You’ve heard of “Performance and Payment.” In this article let’s discuss the Payment part because this obligation affects more people and is the most frequent area of claim for sureties.
The old fashioned name for these is a “Labor and Materialmen’s Payment Bond.” The name says it all: These bonds guarantee that suppliers of labor and material will receive their proper payment. We know labor and material suppliers want to be paid, but why are these bonds required on public work and other contracts?
Why Obligees Require Payment Bonds
Scenario: A company is building a new office facility and hires a general contractor. The GC then hires a paving subcontractor to put in the parking lot. If the paver is not properly paid, they may be entitled to file a Mechanics Lien against the property. He can’t take back his labor and paving material, so the court allows the lien to be filed to protect his interests until there is a legal resolution.
The problem with liens is that the company may have paid the GC properly. It could be the GCs fault that the paver isn’t paid, yet the company is being penalized. With the lien in place, the company no longer has a clear title. If they want to sell the property, they may have to pay the paver directly even though they already paid the GC! The payment bond is a source of financial recovery for the paver so there is no need to file the lien and therefore it protects the interests of the obligee as well.
Who Are Payment Bond Claimants?
As the name says, potential claimants are “suppliers of labor and material.” Other parties that have a direct interest in the contract are also included.
Let’s use our GC and paver situation as an example. The GC obtains the Performance and Payment Bond. The paver is a subcontractor to the GC and would be entitled to make a bond claim. The paver’s asphalt supplier is directly supplying materials and can also make a claim.
If the paver hires a striping contract to mark up the parking lot, they are covered. However the paint supplier to the striping contractor is not, legally they are too far removed from the prime contract. They are working for the sub-subcontractor and are three steps down. Here’s the flow:
- GC (Prime contractor with owner)
- Paver (Subcontractor)
- Striping contractor (Sub-subcontractor)
- Paint supplier (supplier to Sub-subcontractor)
Remember that the payment bond does not protect parties that are more than two steps down.
Other key points needed for a valid claim:
- To be covered, materials must have actually gone into the project, not just be delivered to the site.
- There is a time limit for after which claims cannot be filed.
- The form and proof of claim must be correct.