May 2019

legislation

Defendant Attorneys Chastised by Judge in Case Brought by Pinnacle Surety

Pinnacle Surety, a professional surety bond agency, today announced that in a recent ruling, a magistrate judge chastised the defendants for citing a vacated opinion and misrepresenting precedent. The judge ruled in Pinnacle’s favor in a motion against Manion Stigger, LLP, Cooper & Elliott, LLC, G. Bruce Stigger and Rex H. Elliott regarding the bond agency’s ongoing breach of fiduciary duty case against the law firms and attorneys. Stigger and Elliot are represented by attorneys at Freund, Freeze & Arnold and Boehl Stopher & Graves, LLP. In the ruling the judge stated that the defendants and their attorneys “cited a Sixth Circuit opinion which hardly supports their stated proposition” and “a Fifth Circuit opinion without disclosing that it is vacated.” The defendants asserted that documents and emails in and outside the possession of Pinnacle Surety were privileged. The judge ruled against the law firms while noting that the defendants misrepresented precedent to the court. In the ruling, Judge Colin H. Lindsay said of the defendants: “A dearth of on-point case law is no excuse for misrepresenting precedent to the Court.” According to the original lawsuit filed in 2016, Manion Stigger and Cooper & Elliott, LLC secretly assisted two employees against Pinnacle while the bond firm was still represented by the same attorneys. In 2013, Pinnacle hired Manion Stigger and Cooper & Elliott to represent the company in a civil lawsuit brought by a third party regarding the employment of Todd Loehnert and Brian Ayres. That case was resolved with the third party; Loehnert and Ayres continued working for Pinnacle; and the attorneys were paid by Pinnacle. The original lawsuit states that “clearly during their representation of Pinnacle, defendants acted directly and materially adverse to Pinnacle by encouraging and assisting Pinnacle’s employees . . . to prematurely breach their three-year employment agreement with Pinnacle. The lawsuit now seeks damages for breaches of fiduciary duties, aiding and abetting breaches of fiduciary duties, intentional interference with an employment agreement, and civil conspiracy. https://apnews.com/Business%20Wire/aae2a53b387d4f608c5c56dec9415a58

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Canada: The End Of A Shareholder’s Corporate Duties And The End Of Suretyship: An Illustration

In June 2015, Location, a tool rental company, opened an account for the benefit of a company with which it was doing business, Boréalia. Boréalia obtained a thirty-day term to pay its bills and other benefits. Bussière was a shareholder of Boréalia, via his management company, and a director of Boréalia. Bussière is a party (with the other shareholders) to the standard contract of Location as a surety of Boréalia’s obligations In June 2016, Bussière sold his shares to other shareholders and resigned as director. He sent a written note to Location to inform it of the change in the shareholding and Board. A few months later, Boéralia and several shareholders became insolvent and defaulted under the Location Contract. Location claimed from Bussière as a surety the payment of bills issued subsequent to the date on which Bussière sold his shares and resigned. Bussière contested on the ground that his guarantee is valid as long as he remains involved in the company, and that the sale of his shares and his resignation as director had the effect of terminating his suretyship. Article 2363 Civil Code of Quebec (C.C.Q.) provides that a person’s suretyship attached to the exercise by that person of particular duties within the company ends with the cessation of these duties. Location argued that the status of shareholder is not a duty and that the sale of shares cannot nullify the surety. The leading case remains that of the Supreme Court of Canada in the case Épiciers unis Métro-Richelieu c. Collin, (2004) 3 R. C. S. 257 which held that article 2363 CCQ should be interpreted broadly and liberally, its purpose being to protect the surety. The Supreme Court noted that this article is not one of public order so that the parties can depart from it, which was not the case here. In order to determine whether the end of a person’s corporate duties enables him to remove his liability as a surety arising therefrom, it is necessary to consider the common intention of the parties as to the creation of the suretyship in relation with the person’s duties and status within the corporation. Here, the court noted that the opening of the account was based on a verification of the solvency and the commitment of the shareholders, and thus that it is the attribute which took precedence for Location. The end of the shareholder’s status signified the end of the validity of the surety from that date onward. Conclusion. If a supplier of goods or services provides credit to a corporation whose shareholders or officers act as sureties, and does not want, as a result of article 2363 CCQ, to lose the benefit of their suretyship in the event of the withdrawal of one or more of such persons as shareholders, directors or officers, it must be clearly provided that the termination of the related status or duties does not put an end to the surety. http://www.mondaq.com/canada/x/807244/Shareholders/The+End+of+a+Shareholders+Corporate+Duties+and+the+End+of+Suretyship+an+Illustration

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The right technology partner can help carriers outlast market challenges

Innovation in technology, the growing use and availability of data, and changing customer expectations are all putting pressure on the insurance industry to transform – and fast. Alongside other forces, like the competition for new talent, product innovation, and regulatory influence, carriers are having to figure out how to navigate a wave of changes, according to Celent’s 2019 Pace of Change report, which was presented at Duck Creek Technologies’ annual Formation meeting. To feel out property and casualty companies’ progress against six key elements of change, Celent conducted a survey of these firms across the globe, and determined that the industry overall is taking steps to improve speed to market, though there are bumps along the road to transformation when it comes to other factors One of the major obstacles is customer expectations, and how quickly they’re changing because of technology titans. “When you look at customer expectations, we all know that there are truly profound companies that are reshaping what the expectation is,” said Michael Jackowski, CEO of Duck Creek, during the opening keynote of Formation ’19. He pointed to the ‘Buy Now’ button on Amazon and the ‘Next Episode’ button on Netflix that mean consumers can have products and services delivered almost instantly. Jackowski added that ease of purchase is “table stakes, and now the new thing we’re striving for is transparency.” The transparency factor in insurance is one of the things that companies should be considering as they move along their transformation journey. “What is transparency in our industry, in insurance? Is it telling a claimant that a field adjuster is going to go see your car over next few days, they’re going to write an estimate and we’ll give you a call when it’s done?” said Jackowski. “What if you can text that customer right then, they can download the mobile app, they can take the pictures of the car and the damage themselves,” and then after receiving an estimate, that customer can be prompted to go to a repair shop or get a cash payment on the spot. “This is transparency, and I think the smarter companies figure out how to involve customers [because] involvement equals transparency,” he said. Over the past year, Duck Creek has been committed to the success of insurance companies, expanding its relationships with existing customers and welcoming new customers into the Duck Creek fold. Whether it’s helping companies make services and processes available in the cloud, or bringing new insurtechs on to its platform, Duck Creek is dedicated to meeting the unique needs of each carrier that it works with. The theme of the day for the company is “Transformation by design,” which ties back to the headwinds putting pressure on the insurance industry to change for the better, and remain relevant in the eyes of consumers. “When you really think about meaningful and complex change, it just doesn’t happen. It has to be intentional [or] by design. The real question is, is there a standard blueprint, is there a playbook that you can execute in order to do your transformation? And I’ll tell you the answer is ‘no’,” Jackowski told the audience at Formation ‘19. “Carriers are a lot like people, and when you go look at people everybody has their own unique values and goals and ambitions, and, just like people, I would say that carriers may share this common purpose, and their common purpose is to protect their customers and be there in their time of need.” Transformational forces are making a strong case for change for insurance companies, and Duck Creek is enabling digital transformation to help its customers become connected, smart, and nimble, and take these forces head-on. “Becoming a digital native carrier is not easy, and in order to do it, you need to really start thinking about how you can accelerate the adoption of some really cool emerging technologies,” explained Jackowski, adding that new data sources are needed to address and price emerging risks, such as cyber, which is growing rapidly, alongside other challenges, like more M&A activity. “Carriers sit in the middle of this unprecedented technology change as well as this business climate, and the one thing that we see on a role here is to serve as that buffer of change.” As it looks to the future, Duck Creek has a few top-of-mind goals to lend a hand as insurance companies, and the industry as a whole, undergoes rapid change. “We’re going to continue this journey on being the most open platform in the marketplace,” said Jackowski. “We’re going to make some huge investments to bring you better tools,” and the company is also committed to bringing a new set of visual design standards to the market that will allow for a more elegant user design interface, making the work of carriers and their partners that much simpler. Being agile in the marketplace and delivering change quickly will help insurance companies stay competitive, and continuously tune their products and pricing to fit the needs of their end customers. The Duck Creek CEO pointed out that, after all, you don’t need to outrun the bear, you just need to outrun the slowest runner. “When you can do that in an agile sense in insurance, you win,” he said. https://www.insurancebusinessmag.com/us/news/technology/the-right-technology-partner-can-help-carriers-outlast-market-challenges-167402.aspx

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FM Global EVP: ‘AI is going to be a huge factor in the insurance industry’

Innovation is one of the biggest buzz words in insurance right now. It means different things to different people. While one firm might see innovation as investment into new ideas coming out of the insurtech ecosystem, another might see it as using technology to make improvements to something they’ve always done. Regardless of how insurance companies tackle innovation, there are two common themes that seem to penetrate each interpretation – data analytics and artificial intelligence (AI). “I believe AI is going to be a huge factor in the insurance industry – it just has to be,” said Bret Ahnell, executive vice president at FM Global, a global risk management and insurance solutions provider for complex property risks. “I think the winning users of AI going forward will be defined by the companies that have good data. What are you going to do AI on if you don’t have good data? “FM Global has been a data-driven company for decades. We know where to find good data, so now we’re looking at how to turn that data into powerful knowledge for our clients. I know a lot of companies talk about data, and many are focused on the question: ‘How can we get better at pricing our product?’ At FM Global, we’re really looking at our data with the question: ‘How can we help our clients make more informed decisions on where they should invest capital to improve their risk and avoid major disasters?’ That’s where we’ve focused a lot of our attention, and AI can help us with that.” AI innovation runs the gamut from ‘act like a human’ to ‘think like a human’. Front-end robotics can be trained with AI to carry out repetitive tasks and bring efficiency gains. One of the more obvious examples of that in the property insurance space would be the use of drone technology in property inspections pre- and post-loss. Drones can be flown over a roof, they can collect granular data of up to 3cm per pixel, and they can feed that data back to an expert on the ground who can – as Ahnell put it – “turn that data into powerful knowledge.” “The really big answer comes when you get into the more cognitive solutions [aka, when AI is trained to think like a human],” Ahnell told Insurance Business. “From an analyzation of risk perspective, when we go out to a location, we gather over 700 pieces of individual data at that location, and we do that at 65,000 locations around the world. “If a machine can take all of that data, and it’s trained in what to look for and what data to feed back to the human, we’ll be able to start making really informed decisions much quicker. It’s more efficient having a machine sift through the data than asking a human to look through everything and find a needle in a haystack. Technology is our future, and AI is going to play a big part of that in our opinion.” Ahnell has been with FM Global for 32 years. About five-years-ago, he moved up to corporate headquarters with the task of overseeing the company’s global strategy around innovation, AI, data analytics and more. When strategizing around something as expansive as innovation, it’s important to stay open-minded and set realistic short and long-term goals, he explained. “What does a world look like where we don’t have boots on the ground doing field engineering? We have about 1,900 field engineers out there visiting 65,000 client locations around the world. What does the world look like if those field engineers get replaced by technology?” Ahnell commented. “It’s important to ask those types of questions and then say: ‘We might not be able to answer that question entirely in the next three years, but let’s start working towards that. What technology solutions can we identify that will put us in the right direction?’ Others might be doing it, but what we don’t want to have is somebody else coming up with a solution before we do. We need to be there first.” https://www.insurancebusinessmag.com/us/news/technology/fm-global-evp-ai-is-going-to-be-a-huge-factor-in-the-insurance-industry-166800.aspx

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legislation

Ohio Court of Appeals Confirms Applicability of Statute of Repose to Contract Claims and Sureties

This decision is a major victory for Ohio contractors and their sureties. The Fifth District Court of Appeals of Ohio issued a recent decision confirming that Ohio’s construction statute of repose, R.C. 2305.131, applies to breach of contract claims. It also confirmed that sureties are entitled to rely on the statute of repose as a defense to claims under the bond. The Fifth District affirmed the Stark County Court of Common Pleas’ decision to grant motions to dismiss filed by a contractor, its surety, and the project architect. The complaint asserted breach of contract claims against each defendant, alleging that the architect and contractor breached their respective contractual duties by improperly designing and constructing a school. Relying on a statutory public works bond form, the school district claimed that the contractor’s surety was liable for all damages arising from the contractor’s default. As counsel for the surety and co-counsel for the contractor, Hahn Loeser & Parks LLP filed motions to dismiss the complaint pursuant to the statute of repose because the complaint was filed more than ten years after substantial completion of the project. Relying on dated Supreme Court precedent applying a prior version of the statute of repose, the plaintiff countered that the statute of repose applies only to tort claims and not to breach of contract claims. The plaintiff also claimed that the surety was not permitted to use the statute of repose as a defense, despite long-standing Ohio law which generally allows a surety to argue any defense available to the principal (other than certain personal defenses such as bankruptcy). The trial court rejected the plaintiff’s arguments and granted each defendant’s motion to dismiss. On appeal, the Fifth District saw no reason to disturb the trial court’s judgment. As the unanimous opinion noted, just over a year ago the Fifth District held the current version of the statute of repose applied to breach of contract claims in State by and through Wray v. Karl R. Rohrer Associates, Inc., No. 2017AP030008, 2018-Ohio-65. The Rohrer decision was based on the plain language of the statute of repose as well as uncodified law which plainly demonstrated the General Assembly’s broad intent when it amended the statute of repose. In the recent opinion, the Fifth District correctly recognized that there was no need to “overrule or re-visit” its decision in Rohrer. The Fifth District also affirmed the trial court’s rejection of the plaintiff’s novel theory that sureties are not protected by the statute of repose. The opinion recited and approved the well-settled principles of Ohio suretyship law allowing sureties to argue defenses available to their principals. Lastly, the court noted that the plaintiff itself alleged in the complaint that the surety was only liable “to the same extent as” the contractor, so if the claim was barred as to the contractor then it must likewise be barred as to the surety. Bottom Line This decision is an important confirmation of the broad applicability of Ohio’s construction statute of repose––not only that it applies to breach of contract claims as well as tort claims, but also that it applies to sureties. The Ohio Supreme Court will issue its decision addressing the scope of the construction statute of repose in New Riegel Local School District Board of Education et al. v. The Buehrer Group Architecture & Engineering, Inc., No. 2019-0189. The parties in the New Riegel case presented many of the same arguments presented in the appeal. The court conducted oral argument in the New Riegel case on March 5, 2019, and a decision is expected this summer or early fall… This opinion confirms the importance of maintaining complete project files in order to properly defend against claims. Without proper project documentation, contractors and sureties may have to go through costly and time-consuming discovery practice in order to get the information needed to support a statute of repose argument. By maintaining proper project documentation confirming the date of substantial completion, contractors and sureties can save significant time and expense in litigation. https://www.jdsupra.com/legalnews/ohio-court-of-appeals-confirms-78137/

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‘Busiest’ construction season ever underway in Toronto with $1B in projects in the works

‘We just can’t afford to let our infrastructure continue to age,’ Mayor John Tory says Toronto has embarked on its “busiest” construction season ever with slightly more than $1 billion budgeted this year for work on roads, bridges, expressways, sewers and water mains, Mayor John Tory says. “We just can’t afford to let our infrastructure continue to age,” Tory told reporters at a news conference at city hall on Monday. “We’ve got to get on with the construction season.” Toronto’s transportation and water infrastructure is used by millions of city residents, businesses and visitors every day and that infrastructure needs to be reviewed, renewed and upgraded to ensure the city can cope with booming growth, he said. “Over time, that use by all of those people, increasing numbers of people, takes its toll.” Tory described the schedule as “robust” and the funding commitments as “massive.” The projects will ultimately improve daily life in Toronto, he added. Expect a ‘busier’ summer, mayor says The mayor said the projects will cause disruption but it’s important to remember that each project represents tax dollars at work. “It will be a busier summer, with all of this work on our roads taking place.” The mayor said the money set aside for infrastructure projects needs to “stay put.” Cuts by the provincial government could put these commitments at risk, he added. Projects ‘need to be planned well in advance’ “Our city cannot afford to make tough financial decisions after the budget has already been approved. These investments need to be planned well in advance,” he said. “We will remind everyone, including the government of Ontario, that Toronto is the economic engine of this province and this country.” The planned work will result in paving of about 140 kilometres of roads and improvements to about 200 kilometres of sewers and water mains, the city said in a news release on Monday. Construction will take place across Toronto on more than 600 roads. The city said it will try to co-ordinate construction to minimize disruption. Read More … https://www.cbc.ca/news/canada/toronto/busiest-construction-season-launched-toronto-john-tory-1.5134369

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Trade credit insurance policy payouts hit 10-year high in Northern Ireland

The level of payouts on trade credit insurance policies have reached a 10-year high in Northern Ireland, an industry expert has said. Nigel Birney, head of trade credit at Willis Towers Watson, has today warned that the spike in credit insurance claims is a reflection of challenges facing Northern Ireland companies amid what he called an extremely worrying number of business insolvencies. The figures from insurance firm Atradius showed the number of recent claims being made in respect of Northern Irish businesses defaulting or failing had increased significantly, representing the highest volume of claims received in a decade. The insurer also found that there has been a 50% year-on-year jump in high value claims last year, ie. those above £90,000. Insolvency specialists Begbies Traynor last month found that almost 7,000 businesses in Northern Ireland were recorded as being in a state of distress in the first three months of 2019. Mr Birney said the backdrop of Brexit and the continuing Stormont limbo is unlikely to offer any significant respite from the pressures weighing on the economy, as the trading environment in Northern Ireland continues to face challenging times. Willis Towers Watson on Creating an Inclusive Environment He said in many cases, claims payments from trade credit insurers have offered a lifeline to hundreds of NI businesses, with payouts in 2018 at significant levels. He continued: “The increase in claims is a barometer of what is happening in the wider local economy and unfortunately it doesn’t bode well. “We are now at a 10-year high in terms of payouts which is a clear indication of what is going on. “In 2018 we estimate that around £8m in claims was paid to Northern Ireland companies as a result of the failure of one of their customers and unfortunately the trend has continued into Q1 2019 with the failure of a number of high profile local companies.” He said mitigating risk and ensuring protection from non-payment is arguably more vital now than ever before. Research by Willis Towers Watson found companies feeling enormous strain on cashflow, with the average number ‘days sales outstanding’, creeping up, bringing businesses to the brink of failure, particularly in the construction and retail sector. Tony Gordon, head of risk services at Atradius Ireland, said: “The trading environment for business in Northern Ireland continues to be challenging. 2018 was a tough year for businesses and for the economy and the figures for Q1 2019 are showing no degree of comfort that a recovery is imminent with upward trend in claims volumes continuing. “Headline news often pinpoints key sectors such as construction and also foods and agriculture, but in reality, the challenges impact across all sectors. “The key is to have access to up-to-date information and as underwriters it is vital for us to work closely with businesses, constantly monitoring changes and impacts.” https://www.belfasttelegraph.co.uk/business/northern-ireland/trade-credit-insurance-policy-payouts-hit-10year-high-in-northern-ireland-38107515.html

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Angie’s List: What does bonded and insured really mean?

Many contractors will promote that they’re bonded and insured. But what does that really mean for you as a consumer? In this week’s Angie’s List Report, we learn from Angie Hicks, the importance of asking about bonds and insurance. You’ll see it on their ads, their website, maybe even the side of their truck. The roofer or builder you might hire is ‘bonded and insured.’ Although contractors promote this status, few consumers truly know what it means, let alone what it means if their contractor doesn’t have it. A bonded contractor has purchased a surety bond, and that’s basically like an insurance policy against acts from the contractor. So, for example, if the contractor leaves the job unfinished or fails to pay for supplies, these types of things will protect the consumer because they can put a claim in against that bond. Consumer protections like a surety or fidelity bond are especially important for those high-dollar home improvement projects that could really cost you if they go wrong. In addition to bonding, be sure to ask about the types of insurance your contractor has, too. General liability insurance is going to cover you if there’s damage done your property outside the project. So a great example would be if they’re there to mow your lawn but they run into your mailbox while mowing your lawn, their insurance would potentially cover that mailbox. The other type of insurance that’s important is workers comp insurance. And that’s going to cover the contractor’s employees if someone is hurt on your property. So, if they’re redoing your roof, someone falls off the roof, that workers comp insurance is going to cover their injuries instead of it actually coming back and hitting your homeowner’s insurance. It may be extra work to find the right professional with both bonding and insurance, but it’ll be worth it to you as the homeowner, in the event that things don’t go exactly as planned./p> Hiring a contractor that’s bonded and insured is a protection to the consumer. It’s going to financially protect you if things go wrong. And it’ll also keep things from hitting your homeowner’s insurance, which could cause your premium to go up, or could cause you to have to pay a deductible. https://41nbc.com/2019/05/10/angies-list-bonded-insured-really-mean/

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SBA Recognizes the Office of Surety Guarantees Award Winners

WASHINGTON, May 7, 2019 /PRNewswire/ — The U.S. Small Business Administration (SBA) recognizes the Office of Surety Guarantees award winners for their continued work to help small contracting businesses acquire surety bonds. Three SBA surety bond partners were selected to receive awards based on their participation, activity, claims and recovery, and their commitment to helping small businesses obtain contracts with both government and private sector entities. Crum & Forster was recognized as Surety of the Year. The Surety Place and Kenneth Turner of KOG International, Inc. were honored as Surety Agency of the Year and Surety Agent of the Year, respectively. “The success of the Surety Bond Guarantee (SBG) Program is a direct result of our great relationship with the surety industry. The awards are an important way to recognize and thank our partners for helping small and emerging businesses requiring surety credit in the marketplace,” said Peter C. Gibbs, Director for the Office of Surety Guarantees. Surety of the Year award recipient, Crum & Forster, has been a participant in the SBA’s Surety Bond Guarantee Prior Approval program since 2017. Despite their short time as an SBA partner surety company, Crum & Forster has grown their activity by over 4,000% and has assisted over 100 small and emerging businesses in partnership with SBA. Crum & Forster has a history of focusing on the needs of its clients and has been providing bonding solutions since 1900 and insurance since 1822. Surety Agency of the Year, Surety Placement Services, LLC dba The Surety Place, is a bond only agency in Scottsdale, Arizona. They have been working with the SBA since 2010 providing bonds in all 50 states. Founded in 2002, The Surety Place provides tailored bonding solutions through knowledgeable staff with over 45 years of combined surety experience. The Surety Agent of the Year, Kenneth C. Turner of KOG International, Inc., has been active in the surety industry since 1996. He has developed an extensive network of surety industry contacts and with years of expertise brings these resources together to better serve his clients. Turner placed his first client in the SBA’s SBG Program in 2003 and continues to actively promote SBA-backed surety bonds to numerous small businesses today. The SBA Surety Bond Guarantee program has 36 surety partners, 350 active authorized agents nationwide and guaranteed more than 10,000 bonds with a contract value of over $6 billion in fiscal year 2018. More information about the SBA’s Surety Bond Guarantee Program is available at www.sba.gov. Questions from surety companies may be directed to Peter C. Gibbs, Director of the Office of Surety Guarantees, at [email protected]. https://insurancenewsnet.com/oarticle/sba-recognizes-the-office-of-surety-guarantees-award-winners#.XNrsCY5KiUk

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Surety Bond Producers Keep Eye Out For Illegal Waivers

A report from the annual convention of surety brokers and agents The surety bond industry regularly reminds state and local governments, politely, that public works in all states must involve surety bonds That’s the law. And the National Association of Surety Bond Producers, the bond agents trade group, has been letting state and local officials know, in writing. The reminder letters are a small but telling part of the surety industry’s ongoing efforts to defend laws and rules requiring bonds. That also helps the industry hold on to its market share. Since last year, the NASBP has been sprucing up the industry’s image with a media campaign. The campaign and the letters are needed because of inroads by subcontractor default insurance, a competing product, and the tendency of owners to sometimes waive bond requirements. Robert Shaw, outgoing president of the NASBP, reminded his colleagues in a welcome to the group’s annual convention in Austin earlier this month that his theme has been “sell more bonds.” Shaw also made a point of thanking the association staff for reminding state and local governments of their obligations under state and local laws and rules. In addition to project completion guarantees, Shaw said in an interview, surety bonds guarantee payments “and are the only product that provides all the protections.” Just how often state and local governments waive surety bonds on projects isn’t clear. But when the NASBP staff hears about a bond being waived, it issues a letter explaining the risks and issues raised in violating state surety requirements. The surety laws on the books in all 50 states are known as the Little Miller Acts, named for the federal law requiring surety protection on U.S. public works. The Miller Act requires that prime contractors for the construction, alteration, or repair of projects valued at more than $100,000 furnish a completion and a payment bond, according to the U.S. General Services Administration. Federal Acquisition Regulation (FAR) Part 28 requires the bonds only on contracts that exceed $150,000. The payment bond protects subs and material suppliers. Other protections may cover smaller projects. State surety laws vary. Most states require bonds to cover the full contract value, but there are exceptions. Alabama only requires a payment bond at 50% of the total contract value, according to the website of National Surety Services, an agency. The NASBP staff refers to the letters it sends out as comment letters. Mark McCallum, the association’s chief executive, said in an interview that state and local officials may not know about surety requirements or what happens if they are violated. So when the association staff hears about a bond being waived, NASBP’s job “is to educate them.” The letters go out from Martha Perkins, the association’s general counsel. “We’ll put in the actual language of the statute or rule or regulation and say that this basically violates the law and you need to fix it,” she said. There is another type of educational letter that NASBP sends out. It explains to state and local officials that requiring bidders to supply only bonds from sureties with the highest financial strength ratings restricts the pool of competition of among contractors—and is very likely unnecessary. For example, a state or local government that insists that contractors provide bonds only from sureties with an A+ rating may not understand that a rating of A- is considered excellent. Opening up the range of bonds, said McCallum, opens the field of competition to more small or minority contractors while still providing a very reliable guarantee. Some state surety laws or rules do specify that contractors supply bonds of a particularly financial strength rating. A company such as A.M. Best Co., for example, provides a rating (from A+ to D) and a financial size category, according to the Surety & Fidelity Association of America, a trade group. Financial strength ratings “are very important and we should always be mindful of them,” said McCallum. “But if you reach for the moon you are eliminating the opportunity of many contractors to compete for that work as well as increasing the price.” https://www.enr.com/articles/46783-surety-bond-producers-keep-eye-out-for-illegal-waivers

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