction will be entitled to payment for work that was properly performed prior to the default termination. Under supply contracts the contractor will not be paid costs for producing supplies not accepted, whereas services and construction contractors can recover costs because your agency will be seen as having benefited from the contractor's partial performance in the services rendered or the improvements made to your property.

Best Practices

Defining "Default" - The clause must define what "default" means -- i.e., failure to deliver the supplies or perform the services within the time specified in the contract, failure to make progress so as to endanger performance of the contract, refusal or failure in a construction contract to prosecute the work or any separable part within the time specified in the contract.

Excess Reprocurement Costs - The model contract clauses in section 21 of Appendix A.1 include default termination clauses for various types of contracts. You will need to decide if you wish to hold the contractor responsible for excess reprocurement costs and include an appropriate provision in your clause. Only the construction contract termination clause [21.(h)] in Appendix A.1 includes excess reprocurement costs.

The APTA bus procurement Guidelines at § 2.2.6.2 (see note 20 in this chapter) include a provision for excess reprocurement costs for "similar supplies or services."

Excusable Reasons for Non-performance - The clause typically defines acts or events that will excuse the contractor's default -- i.e., causes beyond the control and without the fault or negligence of the contractor, such as acts of God, unusually severe weather, etc.

Conversion to Convenience Termination - If you terminate a contract for default, and it is later determined that the contractor was not in default or that the default was excusable, it would be very helpful if your default termination clause specifically stated that the termination will be treated as if it had been issued for the convenience of the agency. This will act to limit your liability for a wrongful termination by invoking the procedures of the convenience termination clause, thus precluding the contractor from recovering anticipatory profits. The default termination clauses in Appendix A.1 contain this stipulation.

Notice Provisions - The clause typically defines what kind of written notices, if any, must be furnished to the contractor prior to the termination taking place -- i.e., cure and show cause letters. Within a specified time after you notify the contractor in writing to cure the deficiency in performance, the contractor has the opportunity (without jeopardy of immediate termination) to show cause why it should not be terminated; it may accelerate performance, present new information, or offer additional promises. If the contractor does not successfully show that it should not be terminated, your agency may then proceed with a termination for default. If your clause grants the contractor a cure period, you may wish to specify exceptions such as where default is necessary to take over the work in the interest of public safety.

Acronyms

ASBCA - Armed Services Board of Contract Appeals

BCA - Board of Contract Appeals

IBCA - Department of Interior Board of Contract Appeals

PSBCA - Postal Service Board of Contract Appeals

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Chapter Footnotes

1- Although the relevance of that law will vary from state to state, most individual states will not have interpreted federal statutes and clauses and will frequently look to the federal common law, as interpreted by the Comptroller General of the United States and the various boards and courts, for guidance in interpreting that law and those clauses.

2 - The Model Procurement Code and recommended Regulations may be available in your local public library or may be purchased from the American Bar Association. It is recommended that you contact the following for further information: Member Services, P.O. Box 10892, Chicago, Illinois 60612-0892.

3 - Act of March 3, 1931, 46 Stat. 1491, as amended; codified at 40 U.S.C. §276a et seq.

4 - For a thorough discussion of the labor standards for contracts involving construction, see FAR Subpart 22.4

5 - See generally, FAR §22.404-2(c) for discussion of the different types of construction.

6 - In a Federal Register Notice of June 14, 1996, the Chief, Branch of Construction Wage Determinations advised that wage determinations issued under the Davis-Bacon and related Acts are available electronically by subscription to the FedWorld Bulletin Board System of the National Technical Information Service (NTIS) of the U.S. Department of Commerce. A telephone contact is (703) 487-4630.

7 - The same Notice advised that hard-copy subscriptions may be purchased from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 with a telephone contact at (202) 512-1800.

8 - The cost of the hard-copy subscription (between $440 and $830 per volume) is a minuscule investment for your project library when considering the contractual impacts of the wage determinations which will be discussed below.

9 - The procedures to be followed in requesting these determinations are found in 29 CFR Part 1 and in FAR §22.404-3.

10 - In this case, the grantee has the discretion, depending upon the terms of their solicitation documents, to either award to the low bidder at the price bid, or to equitably adjust the contract price for any increased or decreased cost of performance resulting from any changed wage rates.

11 - Rules relating to expiration of wage determinations are discussed in detail at FAR §22.404-5.

12 - If award of the contract is not made within 90 days after bid opening, the modification becomes effective unless the Wage and Hour Division Administrator extends the 90 day period. If an extension is not granted, the modification is treated the same as a new wage determination and the same procedures as discussed above apply.

13 - Rules relating to actions to be taken by the contracting officer in the event wage determinations are modified may be found in FAR § 22.404-6.

14 - The Miller Act does not apply to grantees. Bonding requirements for grantees are prescribed in the common grant rule, 49 CFR §18.36(h).

15 - The National Association of Surety Bond Producers (NASBP) web site address is: http://www.nasbp.org..

16 - An unforeseen bankruptcy by the contractor is especially troublesome, in that the bankruptcy court could freeze the funds committed by the LOC, rendering the LOC of no value to the grantee. The grantee must be diligent to monitor the contractor’s condition, and call the funds under the LOC if financial trouble is expected. There is no such danger with surety bonds.

17 - It is not until one goes to the 20% level that premium rates may change.

18 - This appears to be true for bus manufacturers in the current business environment.

19 - To locate a state insurance department contact the National Association of Insurance Commissioners at www.naic.org. See also the U.S. Treasury List at www.fms.treas.gov/c570/index.html.

20 - The Treasury List may be downloaded on the Internet at www.fms.treas.gov/c570/index.html. The Treasury List identifies the various states where the listed bonding companies are licensed and the state insurance departments with their phone numbers.

21 - For more information about the SAA’s Model Contractor Development Program, contact the Surety Association of America at 202-463-0600 or their Web site: www.surety.org.

22 - For this and other materials, contact the Surety Information Office at 202-686-7463 or their Web site: www.sio.org.

23 - Information and prices are available at www.ambest.com.

24 - http://dunandbradstreet.com/us.

25 - www.fitchratings.com.

26 - www.moodys.com.

27 - http://www2.standardandpoors.com/portal/site/sp/en/us/

28 - www.weissratings.com.

29 - The language in this section has been amended from prior versions of the circular to better explain that FTA will accept a local bonding policy that meets the minimums of paragraphs a, b, and c but that a policy that does not meet these minimums still may be accepted where the local policy adequately protects the Federal interest. Grantees who wish to adopt less stringent bonding requirements generally, for a specific class of projects, or for a particular project may submit the policy and rationale to their regional office for approval.

30 - See FTA Dear Colleague Letter C-01-04, dated Jan. 20, 2004 – Performance and Payment Bonding Requirements.

31 - Transit agencies procuring rolling stock tend to ask for ten year warranties on parts.

32 - At www.surety.org, click on “About the Industry,” then “Bond Authenticity Program.”

33 - A conditional letter of credit may require some burden of proof by the owner that the contractor has failed to perform before the bank will pay on the letter of credit. Most letters of credit are irrevocable, which means that both parties must agree to any changes to the letter of credit. Changes must be documented by an amendment signed by both parties.

34 - See BPPM Sections 2.4.4.2 – Advance Payments and 2.4.4.3 – Progress Payments where adequate security for these payments is discussed.

35 - Bay Area Rapid Transit District (BART) Procurement Manual, Rev 4, July 20, 1994, Attachment Y.

36 - Theon v. United States, 765 F.2d 1110 (Fed. Cir. 1985); Central Ohio Bldg. Co., PSBCA 2742, 92-1 BCA, paragraph 24,399.

37 - Electrical Enters., Inc., IBCA 972-9-72, 74-1 BCA, paragraph 10,400.

38 - American Public Transit Association, 1201 New York Avenue, N. W., Suite 400, Washington, D. C. - Standard Bus Procurement Guidelines § 2.2.6.1, January 1997. Phone: (202) 898-4089 to order copies.

39 - Washington Metropolitan Area Transit Authority - Procurement Procedures Manual § 1311.2, Dec. 1994.

40 - See the discussion of how this publication may be obtained in Note 3. under Section 8.1.1.

41 - Wheeler Bros., ASBCA 20465, 79-1 BCA § 13,642.

42 - John Cibinic, Jr. and Ralph Nash, Jr. Administration of Government Contracts. Third Ed. Washington, D.C.: George Washington University, 1995.

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