Performance and Payment Bond Lawyers

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 What are Bonds?

A bond is a debt security similar to an IOU. Companies issue corporate bonds when they need to raise money. Bonds work by paying back a regular amount to the investor. For example, a $25,000 bond with a 10-year maturity date and a coupon rate of 5% would pay $1250 a year for a decade, after which the bond’s original $25,000 face value is returned to the investor. Unlike buying stock in a company, buying a corporate bond does not give you ownership of the company.

What are Performance Bonds and Payment Bonds?

Performance and payment bonds are bonds intended to protect their issuer (usually a bond company or a bank) in a construction project against failure of performance or payment by a contractor or subcontractor. Hence, performance and payment bonds are also referred to as construction bonds.

Construction projects involve a lot of risks. Delays and defects can lead to massive costs for developers and construction companies. Performance bonds allow those investing in construction projects to protect themselves from this risk.

Performance bonds are commonly used as a sort of guarantee that a large project will be completed as outlined in a construction contract—contractors needing a performance bond work in construction or service industries like bus drivers and janitors.

The project’s owner will require the bond as protection for the specified project. A performance bond benefits the lender by providing a way to pursue financial compensation if the contractor falls short of performance requirements. A contractor may fail to complete the building project because they went bankrupt in the middle of it. In such cases, the client would be protected by the performance bond being issued in their favor.

On the other hand, a payment bond provides security that the contractor or subcontractor will promise to pay their workers, material suppliers, and outside subcontractors for the cost of materials and labor. A payment bond is a form of surety bond issued to guarantee that all of the contributors to a construction project will be paid for their work and materials.

Performance and payment bonds were initially created to address the high failure rate in construction projects sponsored by the federal government. Today, performance and payment bonds are most commonly used in real property developments, such as the building of houses or other types of residences (e.g., an apartment complex).

How Do Performance and Payment Bonds Work?

As previously mentioned, a bond is a written obligation to pay a fixed monetary sum on a specific event or condition happening or non-occurrence. In the case of performance bonds, the specified event that may trigger compensation is when a project stops in the middle of the construction and is never completed. As for payment bonds, the specified event is typically the non-payment of workers or other parties necessary to complete the project.

How these bonds operate is that a contractor will typically purchase a bond from an insurance company and then transfer the cost to the party who hired them (i.e., the owner of the construction project). In return, the insurance company will provide the project owner with monetary compensation for losses if the project is not completed or the parties are not properly paid.

As such, performance and payment bonds focus on protecting the owner of a construction project rather than on the contractor or the subcontracted workers. Performance and payment bonds are normally costly for contractors since they must take out a separate bond for each construction job.

Bonds are most commonly issued for larger construction projects, ranging from $25,000 and up. A contractor that a bond company has already approved is usually considered more reliable than non-bonded construction operations.

What Happens If a Contractor Defaults on a Construction Project?

If a contractor suddenly stops working on a construction project and does not finish it, the property owner will have several options to get it done. For instance, most performance bonds will give the owner four choices, including:

  • They can finish the rest of the project using a “completions contractor,” which is a party that specializes in completing unfinished construction projects
  • They may hire an entirely new contractor who will then contract directly with the project owner to finish the job
  • The owner will be allowed to complete the project themselves, with the insurance bond company paying the remaining costs.
  • In a non-payment situation, the owner of the project can sue the contractor for any losses so that they may recoup the costs of wages and materials

Performance Bond Disputes

Construction disputes are quite common, despite the best intentions of contractors, consultants, and owners. Disagreements regarding the scope of work, design issues, and alleged defects cause most disputes. These disputes can be costly for everyone involved, leading to delays, protracted lawsuits, and construction bond claims.

The contractor should also be aware of and adhere to the dispute resolution mechanism built into the contract. Most of these do not permit a suspension of work while the dispute is resolved. Stopping work almost always results in a claim that cannot be defended.

Performance bond disputes can involve many different legal issues. Most of these have to do with a breach of the construction contract and involve issues like:

  • Non-performance of duties
  • Unauthorized assignment of contract duties
  • Fraud with regards to performance bond agreement or with the project contract itself
  • Illegal activity associated with the project (such as hiring undocumented workers)

Do I Need to Hire a Lawyer for Performance Bonds and Payment Bonds?

While hiring a lawyer for issues related to bonds is not always necessary, it can be beneficial to have legal representation in certain situations. Construction projects can be very expensive and complex ventures. They often involve several parties, sometimes more than five or six, including a project owner, a general contractor, an insurance bond company, a handful of subcontractors, and material suppliers. An attorney can help identify the parties and make the complex nature of bond claims much easier for you to understand.

If the contract has not yet been signed, it would be wise to consult with a local business attorney if you feel that bonds are needed to complete your project. An experienced business attorney can help protect your interests, and they can draft a contract that outlines bond provisions, which may provide you with better benefits than you could obtain on your own.

Once the contract is signed, a financial lawyer with experience in bond law can provide valuable guidance and representation in case of a breach of duties or default and help ensure that your rights and interests are protected throughout the process. They can also advise you on the legal implications of a claim and assist you in navigating that complex legal process. It’s essential to seek professional advice as soon as possible in case of any claim related to a bond so that you can take the necessary steps to protect your interests.


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