aggregate capacity

Secrets of Bonding #160: Deep in the Weeds with Set Aside Letters

In this article we will peel back the onion on Set Aside Letters (SAL) issued by banks in connection with construction loans.  What are they, when they are useful for bonding companies and when are they not?

Here is the essence of such documents:

“The agreement covering the project will provide that the funds in said impound account are … to be disbursed for payment of the (Name of Project) mentioned above and only after (Bank) has satisfied itself that the work paid for has actually been performed… In the event (Borrower) fails to complete the project described herein… all funds remaining in said impound account shall be immediately available to Surety to complete and pay the costs of said project, and in such event, (Borrower) waives any claim or interest in the remaining funds. Surety shall not in any way be obligated to repay said funds so used to (Bank).

This is an irrevocable commitment of funds which is not subject to recall or offset by (Bank).”

Pretty interesting!  This letter / agreement keeps the loan in play to fund the completion of the project  – even if the borrower (bank customer) fails / defaults.

When Are Set Aside Letters Used?

These documents are a common underwriting tool when a Site or Subdivision Bond is issued by a surety. If the bond applicant (who is also the developer and borrower) is relying on a construction loan to fund the bonded work, the SAL protects the surety by providing funds for the completion of the work in the event of a default.

What a great idea.  So why don’t we use these on everything?  Let’s look at another example.

Commercial Projects

The project owner hires a bonded contractor and a bank loan will fund the project.  The bank needs a guarantee that the asset / project (which backs the loan) will be built as intended.  A Performance and Payment Bond accomplishes this and assures there will be no Mechanics Liens against the property for unpaid bills.  These two aspects benefit the project owner and the lender.  Keep in mind, in a borrower default situation, the bank becomes the new owner of the property.

It is common for the bank to stipulate that a bonded contractor be used, and they may want to be a named beneficiary on the P&P bond – accomplished by issuing a Dual Obligee Rider.  In turn, should the underwriter require a SAL from the lender?

On Commercial projects, the normal practice is to NOT obtain a SAL from the lender.  Why not?  Why is this different?

Choose one:

a. The bank is a secured lender

b. The bank can subrogate against the borrower’s assets

c. The Dual Obligee Rider serves a purpose similar to the SAL

a. and b. are true, but the answer is c.

Welcome to the Weeds

We’re going in now. The Dual Obligee Rider adds the lender as a beneficiary with all the rights and obligations of the obligee named on the bond (the project owner).  And what are they?  Obviously they are entitled to make a performance claim and have the project delivered as indicated in the contract.

The named obligee also has obligations, one of the most primary is to PAY the builder. Important: The obligee is prohibited from making a performance claim if they have failed to pay the contractor.

Therefore, when the bank is included under a Dual Obligee Rider, they accept the benefits and obligations.  If the borrower defaults, the lender cannot make a bond claim unless they continue to pay the construction loan to the surety.  (Now the bank owns the project and the surety has become the contractor.)

Summary

Is this starting to make sense?  When a borrower defaults on a commercial project, a lender included by Dual Obligee Rider cannot make a claim unless they continue to pay the project funds to the surety.

Deeper Weeds

On Site and Subdivision there is a unique risk – the lender can take a free ride on the surety by having the bonding company pay out of pocket to complete the project.

Site and Sub-D bonds have the local municipality as obligee, not the bank.  The bank doesn’t want a Dual Obligee Rider because they automatically receive a financial benefit if the municipality makes a bond claim to demand completion of the project.  If the borrower has defaulted, the bank has the opportunity to withhold the balance of the loan (the borrower is gone), and watch the surety pay to complete a project they now own.  And they were not even the bond claimant…

This is the risk sureties avoid on Site and Subdivision Bonds by requiring the SAL that keeps the loan in play, even if the bond applicant / borrower has failed.

Admittedly, this is a pretty obscure subject, but also interesting to us “bond nerds.”  It never hurts to understand how things fit together.  These skills help us solve your complicated bond opportunities.  Take advantage of our expertise when the next one pops up.

KIS Surety is the national contract bond underwriting department for Great Midwest Insurance Company, a national, corporate surety with an A-8 rating.  We throw all this underwriting talent at your bond opportunities and support contracts up to $10,000,000.

If you have a contract surety case that needs a fast, creative response, call us: 856-304-7348

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Secrets of Bonding #127: “The Call”

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A couple of times every week we talk to a new contractor who wants to get their bond account set up for the first time.  Here’s how it always goes:

  • Contractor: We want to go after bonded projects but we’ve never had bonds before.  What’s involved?
  • Bonding Pros: OK Hi! Who am I speaking to?
  • Contractor: I’m Humphrey.
  • Bonding Pros: All right Humphrey, can we start by asking you a few questions?  What is the size and nature of the work you intend to pursue?TelefMan-07

Scenario #1 (Pursuing contracts up to $350,000)

  • Contractor: We have performed residential and light commercial work.  We want to go after general construction contracts up to about $250,000.
  • Bonding Pros: Great! Tell me the ownership and structure of your company.
  • Contractor: The company is an LLC owned by me and my partner Bogart.
  • Bonding Pros: Are you both married?
  • Contractor: Yes, but not to each other.
  • Bonding Pros: We have a very easy program that may be a perfect starting point for you.  To be eligible, the owners and spouses must have good personal credit reports. Are the reports favorable?
  • Contractor: Yes.
  • Bonding Pros: There are some other criteria.  For example, the program cannot be used for long-term contracts or difficult / unique construction – needs to be plain vanilla.  The good thing is that no financial statements or other documentation is required, only a simple one page app. If this program fits your needs, you’ll never find anything easier or faster!
  • Bonding Pros: Give me your email address and we’ll send you the one page app.  We can probably get you pre-qualified within 24 hours!

Scenario #2 (Pursuing contracts in excess of $350,000, or for applicants with low credit scores)

  • Bonding Pros: We have an excellent group of bonding companies, and even offer exclusive capacity not available from other sources.  We find that most contractors are able to qualify for bonding if their account is developed properly.  That’s where our expertise (since 1972!)  comes into play.
  • Contractor: What info will be needed?
  • Bonding Pros:  Getting approved for bonding is like applying for a bank loan. The same kind of financial and background info is needed.  Your relationship with the surety is similar to banking and you promise to protect the surety from loss, just like signing a promissory note with a lender.  That’s why surety bonds are not insurance policies.
  • Contractor: OK what’s the next step and how much does it cost?
  • Bonding Pros: We don’t charge for setting up your account!  We’ll send you an email with a list of items that are needed initially.  Gather as much as you can and send over so we can get started.  The process normally takes a week or two.  You don’t pay until you win a contract and need a performance bond.

Conclusion

Have we oversimplified the process? Actually, no.  It is easier than people assume to get their bond account arranged – when you know the ropes.  That’s our niche.  We don’t pretend to be good at everything, but we are experts at this!

Insurance Agents and Contractors: when tough bonding situations arise, we have the markets and the know-how to succeed even when others have failed.

Give us a call today!  Bonding Pros: 856-304-7348

Not available in all states including Idaho.

Secrets of Bonding #123: Who Was Edward Aloysius Murphy, Jr. (& Why Contractors Should Care)

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(January 11, 1918 – July 17, 1990) An American aerospace engineer who worked on safety-critical systems for the U.S. Air Force. He is best known for his namesake Murphy’s Law, which  states, “Anything that can go wrong will go wrong.”  Murphy regarded the law as crystallizing a key principle of defensive design, in which one should always assume worst-case scenarios.Murphys_Law

Keeping Major Murphy’s principle in mind, what are the critical steps contractors can take to get their projects off on the right foot, and bring them to a successful conclusion – while keeping Murphy’s Law out of the equation?

The first key to having a successful contract is to have a contract. It sounds obvious, but contractors are sometimes induced to start work, or perform change orders / additions to contracts, without an executed document in hand.  Maybe the project owner is in a rush, “We need for you to start right away so we can be completed on time.  We’ll do the paperwork later.”

The contractor wants to maintain good will.  They proceed in the hope that their responsiveness will pay off – and sometimes it does.  There are also times when the contractor incurs costs that are never reimbursed because the contract is not executed.  There could be engineering problems, governmental interference or lack of funding. There are any number of reasons for things to go wrong (as our hero indicated.) And for the contractor, they are all bad.

murphyslaw

On the other hand, let’s say there is no problem with the contract.  The paperwork is signed, the work proceeds, is paid for, and the contractor is completed with a profit in hand. So is that the end?

No, not quite. Just like there is paperwork to get into the project, there is more to get out of it.  The contractor should obtain written acceptance of the work by the job owner (obligee.) 

  • This important document establishes a completion date for the contract and concludes a portion of the liability that is attached to all open contracts.
  • It will close the Performance and Payment bond if there was one. Closing the file restores the contractors bonding capacity. 
  • It may also be beneficial with lenders.
  • If nothing else, a written acceptance may be a defense when the project owner attempts to call back the contractor at a later date or claim the work was not satisfactory.

Edward_MurphyThese simple procedures are basic, good business practices. Contractors who win work competitively, and are paid under a lump sum contract, already face significant risks.  It is important to have the correct paperwork in hand when starting, modifying, and ending construction projects. 

Major Murphy learned this important lesson the hard way – but you don’t have to! 

 

 

Insurance Agents and Contractors: when tough bonding situations arise, we have the markets and the know-how to succeed even when others have failed.

Give us a call today!  856-304-7348

Not available in all states including Idaho.

Secret #91: Bonding Capacity – Enough is Enough

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Contractors know Surety Bonding Capacity is good to have and the more you have the better! But how do you determine the amount that is enough?

Primer on Capacity

  • Bonding capacity is normally described as an amount per project and an aggregate total. The amount per contract is referred to as the “single,” meaning the amount available to support a single contract. The aggregate is the incomplete portion of all the current and new contracts on any given day.
  •  Bonding companies look at the contractor’s capabilities when determining the single amount they will support. These include similar jobs successfully completed, available resources such as supervision, labor, and equipment as well as financial liquidity.
  •  To evaluate the aggregate, underwriters look at historical production levels, financial strength and other relevant factors.
  •  They also consider the capacity amount the contractor is requesting. For successful management of the relationship, it is beneficial to provide what the client desires if possible.

So how does the contractor determine the capacity levels to request?

First off, underwriters are unlikely to support new projects more than double the size of prior work. In addition, they generally expect the financial analysis of the last company fiscal year-end financial statement to show adequate levels of strength for such projects. (Read Secrets of Bonding # 4 for a complete explanation regarding working capital calculations.)

The aggregate capacity is generally double the “single” amount although there may be cases where a limited program consists of a single and aggregate for the same amount. This would mean the underwriters only want to support one project at a time with no overlap.

As far as the ability to bid on multiple projects while performing other work, the solution is to have an aggregate amount that is a multiple of the single, for example $1 million single / $2 million aggregate (referred to as “one over two”).

To decide if the aggregate is enough, first determine if it consists of bonded work only or all projects. This enoughvaries by underwriter. It is reasonable and likely they will say “the aggregate includes all work, bonded and unbonded.” This approach takes all the contractor’s obligations into consideration, everything that may tax financial and human resources and therefore affect the bonded work.

The more liberal treatment is to define the aggregate as only including bonded work. This provides unlimited potential to add unbonded work with no scrutiny by the surety.

Capacity Management Tips

One factor that affects the adequacy of the aggregate is the company’s bidding strategy. Stacking up multiple bids in rapid succession consumes the aggregate more quickly.

The prompt recognition / reporting of progress on bonded jobs and their conclusion has the opposite effect. It helps make more capacity available.

Knowing when current bonded projects will complete can be helpful. Underwriters may support bids knowing that the start of the new project will be after the completion of a current bonded job. This is a slightly creative way of stretching the capacity with a view toward the future. Some underwriters will exercise this flexibility.

Conclusion

In our experience we find that capacity is the most important element of a bonding program.

Contractors are always concerned about the competitiveness of their bond rate. But if you don’t have enough capacity to add the new project, the rate doesn’t really matter.

Secret #84: Manage the Bid Bond Account

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For many contractors, the main thing they want to know about Bid Bonds is that they have them when needed.  However, the successful management of the bid bond account requires controlling a number of elements. Let’s review them.

The bid bond facility consists of a single and aggregate limit. The “Single” is the maximum size project that can be bonded (without a special exception), and the “Aggregate” is the maximum combined exposure on the bond account at any given time.

It is important to note that the single limit refers to the project amount not the penal sum (dollar value) of the bid bond. If a contractor is bidding a $500,000 federal project with the 20% bid bond requirement, the amount of capacity involved is $500,000, not the bid bond amount which would be $100,000 (.2 x 500,000 = 100,000).  The underwriting decision is always based on the contract amount.

Bear in mind, the bonding company does not want to know the actual bid amount prior to the bid opening. When requesting a bid bond, the underwriter is given the approximate bid / contract amount in order to preserve the bid confidentiality.

Let’s stay with the $500,000 example. If the contractor’s bid calculation is actually $485,000, it would be appropriate to round up and make the bond request for $500,000. If the actual bid calculation is $510,000, again, it should be rounded up to allow for last-minute increases. A bid bond request for $525,000 or more would be advisable.

While it is true that the penal sum of the bid bond, if expressed as a “percentage of the attached bid,” will automatically adjust up or down to the actual bid amount, a problem arises if the bonding company issues a “capped” bid bond.  This means it cannot adjust upward beyond the amount stated on the approved bond request. If a capped bid bond is used, the contractor will invalidate the bond, and their proposal, if the bid exceeds the amount approved by the surety.

maestro1. The first rule in managing the bid bond account is to request the bond for an amount sufficiently high to accommodate last-minute increases.  This avoids the temptation to bid above the approved amount – a practice that is damaging to the surety relationship.

2. The second important guideline concerns the aggregate capacity.  The aggregate calculation is made on a daily basis and includes the incomplete portion of open projects, jobs signed but not started, awarded projects, low bids, plus undecided bids. As a result, a portion of the available aggregate will be unnecessarily consumed if bid estimates are rounded up unnecessarily high. In our example, if the contractor calculated a $510,000 bid and requested approval for $600,000, they may needlessly consume capacity that could have remained available to support another bid.

3. Another point, submit the bond request early enough to allow time for discussion and processing.  Usually a couple of days is needed.

In conclusion, when requesting bid bonds, round up the estimated contract amount to allow for last-minute increases, but remember to preserve aggregate capacity for future bids.

Allow sufficient time for processing and keep in mind, to the decision makers, it is not “just a bid bond.”

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Bonding Pros Success Story

November 12, 2014 to Bonding Pros:

“Steve, Good to see it came thru OK. We would like to offer our sincere appreciation and gratitude for your efforts. Thanks so much! Talk soon, (Contractor)”

Frankly, we even impressed ourselves on this one!

The client had a series of obstacles in their file, any one of which could have caused a declination.  With their good cooperation we crafted a file that brought out the key elements of their strength, and effectively addressed issues we knew could be deal killers.

We got them capacity with a highly rated, T-listed surety… with NO COLLATERAL.

This is where our long experience as bonding specialists pays off.

You know insurance, but we know bonds.  Use us as you agency bond department.  We’re problem solvers and our markets are the best.  When you need a bond, talk to the Pros!

We protect our brokers, pay a commission on every bond fee and keep you in the loop.  Try us!

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Secrets of Bonding #76: The Second Bidder’s Second Chance

In this article we will talk about some opportunities that may exist for second bidders.  These are the contractors who have come in 2nd on a competitively bid project, such as a federal or state contract.  These projects are typically awarded to the “lowest responsible bidder” (meaning they must have the proper credentials and meet other requirements.)  As for the 2nd bidder, they get nothing.  They were close, but did not win.  It’s a 100% waste of time and money – unless they DO ultimately acquire the project.  A contract may be awarded to the second bidder under certain circumstances – such as a defect in the low bidder’s paperwork.

There are many documents required in a typical bid proposal: Licenses, certifications, references, non-collusion affidavits, business registration, consent of surety, bid guarantees, etc.  If documents are missing, or issued with defects, the low bid can be declared “non-responsive” at the discretion of the project owner.  The 2nd bidder then becomes the lowest responsible bidder and may receive the contract award.

Here are some of the technical areas to check that can cause bids to be rejected:

  1. Mandatory forms Failure to use mandatory forms, use of obsolete / expired forms, or not following a stipulated format.  Does the bid invitation contain a bid bond form described as mandatory? Bid bonds are all similar but the failure to use the right format or document is a potential cause for rejection.
  2. Bid bond details Check all the typed information for accuracy.
    1. Bidders name
    2. Obligee’s name
    3. Job description and project number
    4. Bid bond percentage or dollar amount
  3. Capped bid bonds If a “capped bid bond” is used, a proposal amount that exceeds the bid bond maximum would invalidate the instrument.  (More info in Secret #68)
  4. T-List requirement If a “Treasury Listed” surety is required, does the bonding company appear on the list, and for a sufficient amount?  http://www.publicdebt.treas.gov/fsreports/ref/suretyBnd/c570.htm
  5. Power of Attorney Is one attached, in the correct name, properly executed and for a sufficient amount?
  6. Notary Acknowledgment Needed for both the surety and the contractor, properly executed.  Is the notary’s commission for the correct state and not expired?
  7. Execution Signed and sealed with the correct seals?
  8. Financial Statement Attached for the surety?  Is it for the correct surety name? Is it as of an appropriate date (not obsolete)?
  9. Consent of Surety This is not always required. However, if stipulated, failure to provide it can cause a rejection. Are all the details on the consent accurate? Properly executed including correct seal?  If there are stated conditions, does the proposal comply? (Example: The Consent may only be valid up to a stated bid amount.)

On public bids (municipal, state and federal), the bid documents are normally available for public review.  Second bidders may be surprised to learn they have a second chance if the low bid is defective.

Another second chance may arise if the low bidder falters on the project after commencing work.  In the event of default, the bonding company must come to the rescue and they want an efficient (fast, economical) way to complete the job. Who better to call than the 2nd bidder?  The 2nd is the natural “completion contractor” to finish the job for the surety.  They already know the project and presumably offered a price close to the low bidder. The 2nd should contact the claims department of the surety that holds the Performance Bond if they see the project is in trouble.

Now a parting comment for LOW BIDDERS: Keep in mind that 2nd bidders don’t give up easily.  They, too, spent time and money pursuing the work, and want to win the contract.  Be sure your quality control prevents bid errors that cause bid bond claims and open the door for 2nd bidders.

KIS Surety is the national contract bond underwriting department for Great Midwest Insurance Company, a national, corporate surety with an A-8 rating.  We throw all this underwriting talent at your bond opportunities and support contracts up to $10,000,000.

If you have a contract surety case that needs a fast, creative response, call us: 856-304-7348

(Don’t miss our next exciting article.  Click the “Follow” button at the top right.)