• Turn my BlackBerry off on the first tee box, and don t look at it until the 18th hole. If absolutely necessary, sneak a peak at the turn. Nothing can affect a relaxing game of golf as much as a ringing phone. (Ask my husband.)
• While talking on the phone at work, turn my back to the computer monitor, and focus on the conversation with the person to whom I m speaking. Listeners can tell when you aren t focused on what they are saying. (Ask my daughters.)
• Turn my computer off at night. Turning it back on in the morning may take time, but it does save energy. After all, nothing is that important after 7 p.m.
• Don t talk on the phone while driving. If that doesn t work, buy a hands-free device to drive and talk more safely. That way I won t scare my passengers as much.
• Drink less and exercise more, at least five days a week for at least one hour. (I m talking about exercising, not drinking.)
• Take time to appreciate the friendships developed through the NASBP, enjoy the NASBP Annual Meeting held in Miami in April, and thank God every day for the professional staff at NASBP that has made this year so rewarding.

Well, I may not be able to fulfill all of these resolutions. One thing I do know, however, is that, even if I don t succeed in accomplishing all of my resolutions, I know I am better off trying and failing than not trying at all. And, I also know that my clients are better served when I m at the top of my game physically and mentally.

I am confident that 2008 will test the mettle in all of us. Uncertain times demand the best from within us, so that we may help our contractor and subcontractor clients weather the business challenges and difficulties that will arise. But with challenges come opportunities, and 2008 will provide us with many opportunities to make differences for our clients, our companies, and our association. I wish everyone a safe and happy holiday season and a healthy and successful 2008. See you in the New Year!

Sarah Finn is National Surety Senior Vice President of IMA of Colorado, Inc. in Denver, Colorado. She can be reached at sarah.finn@imacorp.com.

Noting the earlier Maryland decision, the US District Court explained that the Maryland court  did not reach the issue of when precisely the [surety s] response period began  due to the surety s lack of any subsequent answer. The US District Court noted that, under Florida law, surety contracts are treated as analogous to insurance contracts and, therefore, are to be  strictly construed against the surety.  After determining that under the facts of the case that the surety failed to provide an answer in conformance with the terms of the A312 bond, the US District Court then determined that, in the absence of any Florida case law on the subject, the District Court would follow the reasoning of Bramble, whereupon it deemed the surety s failure to answer to be a complete waiver of the surety s right to dispute the payment claim.

This line of opinions, in which the surety is denied the ability to contest claims, shows a judicial cast on suretyship that, at best, can be said to be unsettling for the surety industry. As a result of the Bramble decision, NASBP contacted the AIA to share our concern about the current language in A312 payment bond form and to indicate our interest in participating in the revision of that form. Upon publication of this latest decision, NASBP again reiterated its interest in the revision of A312 to the Managing Director of the AIA Documents Program. AIA, however, has indicated that it will not begin the revision process for A312 until likely in the second half of 2008 with a publication date of a revised document sometime in 2009.

In the meantime, surety professionals should take notice of the new ConsensusDOCS  payment bond forms, such as ConsensusDOCS  261 or 473, which do not state specific procedural requirements for the surety s response. ConsensusDOCS  bond forms are available for viewing and for purchase online at http://www.consensusdocs.org. Samples of all ConsensusDOCS  bond forms also are available as PDF documents in the password-protected section of the NASBP web site.

These materials are provided to NASBP members solely for educational and informational purposes. They are not to be considered the rendering of legal advice in specific cases or to create a lawyer-client relationship. Readers are responsible for obtaining legal advice from their own counsels, and should not act upon any information contained in these materials without such advice.

The FAR Council agreed:

• to exempt all small businesses from the provisions requiring an awareness program and an internal control system;
• not to require federal contractors and subcontractors to display a federal fraud hotline poster if they have established and posted information on their own fraud hotline; and
• not to authorize additional  remedies  such as the withholding of contract payments for noncompliance with the new requirements.

The requirements include a flowdown to subcontractors. However, a contractor  is not required to judge or monitor the ethics awareness program and internal control systems of [its] subcontractors just check for [their] existence.

The third of the three new requirements, relating to fraud hotlines, applies not only to direct federal work but also to other contracts exceeding $5 million and funded with federal disaster assistance funds.

Who Is Exempt

The rule exempts all small businesses from the second item (relating to awareness programs and internal control systems).

Neither the requirement relating to a code of business ethics nor the requirement relating to awareness programs and internal control systems applies to contracts or subcontracts:

• for commercial items;
• for work performed entirely outside the United States; or
• for work expected to neither exceed $5 million nor require more than 120 days to perform.

The preamble to the new rule explains that contractors do not have to submit their ethics and related programs to the federal government for pre-award review. Nor are contracting officers required  to verify compliance.  Contracting officers may, however,  inquire  at their  discretion  and in the  normal contract administration.

Also,  [t]he Government will not be routinely reviewing plans unless a problem arises.

The Latest Proposed Amendments Regarding Ethics and Compliance Programs

The FAR Council has already proposed to expand the rule. Click here to view the Proposed Rule published in the Federal Register, Vol. 72, No. 219, on November 14, 2007, at page 64019. The proposal indicates that public comments are due on January 14. Among the concerns in the latest proposal are amendments that: provide that a contractor s  [k]nowing failure to timely disclose  either an  overpayment  or a  violation of Federal criminal law  is a cause for both debarment and suspension; make a contractor s  record of integrity and business ethics  an element of  responsibility ; and require contractors to notify the government  whenever  they have  reasonable grounds to believe that a principle, employee, agent, or subcontractor has committed a violation of Federal criminal law.

NASBP will keep you apprised in Pipeline as more information unfolds related to these proposed changes.

Understanding construction risks so you can assist contractors to identify and manage such risks is vitally important. Over 10,000 contractors fail each year, according to the “Business Failures” Report (Dunn & Bradstreet, 2004). The Workshop starts with the estimating process. Producers and underwriters should be aware of good, sound estimating practices that contractors need to mitigate the risks of the jobs that they are awarded.

The NASBP Risk Workshop provides surety professionals a rare opportunity to participate in a mock bid-day. Starting with a review of the plans and working through to a completed bid, participants experience the challenge and the  victory  or  defeat  that contractors face when bid day arrives.

Click here for more information about the workshop schedule and instructors
http://www.nasbp.org/AM/Template.cfm?Section=Education_Workshops

To register online, go to http://www.nasbp.org/AM/Template.cfm?Section=Risk_Workshop_Registration or http://www.nasbp.org/calendar.

To request a brochure, please call 202-686-3700.

Job seekers can confidentially post their resumes for free. However, employer access to view the text of the resumes posted at the NASBP Career Center or to post a job description requires purchasing, at a minimum, the 30-day package that is $100.00 for member/affiliates and $200 for nonmembers/non-affiliates. The minimum package includes resume database search access for 30 days.

Other packages include the:

• Three 30-day Online Job Posting,
• Five 30-day Online Job Posting Packages, and
• Ten 30-day Online Job Posting Packages.

Click here for more information about these packages and their rates.

Access to the descriptions of the jobs posted to the site, requires no registration or purchase. Below are links to the jobs posted by employers at the NASBP Career Center. (These links represent the exact words each employer used to describe the position they have posted to the NASBP Career Center).

NASBP Career Center Job Listings: