Georgia Tech Procurement Assistance Center

The definition of a subcontractor, and why it matters

By

What is a subcontractor?

The answer to this question seems obvious – a subcontractor is a contractor that contracts with the prime contractor to perform a scope of work on a construction project.

However, it is not always easy to distinguish a subcontractor from a materials supplier (sometimes referred to as a “materialman”). That distinction is important in the context of claims by lower-tier subcontractors or materials suppliers on payment bonds, such as those provided by prime contractors on federal and state public works projects. That is, a lower-tier subcontractor or materials supplier may not be entitled to recovery from a payment bond if its contract is with a materials supplier instead of a subcontractor. Therefore, identifying the role of the party with whom a contractor is contracting is a key task the prudent contractor will perform at the outset of a project.

This distinction is most important in the context of federal public works projects. For those projects, the Miller Act restricts claimants on payment bonds to those who had a contract with the prime contractor and those who had a contract with a subcontractor, provided that in the latter case the claimant provides notice to the prime contractor. In other words, if a firm has a contract with a materials supplier, as opposed to a subcontractor, the firm does not have entitlement to payment under the bond. Courts look at the “total relationship” between the parties to determine if the party in question is a subcontractor or materials supplier.

Courts have applied a balancing test to make this determination, with some factors weighing in favor of a subcontractor relationship and other factors weighing in favor of a materials supplier relationship.

Keep reading this article at: https://idahobusinessreview.com/2019/02/28/the-definition-of-a-subcontractor-and-why-it-matters/

SBA announces decrease in surety bond guarantee fees

By

The U.S. Small Business Administration (SBA) this week announced the first fee decrease in Surety Bond Guarantees in 12 years.

The fee decrease will be in effect for guaranteed bonds approved during fiscal year 2019, taking effect October 1, 2018 and ending September 30, 2019.

SBA’s Surety Bond Guarantee (SBG) program is reducing the surety fee from 26 percent to 20 percent of the bond premium charged to the small businesses and is reducing its contractor fee from $7.29 per thousand dollars of the contract amount to $6.00 per thousand dollars of the contract amount.

“Reducing the SBG program fees will not only directly help small businesses, but also will incentivize surety companies and their agents to increase support for small businesses in the marketplace,” said Peter C. Gibbs, Acting Director of SBA’s Office of Surety Guarantees.

Under the SBG program, the SBA guarantees bid, payment, and performance bonds for small and emerging contractors who cannot obtain surety bonds through regular commercial channels.  SBA guarantees contracts up to $10 million, including the streamlined QuickApp application for those up to $400,000.

The SBA’s guarantee gives sureties an incentive to provide bonding for small businesses and, thereby, assists small businesses in obtaining greater access to contracting opportunities. Currently, there are 34 participating sureties and over 350 active agents in the SBG program.  On average, completed surety bond applications are reviewed and processed in less than two days.

The program is currently outperforming its previous year results yielding 27,000 jobs supported, 3,000 final bonds, and $1.7 billion in final bond contract amounts in fiscal year 2018.

For more information about this decrease or to obtain assistance, contact Jermanne Perry, Senior Management Analyst, Office of Surety Guarantees, (202) 401-8275; jermanne.perry@sba.gov, or your local SBA District Office.

SBA makes changes to its surety bond program

By

The U.S. Small Business Administration (SBA) has noted two important changes to its Surety Bond Guarantee (SBG) Program that will increase contract opportunities for small contractors, supporting them to grow their business operations.  The changes became effective on September 20, 2017.

The changes have the effect of increasing the guarantee percentage in the Preferred Surety Bond Program from no more than 70 percent to no more than 90 percent.  The SBA’s guarantee is now 90 percent if the original contract amount is $100,000 or less, or if the bond is issued to a small business that is owned and controlled by socially or economically disadvantaged individuals, veterans, service disabled veterans, or certified HUBZone and 8(a) businesses.  All other guarantees are 80 percent.

In addition, the eligible contract amount for the Quick Bond Application (Quick Bond) increased to $400,000 from $250,000.  The Quick Bond is a streamlined application process, with reduced paperwork requirements, that is used in the Prior Approval Program for smaller contract amounts.  SBA’s review and approval requires minimal time, allowing small businesses to bid on and compete for contracting opportunities without delay.

Through its SBG Program, consisting of the Prior Approval and the Preferred Surety Bond Programs, the SBA guarantees bid, payment and performance bonds for contracts that do not exceed $6.5 million, and up to $10 million with a federal contracting officer’s certification.  The SBA’s guarantee encourages the surety company to issue a bond that it would not otherwise provide for a small business.

For more information on the SBA’s Surety Bond Guarantee Program, visit www.sba.gov/surety-bonds.

“Reverse” False Claims Act liability extended to bonding companies

By

On Monday, the U.S. District Court for the District of Columbia ruled that bonding companies can be held liable for treble damages under the False Claims Act for issuing surety bonds to construction companies that falsely claim to be a Service-Disabled Veteran-Owned Small Business (SDVOSB).

In a novel reverse False Claims Act case, whistleblower Andrew Scollick alleged that the bonding companies “knew or should have known” the construction companies were shell companies acting as a front for larger non-veteran owned entities violating the government’s contracting requirements.

A reverse false claim action can occur when defendants knowingly make a false statement in order to avoid having to pay the government when payment is otherwise due in violation of 31 U.S.C. § 3729(a)(1)(G) (reverse false claims).  See United States ex. rel. Scollick v. Narula, Case No: 14-cv-01339-RCL (District Court, District of Columbia. July 31, 2017).

Under the Miller Act, government construction contractors must post bid bonds, performance bonds, and payment bonds that guarantee that the contractor will perform the work according to the terms of the contract. In this case, the contract terms required that the construction be performed by a SDVOSB entity.  Michael Kohn, of Kohn, Kohn & Colapinto, who represents the whistleblower, argued that given their role in providing a surety bond to the contractor the bonding companies would know whether the invoicing being billed against the contract is being performed by a SDVOSB.  The district court agreed and found that a “reverse false claims” violation occurred because the bonding company knew or should have known that the construction organization was not a SDVOSB and the act of issuing surety bonds furthered the fraud.  As a result, the bonding companies were held legally obligated to return to the government funds the bonding company knew to be paid to contractor firms fraudulently posing as SDVOSBs. Being held liable under the False Claims Act means that treble damages will be awarded for every dollar up to the amount of the bond that the government paid out under each contract.

Because of the substantial dollar amounts involved, it is not all that uncommon for contractors to falsify service-disabled veteran status. Holding bonding companies liable when they have reason to know of the fraud could have an immense impact on stamping out such contract fraud. “Holding bonding companies liable for treble damages in these types of case will have a huge impact on preventing fraud in government contracts and will help ensure these contracts go to disabled veteran-owned companies as intended,” said Kohn.

The Scollick case alleges that two of the largest surety bonding companies, Hanover Insurance Company and Hudson Insurance Company, knowingly bonded dozens of Veteran Administration construction contracts totaling more than $12.5 million with the knowledge that the bonded contractors did not qualify as service-disabled, veteran-owned small businesses.

 

Source: http://www.webwire.com/ViewPressRel.asp?aId=211708

SBA proposes to amend business loan and surety bond programs

By

The U.S. Small Business Administration (SBA), has proposed a rule that is says will simplify the guidelines for determining “affiliation” for eligibility based on size.

SBA logo smallIf the rule is adopted, it will affect SBA’s Surety Bond Guarantee Program; business loan programs (which consists of the 7(a) Loan Program and the Business Disaster Loan Program); the Microloan Program; and the Development Company Program (i.e. 504 Loan Program).

This proposed rule would redefine affiliation for all five Programs, affecting eligibility determinations.  Download the proposed rule here: http://www.gpo.gov/fdsys/pkg/FR-2015-10-02/pdf/2015-25204.pdf.

Public comments are due on, or before, December 1, 2015.

Webinar on surety bonds to be presented April 17th

By

The U.S. Small Business Administration’s Surety Bond Guarantee Program helps small business get bonded.  If you wish to learn about this program, you are invited to participate in a free, live webinar on Thursday, April 17, 2014 from 10:00 to 11:00 am EDT.

This webinar is ideal for  small businesses with:

  • Limited financial resources
  • No prior bonded work experience
  • Been in business less than three years
  • Desire to increase your current bonding capacity

The webinar will cover Contract Bonds, including:

  • What they are and why they are required
  • How to get pre-qualified
  • Working capital and bank support

The webinar also will provide complete information about SBA’s Surety Bond Guarantee Program, including:

  • Program eligibility
  • Required information
  • Application process and fees

Advance registration is required.  Please register online at http://events.sba.gov/eventmanagement/EventRegistration.aspx?id=9a6d088f-24b1-e311-abc5-02bfa56e2a24 

Date:                    Thursday, April 17, 2014

Time:                    10:00 am – 11 am

Internet:        https://connect16.uc.att.com/sba/meet/?ExEventID=87462470 (copy the link into your browser to attend).

Phone:            888-858-2144 and then enter meeting code 7462470# to connect by phone.

Prepare in advance for the conference at: https://connect16.uc.att.com/sba/Prepare

For more information please contact Ms. Melanie Bryant at 404-331-0100, ext. 603 or melanie.bryant@sba.gov.

SBA issues final rule on surety bond guarantee program

By

In a rule (79 Fed. Reg. 2084) scheduled to go into effect on Feb. 12, 2014, the Small Business Administration (SBA) is modifying its Surety Bond Guarantee Program to incorporate certain provisions of the National Defense Authorization Act of Fiscal Year 2013 (NDAA).  This includes provisions that increase the contract amounts for which SBA is authorized to guarantee bonds, grant SBA the authority to partially deny liability under its bond guarantee, and prohibit SBA from denying liability based on material information that was provided as part of the guarantee application in the Prior Approval Program.

The rule also makes changes to the Quick Bond Guarantee Application and Agreement, the timeframes for taking certain actions related to claims, and the dollar threshold for determining when a change in the Contract or bond amounts meets certain criteria or requires certain action. Finally, the final rule eliminates references to the provisions of the American Recovery and Reinvestment Act of 2009 (Recovery Act) that has expired.

The new rule can be downloaded here: 79 Fed. Reg. 2084

SBA triples surety bond guarantee ceiling

By

A major revision in the U.S. Small Business Administration’s Surety Bond Guarantee (SBG) Program more than triples the eligible contract amount, from $2 million to $6.5 million, the Agency will guarantee on surety bonds for both public and private contracts. The higher surety bond guarantee limits are expected to help construction and service sector small businesses gain greater access to private and public contracts and secure larger contracts vital to small business growth.

“These new contract ceilings are one more way we can help small businesses, particularly in the construction and service sectors, compete for and win critical contracting opportunities that help them grow their businesses and create jobs,” SBA Administrator Karen Mills said. “Additionally, these changes, which are enthusiastically supported across the surety industry and small business community, will help spur economic growth and recovery in areas that have been hard hit by disasters, bringing jobs and economic activity to regions at a time when it is needed most.”

The revisions are a result of the Fiscal Year 2013 National Defense Authorization Act and are expected to bolster participation by surety bond agents and brokers and their surety companies in SBA’s SBG Program.

The changes also allow SBA to guarantee bonds for government contracts valued at up to $10 million if a contracting officer of a federal agency certifies that the guarantee is necessary for the small business to obtain bonding, and it is in the best interests of the government.

SBA partners with the surety industry to help small businesses that would otherwise be unable to obtain bonding in the traditional commercial marketplace. Under the partnership, SBA provides a guarantee to the participating surety company of between 70 and 90 percent of the bond amount if a contractor defaults or fails to perform.

SBA assistance in locating a participating surety company or agent, and completing application forms, is available online. For more information on SBA’s Surety Bond Guarantee Program, including Surety Office contacts, go online to: http://www.sba.gov/category/navigation-structure/loans-grants/bonds/surety-bonds or call 1-800-U-ASK-SBA.

SBA introduces ‘Quick Bond’ application

By

SBA has developed a new streamlined application to help small business owners bid and compete for contracting opportunities.

The Quick Bond Guarantee Application Agreement is for contracts less than $250,000 and combines the contractor application and SBA’s agreement with the surety to guarantee the bond into one easy-to-use form. The new form, the Quick Bond Guarantee Application and Agreement (SBA Form 990A) is available here.

The streamlined application reduces paperwork for both contractors and surety companies participating in SBA’s Prior Approval Program. The Quick Bond Guarantee Application Agreement helps:

  • Reduce processing time,
  • Streamline application requirements,
  • Speed up the application approval process.

For more information on surety bonds and SBA’s Surety Bond Guarantee Programs, visit SBA.gov/Surety-Bonds.

Contracting News

Read More

Contracting Tips

Read More

GTPAC News

Read More

Georgia Tech News

Read More