September / October 2007
|
|
Having just returned from NASBP’s third and final 2007 Regional Meeting, I was able to make several keen observations about our industry, its people, and the places we travel. Florida is rather warm and humid in July, Michigan is beautiful and much cooler, and Dana Point enjoys brilliant Pacific sunsets. O’Hare International Airport is not designed for rain, thunderstorms, or small jet service, and Orange County Airport suffers from a lack of signage leading people to the airport. As for our people, they share many similarities and some clear distinguishing traits. Some talk softer than others, some louder, and some with accents. Most play golf, though some better than others, and some notwithstanding the assistance or handicap of adult beverages. But the defining trait shared by all I encountered was their strong passion for the surety business and their desire for personal contact with their peers and clients.Each regional meeting offered impressive programs and networking opportunities. I was especially enamored with the final presentation of the Regions 1, 2 & 3 Meeting in California, titled: ‘Don’t Just Survive, Thrive,’ for it provided a perspective about the nature and history of our business from three of its most distinguished members and reaffirmed my belief that personal presence with clients is and must remain at the heart of what we do as surety professionals. John Hannum of ICW Group of San Diego, California; Brian Schmalz of Arch Insurance Group of Philadelphia, Pennsylvania; and Dennis Flatness of Welsch, Flatness & Lutz, Inc. of St. Louis, Missouri took us on a walk through four decades of the surety business with insights and humor reflective of their experiences in the industry.
Dennis shared the advice of C. K. Shaw, an Aetna home office employee in the early 1960’s, to young surety professionals. Mr. Shaw wrote a 19-page paper on ‘Things to Think About for Bond Representatives, et al’ which included fascinating advice on professional demeanor and appearance, including the following:
Even though Mr. Shaw’s advice and the ‘Employee Handbook’ show distinct differences on professional dress and demeanor between today and 40 years ago, both serve to underscore a point about our business that has remained constant: the importance of having in-person contact with clients. Too often today we depend on the crutch of technology to do business’that is, through a storm of e-mails and blackberries. Yet, the fundamentals of what we do as surety professionals have not changed. John, Brian and Dennis all acknowledged that the fundamentals of the business are the same and have remained the same over the decades that they have been part of the industry. The three C’s of surety, Character, Capital and Capacity remain the cornerstone of our business. Character is the C that drives the underwriting process. If you don’t have that ‘C’ you don’t move forward. It is through the quality of our relationships that we are better able to evaluate character. The interaction we have with our clients, peers and companies are fundamental to how we do our jobs. With the changing of times and the advancement of communication technology, the fundamentals of our business inadvertently may be impaired. Don’t let new technology lull you into thinking that you can skip the in-person visit with a client, or simply respond by e-mail or voice-mail, or fail to see the job site or meet the project managers and superintendents. If we do not seek opportunities for in-person contact, are we truly in position to judge Character? I would challenge all of us to seek every opportunity to visit clients in person. To preserve the three C’s, we need to take the time and effort to understand character and build the kinds of quality relationships that are critical to our surety industry. We can not afford to do otherwise! So let us set our blackberries aside and be certain that the people part of our industry continues to flourish as it has over the last four decades. 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. |
|
|
|
![]() |
|
Whether in conversation or in literature discussing the South one may eventually come across the venerable Southern expression ‘I do declare.’ It often is used as a profession of sincerity or amazement, placing emphasis on what is being related by the speaker. The speaker, by uttering the expression, intends to hold the attention of the listener. But what does this Southern expression have to do with suretyship? Perhaps more than you might think, particularly if viewed in light of two recent legal decisions.The act of declaring the principal in default is an important concept in the law of suretyship. Many performance bond forms require the obligee to provide a declaration to the surety of the principal’s default in order to trigger the surety’s liability under the bond. Failure to deliver such a declaration in accordance with the terms of the performance bond may relieve the surety of liability. One commonly used standardized performance bond form, AIA Document A312, even states that the obligee is to notify the surety if the obligee is considering declaring the principal in default. The declaration and its delivery then are considered prerequisites to the liability of the surety under the performance bond; they have the effect of triggering the surety’s obligation to perform. Many courts have found the surety relieved of liability where the obligee failed to declare the principal in default and to deliver adequate notice of the default to the surety. Courts that have deviated from that view have applied a prejudice or injury test to assess the extent of recoverable damages from the surety, thereby still recognizing the importance of the obligee informing the surety about the principal’s default.
In a recent decision, the United States District Court, Western District of Tennessee, discussed the significance of the obligee’s default declaration in the context of a bonded project for runway reconstruction and extension at the Memphis International Airport. The obligee, an airport authority, contended that it was entitled to summary judgment, alleging that the construction contractor materially breached its construction contract by installing nonconforming lighting cable and that the surety failed to cure its principal’s deficient performance. The surety countered, arguing that the airport authority failed to provide the surety with notice of the contractor’s default, which, under the language of the bond, was a ‘condition precedent’ to the surety’s obligation to remedy the default. In denying the motion, the District Court cited several US Court of Appeals decisions in which sureties were not held liable where obligees failed to provide ‘clear, direct, and unequivocal’ declarations of default as required under the plain terms of the bonds. The District Court noted that two conditions were needed to establish the surety’s liability: (1) the principal must be in default and (2) the obligee must declare the principal in default. The District Court stated, that under the present facts, the surety has raised genuine issues of material fact regarding whether the airport authority actually declared the contractor in default and provided the surety with its intent to terminate the construction contract. The District Court observed that, although letters were sent expressing ‘exasperation’ by the representative of the airport authority, no evidence demonstrated the airport authority’s clear declaration of default and its immediate intent to terminate the contract. Rather, the record, in the form of the last written communication between the airport authority and the contractor, on which the surety was copied, revealed that the airport authority was still willing to provide the contractor with an additional opportunity to cure its breach. While the US District Court upheld the significance of a formal default declaration as a condition of the surety’s liability on the bond, another court, the Supreme Court of Washington State recently concluded otherwise. Interestingly, the performance bond language at issue was similar, if not identical, to that in the case before the US District Court (the bond was predicated on AIA Document A311). Unlike the US District Court, however, the Washington Supreme Court, after examining the bond language, concluded that the bond did not require a default declaration and that any such declaration solely was an option of the obligee if the obligee wished to exercise its right to terminate the contract. The obligee, a general contractor, did not declare the subcontractor in default before the subcontractor completed work, opting instead to supplement the subcontractor’s crews in an effort to complete the subcontract work on schedule. However, the general contractor did inform the surety about concerns it was having with the subcontractor’s performance. The subcontractor subsequently was not able to complete its work on time despite the assistance of additional crews, and some of the subcontract work allegedly was improper. The general contractor sued the subcontractor and its surety, where upon the subcontractor went out of business. The surety denied liability, arguing that its liability was conditioned on a declaration of default from the general contractor, which did not make such a declaration, an argument not found persuasive by the trial or appellate courts. The matter then went to the Supreme Court, which, in a labored bit of reasoning, found the exact bond wording which provided the US District Court with its rationale to mean that no formal declaration was needed. The Supreme Court reasoned that liability under the bond was subject to only one condition: the principal being in default. The Washington Supreme Court’s decision provides yet another challenge to the surety industry. As one justice related in a dissenting opinion, the Washington Supreme Court’s reading is inaccurate and has the effect of depriving the surety of its contractual rights to remedy its principal’s performance’that is, the surety is prevented from availing itself of its stated and bargained for options under the bond, losing its ability to control the costs of completion. One might view the default declaration, like the Southern expression ‘I do declare,’ as a statement by one party for the purpose of focusing the attention of another party on a matter of importance or emphasis. It is a needed and necessary delimiting condition for the surety’s liability under the bond. My hope, I do declare, is that the Washington Supreme Court’s view of formal default declarations becomes as ‘scarce as hen’s teeth’ and that future courts examining such sound surety principles won’t give such principles ‘the short end of the stick.’ 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. |
|
|
|
![]() Members and affiliates, and non-members, for an additional fee, will be able to use the NASBP Career Center to reach qualified candidates. This new resource provides features and options that employers and job seekers do not have through Pipeline, where members and affiliates previously announced jobs with NASBP. As part of the transition, NASBP is inviting interested parties to visit the NASBP Career Center http://www.nasbp.org/careers to create a new on-line account at no cost (the process takes less than 5 minutes), which allows everyone to take advantage of the new features and functionality, including: 1. A searchable resume database that is 100% devoted to matching individuals with bond producers, insurance agencies, brokers, and surety companies. When posting to the Career Center the categories include the following:
2. Auto notification, where employers can set the criteria for their firm’s ideal job candidate, and the NASBP Career Center will e-mail them when new resumes are a match. This option saves firms time by not having to visit the site every day to see if new candidates have been posted. 3. Job activity tracking, where an on-line account will include reports that show at a glance how effective a firm’s job posting is. Reports can be generated that show the number of individuals that have viewed the firm’s job, applied on-line, and how many times the firm’s job was sent out in a ‘job agent’ or ‘e-mailed to a friend.’ 4. Featured employer profiles, where firms can advertise themselves to a focused, qualified talent pool of industry professionals. Employers can promote their firm and include information about their company including their logo, web site, and a Google’ Map to the firm’s location. NASBP made a decision to launch the Career Center to help members and affiliates:
For job seekers, the NASBP Career Center is a free service that provides access to employers and jobs in the surety industry. In addition to posting their resumes, job seekers can browse and view available jobs based on their criteria and save those jobs for later review if they choose. Job seekers can also create a search agent to provide e-mail notifications of jobs that match their criteria. The Career Center also gives job seekers the option to post their resumes in a public (full resume) or confidential (identity and contact information withheld) environment at no charge. If the job seeker selects a confidential environment, an employer can only contact the applicant using a ‘blind’ e-mail. NASBP looks forward to continuing to provide members and affiliates with the best on-line resource for finding surety industry professionals nationwide. For more information about the NASBP Career Center, please call 1-888-491-8833 Ext. 1670 (Extension Required). |
|
|
|
NASBP has developed a new section of the NASBP web site to promote the Surety Underwriter Intern Program and to solicit host contractor and underwriter intern participation. This new section of the site, http://www.nasbp.org/suretyintern, provides detailed information and resources to both contractors and surety underwriters interested in participating in the Program.NASBP just recently matched several surety underwriter interns with host contractors through the Program, co-administered by NASBP, the Associated General Contractors of America (AGC), and The Surety & Fidelity Association of America (SFAA). The three organizations have been co-administrating this highly successful Program for about three decades permitting numerous young underwriters unprecedented access to the ‘real word’ experiences of contractors.
Through this national educational Program an underwriter from a surety company spends approximately one to two weeks with a contractor observing and studying operations both in the contractor’s office and on its job sites. The intern experiences the business of construction contracting firsthand. The Program’s goal is to help underwriters nationwide obtain a better understanding of the realities of contracting, the role of the surety underwriter, and the partnership that develops from the surety bonding relationship. Contractors typically host the intern for a five to ten day itinerary/schedule. Several contractors and interns who have participated in the Program recommend a 10-day itinerary/schedule. Click here for Sample Itineraries and click here for Sample Daily Activity Schedules that have been developed from contractors who have participated in the Program. The benefits of Program participation go two ways. Contractors that have participated in the Program say that they gained a more complete understanding of the concerns and perspective of underwriters in assessing construction contractors. The intern underwriter may help the host contractor to learn how and why the underwriter analyzes the financial, and organizational capabilities of the contractor, including the its business plan, history of operations, and management. By witnessing day-to-day contractor operations, such as the last-minute collection of final subcontractor and material pricing, surety underwriters, in turn, gain a better understanding of how contractors manage people, risk, work process, and finances. The intern gains a better appreciation of the pace, patterns, and processes that contractors follow on a daily and weekly basis. It is intended that the host contractor let the intern experience as many facets of the contractor’s business as possible during the itinerary/schedule, such as a bid day, so the underwriter can witness first-hand the ability of the contractor to handle numerous changes and the hectic environment of eleventh-hour bid tabulations. The intern and the host contractor will confer and set the appropriate schedule and activities for maximum learning. The surety company pays all of the intern’s travel, lodging, and incidental expenses incurred to participate in the Program. Some participants have created an orientation notebook. Click here for a sample of the table of contents of a notebook based on one a contractor created that can easily be modified for another’s use. Please note that interns are placed only with contractors who have no business connection with the sponsoring surety company. Contractors who would like to be a host for an intern and surety underwriters who would like to participate should contact NASBP at suretyintern@nasbp.org, phone (202) 686-3700 or fax (202) 686-3656, or click here to complete the Intern Form if you have an interest in participating as a surety underwriter intern, or click here to complete the Host Contractor Form if you have an interest in participating as a host contractor. Once NASBP is able to find a match, you will be contacted. |
|
|
|
The Office of Management and Budget (OMB) has invited the public to comment, by December 3, 2007, on the need to continue an information collection requirement which requires individuals, wishing to serve as sureties furnishing bid, payment and performance bonds on federal construction projects, to submit an Affidavit of Individual Surety (Standard Form (SF) 28) to contracting officers.The form is used to assist contracting officers in determining the acceptability of individuals proposed as sureties on federal projects. SF 28 requires the individual surety to identify and to describe the assets pledged to the government in support of the bonds, together with supporting documentation, all encumbrances, liens and judgments involving the assets, and all bonds for which the assets have been pledged in the last three years. SF 28 is to be completed by the individual surety under penalty of perjury.
The Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning SF 28. The clearance currently expires on February 29, 2008. The Proposed Rule was published in the Federal Register on October 3, 2007 (Federal Register Vol. 72, No. 191, at 56337). Public comments are invited on:
The SF 28 is used by all executive agencies, including the Department of Defense, to obtain information from individuals wishing to serve as sureties on federal projects. NASBP plans to submit written comments. Members and affiliates interested in submitting their own comments should send them to the General Services Administration, FAR Secretariat (VIR), 1800 F Street, NW., Room 4035, Washington, DC 20405 on or before December 3. Additional information about the public notice can be obtained from Patrick Conley, Contract Policy Division, GSA (202) 501-4770. |
|
|
|
![]() A Customs security area is defined by Customs regulations as: ‘the Federal inspection services area at any airport accommodating international air commerce designated for processing passengers, crew, their baggage and effects arriving from, or departing to, foreign countries, as well as the aircraft deplaning and ramp area and other restricted areas designated by the port director.’ The bond is quite simplistic in nature, a mere four short paragraphs:
The majority of the penalties issued by Customs related to this bond are due to the failure of employees to comply with the requirement to display or produce the Customs seal. Many are the result of employees forgetting the seal or ‘loaning’ their seal to another employee. The seal must be, at all times while in the security area, in the possession of the person in whose name it has been issued. However, this is not the only violation (‘default’) of a regulation that can result in a penalty being issued by Customs. Since the bond language requires that the Principal comply with all of the regulations, one must review the nine pages of ‘Customs Regulations’ that apply to fully understand the risk that a contractor/vendor client is assuming when filing this bond. In addition to assuming responsibility for each violation of the regulations by each and every one of its employees on site, the employer also has a number of additional responsibilities as required by the Customs regulations. Each time the contractor/vendor client violates any single regulation, Customs can issue a $1,000.00 penalty. These responsibilities include, but are not limited to:
Your clients need to understand that each violation of a single regulation by the employer, or each violation of any single regulation by any employee, is considered to be a default and may result in a $1,000 penalty for liquidated damages by Customs. For a contractor or vendor with a significant number of employees working in security areas, the violations can be numerous. The obligation of your contractor is limited only by the penalty of the bond. Multiple violations can result in a demand for a significant increase in the bond penalty by the port director. Following the tragic events of 9/11, Customs has provided little leeway in enforcement of these regulations. The Customs regulations may be found on the following web site: http://www.ecfr.gpoaccess.gov Type: Title 19 and go to Section 122. This is the fourth in a series of articles on Commercial Surety. Prepared by NASBP’s Commercial Surety Committee member, Paul D. Amstutz. Paul is Executive Vice President ‘ Surety of Roanoke Trade Services, Inc. in Schaumburg, Illinois. |
|
|
|
The U.S. Small Business Administration Office of Surety Guarantees has launched the Surety Bond Guarantee E-application System, an on-line application system to improve SBA’s review and approval process for small construction, service and supply companies to obtain surety bonds.Using the new on-line application system, or E-app system, construction businesses that need bonding to bid or perform public and private contracts can apply for SBA surety bond guarantee assistance 24 hours a day, seven days a week.
Now agents can use the new E-app System to enter the Agency’s Surety Bond Guarantee applications, to submit completed required SBA forms, and to forward information to the SBA. Click here to access instructions designed to guide an agent in how to use the new system http://www.sba.gov/eapplication/EAPPS_SB_AGENTS.html Before SBA can issue an Agent User ID/Password, agents need confirmation from each Surety Company for which they have been authorized to write bonds. After SBA receives confirmation, SBA will send the agent an Electronic Data Certification to sign and return. If a contractor accesses the system and does not have a surety bond agent, they will be shown a list of agents that participate in the SBG Program. Click here to view the instructions for contractors http://www.sba.gov/eapplication/eapps_sb_contractors.html Once the relationship between the contractor and agent is established in the system, the contractor can submit their application to their agent. The agent then will review it and input their portion of the application and submit it to SBA. Prior to submitting the application to SBA, the agent can send it back to the contractor for changes. The agent will be notified of SBA’s decision via e-mail. If the contractor does not want to submit their application to their agent electronically, the agent can input the entire application and submit it to SBA. The system populates the forms with the information that has been input, enabling the contractor and agent to print and sign them. Also, the Program forms have been revised and information has been consolidated. The new system offers the following advantages:
PowerPoint tutorials and User Manuals are designed specifically to help agents and contractors become acquainted with the system. The new online e-application capability, coupled with recent rule changes, is combining to make bonding more available to small and emerging businesses through the SBA Bond Guarantee Program. ‘Streamlined rules for small businesses and for surety companies alike, along with quick and easy online access, will make it easier for small and emerging contractors to gain access to surety bonds so they can bid on public construction projects,’ said SBA Administrator Steve Preston. ‘These changes will support small businesses nationwide, particularly construction contractors in the devastated Gulf Coast region and other disaster stricken areas around the U.S.’ To access the E-app system click here http://www.sba.gov/eapplication. Through the Surety Bond Guarantee (SBG) Program, the SBA works with participating surety companies to provide bid, payment, and performance bonds on contracts up to $2 million in value for small contractors by guaranteeing a percentage of losses sustained in the event of a default. |
|
|
|
![]()
ConsensusDOCS’ plans in the near future to eventually post samples of all of its documents on its web site, http://www.consensusdocs.org Purchasing Documents at Member/Affiliate Discount NASBP members and affiliates can receive up to 20% off their purchases of ConsensusDOCS forms if they insert the Partner Code, NASBP, and the Promotion Code, 400, when prompted during the purchase process from the ConsensusDOCS site. Commentaries Available Without Purchase ConsensusDOCS’ recently posted ConsensusDOCS Guidebook Commentaries that Specifically the ConsensusDOCS’ include the following commentaries:
ConsensusDOCS’ plans to post commentaries for additional documents as they are completed. To open each commentary after clicking the link above, right-click the document title and select ‘Save Target As”. Select the file location on your computer to which you wish to save the file. |
|
|
|
Acquisition and PromotionUSI Holdings Corporation announced the acquisition of Jericho, NY- based Armitage & Co. Armitage provides property & casualty and surety products and services to clients in the New York metropolitan area. Armitage will be combined with USI’s existing Woodbury, NY location.
Bill Haas at the Briarcliff, NY location was promoted to the role of Chief Executive Officer of USI Construction Practice Group. His responsibilities will include oversight of the New York, Westchester and Long Island Operations. Don Scotto assumes the role of President of USI Construction Practice Group of Long Island. USI is headquartered in Briarcliff Manor, NY and operates out of 66 offices in 18 states. Retirement After 33 years with Alliant Insurance Services, Inc., Jack T. Warnock, senior vice president and broker in the surety department, has announced his retirement. Having started with Robert F. Driver Company on Oct. 16, 1974 as a broker, Warnock steadily rose up through the company, running the surety department for the last 20 years and ultimately becoming one of the key members of the management team that purchased the company in 1998. In 2001, the Robert F. Driver Company was merged into what is known today as Alliant Insurance Services. Warnock, who has 40 years of surety experience with an emphasis in the construction industry, transferred the management of the surety department several years ago to Larry McMahon, first vice president, but had continued to assist with managing his accounts and the department. Warnock, former branch underwriter for Aetna Casualty and Surety (now known as Travelers), started for Aetna’s Albany, N.Y. office in 1967, before transferring to the Omaha, Neb. offices in 1968. Warnock then moved his family to San Diego in 1974 to join Alliant Insurance. Warnock is also the past president of the Surety Association of San Diego, as well as having been active in public relations efforts for NASBP and the Surety Information Office (SIO). |
|
Positions 1) SELECTIVE INSURANCE COMPANY OF AMERICA Location: Columbus, OH Description: Responsible for the supervision of bond production, underwriting activities and management functions. Oversees the acceptance and declination and rating of risks. Responsible for meeting profitability goals within assigned region and possibly multiple regions. Establishes and develops agency relationships for new marketing opportunities in all bond product lines. Reviews and determines appropriate underwriting business decisions within assigned region. Responsibilities:
Qualifications Required:
Preferred:
All qualified applicants will receive consideration for employment without regard to age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation or sex. Contact: Brian Schwartz 2) OLD REPUBLIC SURETY COMPANY a) For marketing-minded candidates who enjoy travel: Location: Dallas, TX Responsibilities:
Requirements:
Includes a company car and bonus programs. b) For desk underwriters desiring limited travel: Locations: Responsibilities:
Requirements:
Contact: Janell J. Manson 3) PINNACLE SURETY & INSURANCE SERVICES Job Location: Costa Mesa, CA 92626 Description: Seeking one seasoned professional bond producer with minimum book of $1,000,000 in premium. Top compensation package available for the right person. Qualifications: “Flexible” looking for the right person. Contact: Mark Richardson, Vice President |
|
|
|
![]() Lassiter Ware Insurance Willis Insurance Services of California |
|
|
|
The Department of the Treasury’s Listing of Approved Sureties (Department Circular 570) has been updated as of July 2, 2007 to reflect:
For a complete listing of all states where these companies are licensed to transact surety business, please refer to the Circular 570 at:http://fms.treas.gov/c570/c570.html and |
|
|
|
![]() Be sure to add the Articles Library to your browser ‘Favorites’ and check back regularly for new postings. SIO Revamps Online Store
The shopping cart is now organized so all materials specific to a particular audience are listed under each audience. If a brochure, for example, is appropriate for contractors, public owners, and students, it will be listed in each category. Check out SIO’s new online store today! |
|
![]() |
Get Important Surety Industry News & Info
Keep up with the latest industry news and NASBP programs, events, and activities by subscribing to NASBP Smartbrief.