Do The Right Thing / Get Screwed Anyway: Secrets of Bonding #144

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You performed professional quality construction work, billed the general contractor and got paid.  Done deal. Now, three years later you get a letter from some attorney demanding that you return the funds!  Are they insane?  This is a horrible threat that you cannot avoid.

Situation:

  • Spiffy Construction, Inc. was a subcontractor on an unbonded project. They billed their client “Gigantic General Construction” for work completed: $262,800.
  • The invoice was reviewed and approved. Gigantic sends Spiffy a check for $262,800. Awesome!
  • Spiffy deposits the check. All the funds are used to pay bills and upgrade equipment.
  • The next monthly requisition is held up and eventually never paid. Gigantic then declares bankruptcy.
  • After incurring legal expenses, Spiffy is ultimately forced to write off this receivable. It has a severe impact on the company – but they manage to survive.
  • Three years later Spiffy receives a letter from an attorney demanding that they return the last payment. The attorney says failure to return the funds can result in a “preferential lawsuit.”  What the heck is going on?!

This is not an imaginary scenario.  It is based on true facts.  This happens all the time and can be very bad for the defendant (Spiffy aka the creditor.)

What is a Preferential Payment?

When a business declares bankruptcy, the court reviews payments made to creditors of the company in the period immediately preceding the bankruptcy to determine if any were (in the court’s opinion) inappropriate. They want to determine if any creditors were given extra favorable “preferential” treatment at the expense of others.

In our example, Spiffy was paid less than 90 days prior to the BK declaration, so the trustee is attempting to claw back the funds to be distributed as THEY see fit.  Keep in mind, everything that happened prior to the demand letter was normal and legal.  Spiffy did the work, billed the GC and got paid.  Period, end of story. However, it’s not be the end of the story…

The trustee will attempt to prove that the payment received was more than would have been allowed if made through the bankruptcy proceedings. That’s bad because Spiffy collected the full amount they were owned, but in a BK, creditors are typically paid less than 100%.

Spiffy is now forced to pay a second round of legal fees to defend this claim. If they lose, they may be required to return the last payment they received. Add this to the final payment they never received and had to write off.  This situation keeps getting worse. 

What are some remedies available to companies caught in this untenable position?

Examples of Defenses to a Preferential Payment Claim

  • Substantially Contemporaneous Exchange – this means the payment and delivery of product or services happened at the same time, such as a COD payment. A payment by check may also be included in this category if it cleared promptly.
  • New Value – If a $100 account receivable was collected during the preference period, then an additional $75 AR was billed but not received, the preference amount could be claimed to be only $25, not $100.
  • Floating Lien – This is a creditors security interest in present or acquired assets such as accounts receivable. The creditor would need to show that their collateral position has not improved during the preference period.
  • De Minimus – Means debts that are too small to include in the BK analysis.
  • Ordinary Course of Business – There is a history of accounts receivable showing invoices and payments with that debtor / client. The amount owed was in line with prior transactions.

Conclusion

The last example, “Ordinary Course of Business” may be the most natural response for Spiffy Construction and other contractors.  However, in order to raise this defense, the creditor must have appropriate records.  Copies of contracts, invoices, AR schedules and bank statements are critical documents.  Good record  keeping is needed with an efficient means of storing and retrieving the data, in this case three years after the original transaction.  Without it, defendants like Spiffy have little chance of defending such claims.

Sometimes you do the right thing, but you get screwed anyway.  At least now you know about the danger, protective actions you can take and potential legal defenses.

Reminder: We are not attorneys and are not intending to give legal advice.  For that, call your ATTORNEY.  For a bond, call us!  856-304-7348

Insurance Agents and Contractors: Love the “Secrets” articles? You’ll really love it when we solve your tough bonding problem! We have the markets and the know-how to succeed even when others have failed.  Call us with your next surety bond need.  We guarantee a same day response.  856-304-7348

Not available in all states.

Secrets of Bonding #143: Surety Bonds and Brain Surgery

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Your doctor says “You have a problem.  We need to call in a specialist.” How do you determine who to call? What do you expect from the specialist? The choice could not be more critical.

We are faced with important decisions every day.  And there are plenty of people trying to influence the outcome.  You need the skills to sort through the “BS” and make the choice that is most beneficial to you. 

Here is an example you have seen in many different forms:

“Our doctors have over 25 years experience”

What exactly does that mean?  You could select that firm and get a doctor with ONE year of experience.  They may have 25 doctors, each with one year in the saddle. Ugh, how misleading!

Another example:

“Dr. Mavromoustafakis has specialized in brain surgery since 1980.”

OK, Dr. Mavromoustafakis  has over 25 years experience as a brain surgeon.  See the difference?

Next question: Does the difference matter?

To answer that, think about why expert help was required.  If there is a special need, and an experienced, expert problem solver is desired, then… Yes! 

That’s how it works with brain surgery and also surety bonds.  Some situations are more complicated.  They require unique solutions and strategies.  The key may be to know a special underwriting technique, or a special underwriter.  The surety business is all about relationships. So your best problem solvers have many years under their belt and deep relationships with the right underwriters.  They deal with them every day.

Conclusion
Surety Bonds: They’re not brain surgery.  But when you need expert assistance, real experience does matter. Pick up the phone and take advantage of our long devotion to this one product. 

Steve Golia’s personal surety bond expertise dates back to 1972 (started in grade school.) Solutions to every problem you’ve seen, and some you haven’t.  Our experience is the key to your success and our service is the best.  We have the market access and expertise to handle bonding problems large and small. 

When you need a bond, call the Pros!  856-304-7348

Insurance Agents and Contractors: Love the “Secrets” articles? You’ll really love it when we solve your tough bonding problem! We have the markets and the know-how to succeed even when others have failed.  Call us with your next surety bond need.  We guarantee a same day response.  856-304-7348

Not available in all states.

Secrets of Bonding # 142: Make Bid Bonds Great Again!

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Brokers protected.  Contractors welcomed.

You used to love them.  They were so easy.  Now they are in dollar amounts and percentages, sometimes with a limited maximum value.  They can be electronic or digital.  Sometimes a letter is required instead.  Sometimes nothing is required instead! There may be a single or annual charge for it or maybe it is free! It’s outta control…

So here is your chance to catch up with everybody’s favorite: The fun and fascinating world of Bid Bonds.

The Basics
These instruments accompany a contractor’s proposal during the acquisition process for a new project.  This is routine on public work, such as federal state and local municipal contracts.  The procedure may also be used on private projects at the contract owner’s discretion.

The bond guarantees that, if awarded, the bidder will sign the contract, furnish the required Performance and Payment Bond, and commence with the work – or – pay the difference between their bid and the next higher bidder (subject to the maximum dollar value of the bid bond.)

Cost
Usually free although the surety is entitled to charge for them.  Typical charges could be an annual bid bond service fee or a per bond charge.

Underwriting
The decision to issue the bid bond is based on the underwriter’s willingness to provide the related P&P bond, because that is the real money transaction. The decision is NOT based on the dollar value of the bid bond.  Rely on the fact that the underwriter will not provide the bid bond if they do not feel they can support the final bond.

Bid Spreads
If the bidder is more than 10% below the next bidder without a plausible explanation (we have a special machine,  already have materials, are already working next door, we’re super fabulous, etc.) the surety could decline the final bond, resulting in a bid bond claim.

Alternative Forms of Security
In addition to a bid bond, proposals may also be secured using a cashier’s check or irrevocable letter of credit, depending on what the project owner (Obligee) is willing to accept.

Percentages
The Invitation or Bid Solicitation describes the proposal requirements.  It will state if a bid bond is required and the amount.

The bond value is often expressed as a percentage. Example “20% of the attached proposal amount.”  This is convenient because the underwriter doesn’t want to know the actual bid amount (to preserve the bid confidentiality).  It is the best way to express the exactly correct amount when typing the bond in advance.

Capped
Because the percentage bond actually has an unknown dollar value at the moment it is executed, language is sometimes added establishing the most it can be worth (to prevent a wildly high amount the underwriter didn’t expect).  Example, “10% of the attached bid, not to exceed $100,000.”

Fixed Penalty
“Bond Penalty” is the term used to express the bond dollar value.  A fixed penalty bond has a stipulated amount, regardless of the bid.  Example, “Maximum bid bond amount required: $20,000.”

Surety Letter
Some owners choose to require a letter from the bonding company, but no bond. Federal projects are handled this way at times.  The letter talks about how much they love the client and the contracts they are willing to bond.

Consent of Surety
This letter is the surety’s written promise to issue the P&P bond if the contract is awarded.

Electronic
A scanned copy (pdf) of the executed bond may be acceptable for an online bid.

Digital
Some state departments of transportation use this.  The surety registers with the obligee in advance and the bid bond is “filed” online using a unique identification number.

No Free Lunch
If you default (cause a bond claim), the surety will come after the contractor, it’s owners and spouses for recovery.  Remember: Bonds are not insurance.

Funky Land
Now some of the weird stuff:

  • You may encounter a bid bond requirement, but no final bond (P&P bond) to follow
  • Can also have the opposite: No bid security required but a final bond is needed
  • No! You are not required to use the same surety for the bid and final bonds – although the bid bond provider fully expects to write the final bond and may hunt you down and kill you. (Just kidding!!!)
  • Yes! If you obtain a bid bond under the promise to provide collateral, you are allowed to get the final bond from a different surety that is not demanding collateral. (But you face the hunt and kill thing again)
  • When you acquire a project using a Consent provided by ABC Surety (their promise to provide the bond upon award of the contract), you are not prohibited from taking the final bond from XYZ Surety. However, good protocol dictates that you remain loyal to those who enabled you to acquire the job (meaning ABC).

Make Bid Bonds Great Again
So there you have it.  These instruments are fussy and sometimes complicated.  It is imperative that they be executed correctly and filed on time or it can cause the bid to be thrown out (loss of contract.)  This always makes people very crabby (Read: LAWSUIT).

The key is to review the written bonding requirements as described in the bid advertisement. Use any mandatory bond forms that are stipulated and double check the correct execution and typing of the document including name spelling, job description, project identification details and the correct bid bond amount.

Now that you know, you can start to love bid bonds again!

Insurance Agents and Contractors: Love the “Secrets” articles? You’ll really love it when we solve your tough bonding problem! We have the markets and the know-how to succeed even when others have failed.  Call us with your next surety bond need.  We guarantee a same day response.  856-304-7348

Not available in all states.

Secrets of Bonding # 141: Surety Bonds and Zombies

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Need a bond?  Talk to the Pros!  856-304-7348  www.BondingPros.com

Brokers protected.  Contractors welcomed.

Zombies are bad.  They eat your flesh and brains.  Who wants THAT?!

Same goes for your construction business.  There are zombies that can ruin your bonding and eat up your business – destroy profits and your credit rating.  But the worst part is… it’s preventable!   

Does the zombie have a name? Yes, accountants call it “Fixed Overhead.”  This is a controllable expense that, if left unattended, can eat your flesh and brains (figuratively.) Let’s define the monster:

Fixed Overhead – Construction companies incur common fixed overhead costs. These are costs that do not vary with the level of the company’s output such as: accounting fees, advertising, insurance, interest, legal fees, labor burden, rent, office expenses, salaries, repairs, supplies, taxes, telephone bills, travel expenditures, and utilities. 

Now consider Variable Overhead – These costs vary in proportion to the amount of production. Variable overhead mostly relates to hourly indirect labor costs, supplies and utilities such as electricity, gas and telecommunications expenses.

The danger of fixed overhead is that, during times of reduced volume / revenues, the expense does not automatically go down. This means when sales are weak, your expenses do not diminish proportionately.  These bills keep rolling in relentlessly.  They just don’t care!

The only hope construction managers have is to be cautious when incurring such expenses, and always work to reduce them so the company can survive the inevitable troughs that come between the peaks of activity.

Here are 40 ideas that may help reduce / eliminate fixed overhead:

  1. Lease-purchase options for vehicles and equipment
  2. Employ part-time mechanics and administrative staff
  3. Pay employees for use of their vehicles
  4. Keep equipment longer
  5. In unprofitable years, slow down depreciation schedule
  6. Overhaul facilities and equipment instead of purchasing new
  7. Review / quote insurance annually. Consider self-insurance or association captives. 
  8. Eliminate overlapping insurance coverages
  9. Improve safety program
  10. Examine Workers Compensation classifications
  11. Consider increasing deductibles
  12. Eliminate over insurance, such as reducing inventories
  13. Deactivate, de-register and uninsure unused vehicles
  14. Challenge property valuations (taxes)
  15. Avoid the expense of audited financial statements if possible
  16. Reduce accounting fees by assisting your CPA
  17. Consider using a local CPA rather than a national firm
  18. Lease unused space
  19. Consider a smaller building
  20. Consider high density stacking and storage systems
  21. Renegotiate rent or move
  22. Get indefinite lease with 6-month cancellation rather than fixed term
  23. Pay moderate salaries with bonuses for exceptional performance
  24. Reduce number of management staff
  25. Reward managers with stock instead of cash
  26. Trim fringe benefits (deferred compensation, automobiles, club memberships, etc.)
  27. Cut managers first
  28. Pay bonuses to field staff first
  29. Pay raises based on merit, not cost of living
  30. Cross train office staff to eliminate temporary employees
  31. No vacations during “busy season”
  32. When hiring, seek individuals whose employment qualifies for tax credits
  33. Four day work week
  34. Charge employees for replacement tools
  35. Put company ID on tools, keep records
  36. Centralize tool storage with check in / out system
  37. Close dormant companies
  38. Consider solar panels and solar water heat
  39. Monitor unemployment claims
  40. Consider an office maintenance service instead of employing a janitor, or use a part-time after hours person

Conclusion

Companies can achieve better financial performance, support their bonding and banking and survive the weak years by controlling these relentless expenses. 

Remember: You can’t kill a zombie because technically they’re already dead.  And you can’t entirely eliminate fixed overhead either – but good managers work to control it.

Insurance Agents and Contractors: Love the “Secrets” articles? You’ll really love it when we solve your tough bonding problem! We have the markets and the know-how to succeed even when others have failed.  Call us with your next surety bond need.  We guarantee a same day response.  856-304-7348

Not available in all states.

Secrets of Bonding #140: Make Tax Liens Disappear!

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Need a bond?  Talk to the Pros!  856-304-7348  www.BondingPros.com

Brokers protected.  Contractors welcomed.

When tax liens, bankruptcies and judgments appear on credit reports, they can prevent sureties from issuing bonds and banks from granting loans.  This can be devastating for construction companies that need both to succeed. 

Are there ways to get the tax lien off the credit report?  Yes! Let’s find out how.

According to the government: “A federal tax lien is the government’s legal claim against your property when you neglect or fail to pay a tax debt. The lien protects the government’s interest in all your property, including real estate, personal property and financial assets.”

For surety bond underwriters, the tax lien is a red flag for a number of reasons:

  • It can mean the bond applicant had insufficient cash flow to meet their financial obligations.
  • It may be a sign of poor management or weak internal controls.
  • The scariest part may be the “weapons” used by the IRS to collect their tax money. They can issue a tax levy.  This permits the legal seizure of property to satisfy the tax debt. They can garnish wages and take money from a bank or other financial account.  They also have the ability to seize and sell vehicles, real estate and personal property. These collection activities can threaten the success of bonded projects to the detriment of the contractor and surety.  Bad for everyone except the IRS agent.

Here is how to remove tax liens from the credit report:

  1. Eventually the credit bureau may drop it from the report even if it is not paid, but this can take years.
  2. Pay the tax bill. Eliminating the debt will not remove the lien from the credit report, but will show it as “released.”  For credit grantors, this is still negative, but less threatening.  Paid liens remain on the report for seven years. So the next step is also needed…
  3. Federal form 12277. With this document you can ask the IRS to withdraw (remove) the lien notice, even when the debt is not paid off!

More about form 12277

This is part of the federal “Fresh Start” program, which provides certain benefits to taxpayers.  12277 is the Application for Withdrawal form.  The IRS will consider withdrawing the lien notice if the debt is being paid through a Direct Deposit installment agreement, plus a few other conditions.  See the form.

The purpose of the Application for Withdrawal is not to eliminate the lien, but to remove it from public view when there is no longer the threat of a tax levy.  Consider using this procedure on liens that are not paid off, and those that are!  In both cases it is legal and beneficial to have the lien disappear.  But is this practice unfair or deceptive?   No, because banks and bonding companies have other ways of detecting the lien.  They are not being deprived of relevant information.  For example, the debt will appear in the financial statements and also on the Contractor Questionnaire.

One more comment about the dreaded, draconian tax levy: Before the IRS proceeds with the levy they are required to send the taxpayer a Final Notice of Intent to Levy and Notice of Your Right to A Hearing. This gives the taxpayer one last chance to argue against the levy before it is implemented.  Go for it. Maybe it will help.  Remember – they’re from the government and they’re here to help!!!

Now you know the ways to remove a federal tax lien from view.  By waiting, paying and / or using form 12277, the lien can be wiped from the credit report.  For the taxpayer, it can be an important step toward financial recovery.

Insurance Agents and Contractors: Love the “Secrets” articles? You’ll really love it when we solve your tough bonding problem! We have the markets and the know-how to succeed even when others have failed.  Call us with your next surety bond need.  We guarantee a same day response.  856-304-7348

Not available in all states.

Bonded Contracts – Show Me The Money! (Secrets of Bonding #139)

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Need a bond?  Talk to the Pros!  856-304-7348  www.BondingPros.com

Brokers protected.  Contractors welcomed.

Laurel and Hardy. Ben and Jerry. Bonding companies and money. They just go together!

Let’s take a look at the focus bonding companies place on money when providing Bid and Performance Bonds. It’s a matter of survival. If called upon, the surety hopes to complete the project with the remaining (unpaid) contract funds. They track a number of elements and there are critical milestones. Learn about them so you know what’s ahead.

Of course there is a significant financial evaluation of the applicant (the construction company), a subject we have written about extensively. Visit our index of article subjects. Here we will only talk about the bonded construction project.

An early money question is “how is the work funded?” Most bonded jobs are public work. This means the project is paid for with tax dollars. On private contracts, the work can be funded in a number of ways. For commercial building, the project owner may have a construction loan or set funds aside in an escrow account. In any event, the bond underwriter wants to be sure the contractor will be paid after they incur costs for labor and material. Not being paid could cause the company to fail and result in claims on all open bonds.

Regarding the new contract, the surety will ask:

  • How often will the contractor be paid?
  • Is a portion of the contract amount paid up front, immediately when the work commences?
  • Are there Liquidated Damages – a financial penalty assessed per day for late completion of the work?

Once the contract is underway, the surety wants to monitor the money:

  • Is the job proceeding profitably, and therefore headed for a successful conclusion?
  • Do the contractor’s billings correlate with the degree of completion? It can be dangerous when they get too far ahead by billing the job aggressively.
  • Are suppliers of labor and material being paid on a current basis (by the contractor / surety client)?
  • Is the project owner paying the contractor in accordance with the written payment terms?

Sometimes underwriting issues are resolved by using a “funds administrator.” This procedure is intended to enable the contractor to perform the work, while the money handling is performed by a professional paymaster. The paymaster pays all the suppliers of labor and material, plus the contractor. This procedure minimizes the possibility of claims under the Payment Bond.

When the project reaches a conclusion, there may be important final transactions:

  • Final payment – the contractor collects the last regular payment under the contract. The bonding company issues a consent for release of this payment. If there are any problems or issues, they may withhold such approval. Underwriters can require copies of lien releases (from suppliers of labor and material) to assure that everyone has been paid – to prevent Payment Bond claims.
  • Release of Retainage – the contractor now collects a percentage of the contract amount that was methodically held back (retained) as security for the protection of the project owner. Surety consent is often required for this, too. The owner will not release this money unless all the loose ends are resolved, referred to as a “punch list.”
  • Bond “overrun” premium – normally the surety is automatically required to cover additions to the contract amount (bond automatically increases.) Therefore, they are entitled to an additional premium for such exposure. If not collected during the life of the project, this would be a clean-up item at the end. Sometimes a refund is issued for an “underrun” (net contract reduction.)

Bonus Question: Why do some underwriters require premium payment in advance for Performance and Payment Bonds?

Answer: Unlike insurance, surety obligations (P&P bonds) are not cancellable. Therefore, if the underwriter doesn’t get paid the bond premium, they are still “on” the risk!

Conclusion

Surety underwriters strive to bond reputable, capable companies. But even the biggest, best contractors cannot avoid the financial aspects that pop up during the life of all bonded jobs.  Deal with them as they arise. Now you know what to expect.

Enjoy  this scene from Jerry Maguire (click): Show me the MONEY!!!  

Insurance Agents and Contractors: Love the “Secrets” articles? You’ll really love it when we solve your tough bonding problem! We have the markets and the know-how to succeed even when others have failed.  Call us with your next surety bond need.  We guarantee a same day response.  856-304-7348

Not available in all states.

Secrets of Bonding #138: Hate Union Bonds

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Need a bond?  Talk to the Pros!  856-304-7348  www.BondingPros.com

Brokers protected.  Contractors welcomed.

Union Bonds, aka Wage and Welfare Bonds, can be a troublesome area for contractors, agents and bonding companies.  But we like to think there is something there to love. We will explain…

The Hating

For contractors, this is often their first brush with the wonderfully playful world of surety bonds. Maybe the contractor is focused on light commercial work, or is exclusively a subcontractor, so bid and performance bonds have never been needed. The contractor wants to get workers from the union hall so a new contract can begin on time.  Suddenly this road block appears: “A $50,000 surety bond is required.” Unfortunately, the contractor learns that financial statements are needed – but they are not immediately available.  And there are financial strength requirements, which the contractor may need meet, soooo…!

For bonding companies, you might assume that if they get paid their premium, they should be perfectly happy to issue these.  They are not.  The union bond is often their first bond request from the new client.  In other words, they don’t have a file, don’t know the financial condition of the applicant, are not confident in their ability to operate successfully, and this bond is considered a “financial guarantee” (as opposed to a performance and payment bond). A financial guarantee bond guarantees that the principal (construction company) will pay funds when due at a future date.  Get out your crystal ball!  If the contractor cannot pay the required union wages and benefits resulting in a bond claim, where will the money come from to reimburse the surety for the loss?  Underwriters are quick to admit they think these bonds are the worst part of a contractors account, and they dislike having one as the first bond request from a new client.  They prefer to get a couple of P&P bonds under their belt first.

For the bond agent, if they can get the bond approved and issued, what’s not to love?  The problem is that for many new applicants with credit issues or poor financial statements, the bonds are only approved with “full collateral.”  This means if you want a $50,000 bond, the surety wants to HOLD $50,000 as a security deposit against potential future claims.  Plus you pay the bond premium.  Plus you sign an indemnity agreement, probably including personal indemnity, plus your spouse. So, faced with these terms, it is not unusual for the contractor to give the $50,000 directly to the union in lieu of the bond.  For the agent, this means when the bond is approved, the client no longer wants it.  No commission.  Ugh!

The Loving

Here is the flip side.  If the bond is painlessly approved, everyone goes home happy.  But even with a full collateral requirement, there are reasons to still chose the bond (over security held directly by the union). With a bond in place, any claim by the union must be reviewed and analyzed by the surety’s claims department.  The surety is likely to ask the contractor for info and an explanation. Normally money does not go flying out of the bonding company.  It is possible the claim may be declined. This investigative process can be protective for the construction company. If a cash deposit is used, the union has immediate access to the contractor’s money.  Secondly, the wage and welfare bond can open the door with the surety.  Maybe it will lead to a new performance bond facility.  That could result in more revenues, more profits, greater success for the contractor. Another benefit is that after a track record is established, the collateral requirement could be waived. Now the contractor has the bond with NO collateral required.  It was worth the wait!

So there you have it.  Wage and welfare bonds may seem like a PIA, but even if it’s hard to get the bond, it may be worth having in the long run.

Insurance Agents and Contractors: Love the “Secrets” articles? You’ll really love it when we solve your tough bonding problem! We have the markets and the know-how to succeed even when others have failed.  Call us with your next surety bond need.  We guarantee a same day response.  856-304-7348

Not available in all states including Idaho