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Bid Bonds

What is a Bid Bond?

A Bid Bond is a type of Contract Surety Bond that acts as a form of prequalification and protects Owners and Contractors during the bidding process.

Parties to a Bid Bond

A Bid Bond is a three-party guarantee between the Principal (The Contractor on the Bond), the Obligee (The Owner or Contractor Requesting the Bond) and the Surety (the Bond Company Guaranteeing the obligation)
Parties to a Bid Bond - This chart shows the relationship of the surety bond company, prinicpal and obligee on a bid bonds and explains the role of each party.

What Does a Bid Bond Guarantee?

The Bid Bond guarantees that if a bidding contractor is the low bidder, they will enter into a contract for the price and terms of their submitted bid. The Bid Bond protects the Obligee. Without it, a Contractor may have an incentive to not honor a submitted bid if the results are not to their liking. A Bid Bond compensates the Obligee for costs associated with rebidding the project if the Contractor on the Bid Bond is the low bidder and does not enter into the contract for the project.
A secondary purpose of a Bid Bond is to prequalify a contractor and make sure they are a capable of completing the project. Bid Bonds must be approved by a qualified surety bond underwriter. This means a qualified party has reviewed the contractor and believes they are a responsible bidder. Such review and prequalification may be required by the Bid documents.

How to Get a Bid Bond

In most cases, companies with good credit can get bid bonds up to $1,000,000 freely and in minutes. Axcess Surety can issue them instantly through our online system or with a simple application. Simply click the button below or click here.
Get a Bid Bond Instantly. Green button with a white key to obtain a bid bond.
Larger bid bonds may require additional information and our staff are happy to help you through the process. You can see the process for obtaining a bid bond in the chart below:

This graphic outlines the easy steps to obtaining a bid bond

Underwriting Larger Bid Bonds

Bid bonds and other contract surety bonds are underwriten according to the 3Cs. These are Credit, Character and Capacity.

Credit

Surety Bond underwriters want to make sure that contractors have the financial strength to complete a project before providing a bid bond on that project. An underwriter will look generally want to see three years of a contractor's financial statements to qualify for a bid bond. They will usually want to review the personal financial statements of the owner(s) as well.
They will also request a contractor's Work-In-Progress report to see how the contractor's current backlog is going and and to look at trends on projects. Finally an underwriter will likely ask for an Aging of Accounts Receivable and a copy of the contractor's bank line of credit.

Character

Character is a contractor doing what they say they are going to do. Surety bond companies want to make sure a contractor will stand behind their commitments, finish projects and reimburse the bond company if necessary.
Bond companies underwrite character by meeting the contractor. They may also call the contractors suppliers, subcontractors, and previous customers to get references.

Capacity

Finally, the third "C" is Capacity. Capacity refers to a contractor' ability to perform the work. This includes having adequate experience, staff, equipment, and systems in place. A bond company will not write a bid bond unless it believes the contractor had the capacity to do the project.

When Are Bid Bonds Required?

The Miller Act requires a contractor to submit a Bid Bond on Federal Projects for $150,000 and larger. Many states and municipalities have also adopted similar requirements referred to as Little Miller Acts. Even when Bid Bonds are not required by law, it is common for them to be required on private projects as well. Additionally, many General Contractors require Subcontractors to provide Bid Bonds when bidding sub trades.

What Are the Amounts of Bid Bonds?

The Amount of a Bid Bond depends on the amount of the contractor's Bid. Bid Bonds are expressed as a percentage of the contractors Bid amount. Most public projects have a required bid amount of 5%. However, 10% or even 20% is not uncommon. That means the Contractor and/or Surety Bond company could be liable for that percentage of the Contractor's Bid. This is referred to as the Bid Bond's Penal Sum. An example is below:

Bid Bond Penal Sum Example:

Contractor’s Bid Amount = $1,000,000

5% Bid Bond = $50,000 Penal Sum
10% Bid Bond = $100,000 Penal Sum
20% Bid Bond = $200,000 Penal Sum
Bid Bond Penal Sum Example - This chart shows the various bid bond penalties for different bid bond amounts. Construction tools up top. Green chart below
The Penal Sum is meant to be the maximum amount of the Bid Bond. Often the penalty is less because of the second place Bid. For example, assume that in the scenario above, the second place bidder Bid $850,000. This would change the Bid Bond's Penal Sum on the 20% Bid Bond. This is because the difference between the first and second bidder is only $150,000. The Obligee could claim $150,000 and go to the second bidder. On the other hand, the Bid Bond payout would remain the same on both the 5% Bid Bond and the 10% Bid Bond. This is because the $150,000 bid spread would be is greater than the Penal Sum on either Bid Bond. Therefore, the maximum claim under the Bid Bonds is just the Penal Sum.
As you can see, The actual dollars that a Bid Bond covers depends on the contractor's Bid amount.

Capping a Bid Bond

Surety Bond underwriters very rarely set a limit on a contractor's Bid and Bid Bond. When an underwriter does set an absolute maximum on a Bid Bond, it is referred as, " Capping a Bid Bond". That means if the contractor bids over the amount set on the bond, the Bid could be thrown out.
An example of wording that would "cap" a bid bond is:
"5% of the bid amount not to exceed One Million and 00/100 Dollars, ($1,000,000)."
Capping a Bid Bond - This image defines what it means to cap a bid bond. There is a blue text box with a construction site background.

Forfeiture Bid Bonds

Forfeiture Bid Bonds require the entire Penal Sum to be paid, regardless of what other bids have been submitted. These Bid Bonds contain more risk and will come under more scrutiny from a Surety Bond underwriter.

Bid Bond Cost

Axcess Surety Bonds does not charge for bid bonds. We want to build a long-term relationship with our clients and allow them to Bid freely. If you are the low bidder and are awarded the project, you may be required to provide other contract bonds such as performance bonds, payment bonds or maintenance bonds. These types of bonds do have a cost. Be aware that some brokers may charge a fee for Bid Bonds.

What Happens to the Bid Bond After the Bid?

If a Principal is read low bidder or most responsible bidder, the Obligee will likely award the contract. Most Bid Bond Forms give the Obligee up to 60 days to award issue an award and a contract. At that point, they may require the Principal to provide Performance Bonds, Payment Bonds and Maintenance Bonds.
If the Bid is not low or successful, the Bid Bond guarantee is no longer valid. There is no need to have the Bid Bond returned.

When Would Someone Make a Claim on a Bid Bond?

Bid bond claims are rare. Normally they occur in one of two circumstances:
• When the Contractor (Principal) decides not to enter into a contract for bid after being the successful bidder.
• When the Surety Bond Company decides they will not write performance and payment bonds for the project after issuing a Bid Bond and a replacement Surety Bond company can not be found.
Both scenarios could happen when a contractor makes a large mistake. The second scenario can happen if The Principal's financial strength or capacity changes between the time of the Bid Bond issuance and the signing of contracts. The Obligee could then make a claim on the bid bond. An example is below:
A Contractor bids a project with a 5% Bid Bond. The bid is turned in at $800,000. The second lowest bidder turned in a bid at $1,000,000. After careful review the first Contractor realizes they made a mistake. The Contractor tells the Obligee that they will not be entering into the contract at that price. The Obligee can then make a claim on the Bid Bond for $40,000 ($800,000 x 5%) to compensate them for having to rebid the project or go to the next bidder. Keep in mind that the Contractor may be making a wise business decision. After all, paying the $40,000 Bid Bond penalty may be much less expensive than trying to build the project with the error. Unfortunately, contractors often feel they can make up the mistake later and this can lead to trouble down the road.
In the example above the Contractor may still want to do the project for $800,000 even though there is a significant Bid spread. Their Surety Bond company may decide they do not want to provide a Performance Bond or Payment Bond on the project due to the Bid spread. The Contractor must either find another Surety Bond company who will support the project or the Obligee can make a Bid Bond claim. In the industry, when a new Surety Bond company writes the Performance Bond and/or Payment Bond when another Surety Bond company wrote the Bid Bond, it is referred to as "Jumping a Bid Bond". Many Surety Bond companies will not jump another Surety's Bid Bond.

Defenses to Bid Bond Claims

A valid defense to a Bid Bond claim is an error in transposing the numbers or other clerical error. For example, a Subcontractor gives a contractor a bid for $200,000 but while rushing to get the Bid submitted, the contractor puts in $20,000 instead. The error in transposing the correct amount could be a valid defense to a Bid Bond claim.
Regardless of whether a bad Bid is a mistake or error, a best practice would be to go to the Obligee as soon as possible. Many good Obligees have come to realize that starting  a project with a Contractor who is upside down is a losing proposition for everyone. The Obligee may decide to move on to the second place bidder to avoid problems on the project.

Indemnity

Bid Bonds and all Contract Surety Bonds are written on The Principle of Indemnity. That means that if a valid claim does happen, and the Surety Bond company pay a claim, they will seek reimbursement from the Principal and other indemnitors under the General Indemnity Agreement (GIA) This is a significant difference between Surety Bonds and insurance. You can read more about indemnity and GIAs here.

Electronic Bid Bonds

Many Obligees have moved to electronic bidding. Electronic bidding does not require a raised seal like many Bid Bonds. Instead, bid information is entered into an online system for this purpose. This is especially true for many states' Department of Transportation projects.  The Bid Bond is still approved by a Surety Bond company. Once approved is granted, the Surety Bond Broker enters the electronic bond into an approved  bidding system such as Surety2000, Tinubu or other. You can read more about electronic bid bonds here.

Annual Bid Bonds

Annual Bid Bonds are Bid Bonds that remain open for an entire year. A Contractor may bid many different projects under the Bond. The Annual Bid Bond simplifies the process for the Contractor, Surety, and Broker by not having to execute multiple Bid Bonds throughout the year. Annual Bid Bonds are most appropriate when multiple projects will be Bid to the same Obligee throughout the year. Monthly bid lettings to the Department of Transportation are a great example. You can read more about Annual Bid Bonds here.

What to Look for in a Bid Bond Company

Most Bid specifications require that your Bid Bond companies be rated “A-“ or better by the rating agency A.M. Best or similar rating agency. Most bid specifications will also require your Bid Bond company to be listed on the U.S. Department of Treasury’s Circular 570 which you can check here. This is sometimes shorted as a “T-Listing”. Contractors should avoid Individual Surety Bond companies as providers of Bid Bonds. These companies are often backed by fraudulent assets an a contractor may have a worthless Bid Bid Bond. It is always a good idea to verify your bond.
Bid Bonds should not be complicated. Contact the Surety Bond experts at Axcess Surety anytime.