Bid Bonds

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What is a Bid Bond?

A Bid Bond is a type of contract surety bond that guarantees that a bidder will enter into a contract and provide Performance and Payment Bonds on a project if they are the low, selected bidder.

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). Contractor can also learn more about the responsibilities of each party.

This shows how bid bonds work including the relationship between the principal, surety and contractor. In the background are construction hardhats and a measuring tool.

This chart shows the two primary purposes of a bid bond which include protecting the bid letting and prequalifying contractors. The background is a construction site.

What Does a Bid Bond Guarantee?

A 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. A bid bond protects the bid letting. Without it, a bidding 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 to the right.

Larger bid bonds may require additional information and our staff are happy to help you through the process.

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Underwriting Larger Bid Bonds

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

Credit

Surety Bond underwriters want to verify that contractors have the financial strength to complete a project before providing a bid bond. An underwriter will 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 to look at profitability on existing projects. Finally, an underwriter will likely ask for an Aging of Accounts Receivable and a copy of the contractor’s bank line of credit.

For bid bonds, a surety underwriter is looking for history of profitability on similar projects. They also want to make sure the contractor has the cash and liquidity to finish the project, pay subcontractors and suppliers, and continue company operations throughout the life of the project.

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 surety bond company if necessary.

Bond companies underwrite character by meeting the contractor and having annual meetings. They may also call the contractors suppliers, subcontractors, and previous customers to get references. The purpose of these meetings and calls is to understand the processes the contractor uses and to see if other believe the contractor has a history of fair dealings.

Capacity

Finally, the third “C” is Capacity. Capacity refers to a contractor’s ability to perform the work. This includes having adequate experience, staff, equipment, accounting and estimating systems in place. A surety bond company will not write a bid bond unless it believes the contractor has the capacity to do the project.

This shows the three circumstances when bid bonds are required. The background is construction blueprints and a hardhat.

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 their trades. These subcontractor bonds help prequalify subcontractors and ensure that they will honor their bid price if selected.

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 contractor’s bid amount. Most public projects have a required bid bond penalty of 5%. However, 10% or even 20% is not uncommon. That means the contractor and/or surety bond company could be liable up to percentage of the contractor’s bid if a Bid Bond claim is made. 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 amount. For example, assume that in the scenario above, the second-place bidder submitted a bid of $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 will cover depends on the contractor’s bid amount.

A construction site in the background. A green text box shows what it means to cap a bid bond.

Capping a Bid Bond

Surety bond underwriters very rarely set a limit on a contractor’s bid amount 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 more than the amount set on the bid bond, the contractor’s 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).”

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. Forfeiture bid bonds are very uncommon.

Bid Bond Cost

Most brokers and bond companies do not charge for bid bonds. 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.

Some brokers and surety bond companies do charge for bid bonds. This may be appropriate when providing bid bonds is time consuming and the contractor is unsuccessful on multiple bids. You may read more about why bid bonds are free.

Are Bid Bonds Really Free?

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 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.

A contractor holding a hardhat. Two boxes with tools show the most common reasons for bid bond claims.

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 cannot 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 bond capacity changes between the time of the Bid Bond issuance and the contract award. The obligee could then make a claim on the bid bond. An example is below:

Bid Bond Claim Example

A contractor bids a project with a 5% Bid Bond. The contractor’s bid is submitted 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 build 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.

Jumping a Bid Bond

In the industry, when a new Surety Bond company writes the Performance Bond and/or Payment Bond after 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.

Bid Bond Claims
A Complete Guide

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 realize that starting a project with a Contractor who will lose money on the project is a bad proposition for everyone. The obligee may decide to move on to the second-place bidder to avoid problems on the project.

Contractor can read all about bid bond claims.

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.

Surety Bonds
And Indemnity

Bidding with a Cashier's Check

Alternatives to Bid Bonds

ILOCs and Cashier's Check

Some owners and general contractor will allow contractors to substitute Irrevocable Letters of Credit (ILOC) or Cashier's Check for bid bonds. This is generally not a good idea unless a bid bond cannot be obtained. Obligees can draw on an ILOC or Cashier's Check for almost any reason or dispute. In such cases, the contractor would be left defenseless and would need to proceed with costly legal action to get their money back.

Secondly, if the contractor cannot qualify for a bid bond, they may not be able to get a performance bond or payment bonds. In such instances, the contractor may have to forfeit the ILOC or Cashier's Check. This can be a risky proposition.

Third, ILOCs have a cost, whereas bid bonds should be free in most circumstances. Cashier's Checks have an opportunity cost. The contractor must have the cash on hand and tie it up in the bid instead of using it in the business. Bid Bonds do not tie up such liquid resources.

The only situation where an ILOC may make sense, is when the broker knows they can get the contractor a performance or payment bond, but time may not allow for a bid bond. Even then, it is very risky and the contractor could be left losing their bid security.

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.

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.

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 Bid Bond companies to be listed on the U.S. Department of Treasury’s Circular 570. 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 and a contractor may have a worthless 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.

Frequently Asked Questions

What is the Difference Between a Bid Deposit and a Bid Bond?

A bid deposit is a tool or amount to secure a bid. This can usually be a bid bond, cashier's check or irrevocable letter of credit. A bid deposit may also be referred to as bid security.

Can a Bid Bond Be Submitted Electronically?

It depends on the owner or obligee. However, most obligees will now accept electronic or even scanned copies of bid bonds.

Where Do You Buy Bid Bonds?

Bid Bonds must be purchased from a licensed property casualty broker. While any licensed insurance agent can sell bid bonds, contractors would be wise to look for someone who specializes in the space. Insurance and bonding are two very different specialties.

Can You Get a Bid Bond from One Company and a Performance Bond From Another?

Yes. This is called jumping a bid bond. Many surety bond companies will not write a performance bond for a project which was bid with another surety bond company. However, some will depending on the circumstances.

Do Bid Bonds Add Cost to Bidding?

Bid Bonds are generally free, but if a payment or performance bonds is required upon award, you will need to figure the cost of those bonds into your bid.