In Part 2 of our series regarding the changes to the A312 Bond forms we examine the new A312-2010 Performance Bond.* 

The most significant change in the Performance Bond form involves the process for an Owner to declare a Contractor in default and to make a claim under the Performance Bond.  Under the old Bond form a Surety was not obligated to perform until the Owner notified the Contractor and its Surety of its intention to declare the Contractor in default and attempted to arrange a meeting with both parties.  This meeting had to be held within 15 days after receipt of the claim notice.  The Owner could not then declare a contractor in default or terminate the contractor until 20 days after the Contractor and Surety received notice of the default as described above. 

Section 3 of the 2010 Performance Bond form no longer requires the Owner to jump through these hoops in order to declare the Contractor in default and assert a claim under the Bond. 

Instead, under revised Paragraph 3.1, the Owner may request a meeting in its notice to the Surety, but isn’t required to do so.  If the Owner does not make this request, the Surety may within 5 business days after receipt of the notice request the conference.  If the Surety requests the conference, then the Owner must attend within 10 business days of the Surety’s receipt of the notice.  

Additionally, the A312-2010 Performance Bond no longer requires a waiting period before the Owner can declare the Contractor in default or terminate the Contractor. 

The most important aspect to the new claims process under the A312-2010 Performance Bond is new Section 4.  This section states:

Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure to comply with a condition precedent to the Surety’s obligations, or release the Surety from its obligations, except to the extent the Surety demonstrates actual prejudice. 

Failure by an Owner to comply with the notice requirement is not a free pass, even under the new Bond form.  Most jurisdictions already have case law protecting a Surety where an Owner fails to give proper notice.  For example, in Dragon Construction Company v. Parkway Bank & Trust, 678 N.E.2d 55 (Ill. App. 3d 1997), where an Owner terminated a contractor and replaced the contractor without giving notice the Surety the Illinois Appeals Court held:

since the (owner) replaced (contractor) with (replacement contractor) before informing (surety) that (contractor) was to be terminated and without consulting (surety) as to the successor, (surety) was stripped of its contractual right to minimize its liability under the performance bond by ensuring that the lowest responsible bidder was selected to complete the job. (surety) would be entitled to select, or at the very least participate in selecting, the lowest bidding contractor to complete the project in order to mitigate its damages under the performance bond.  Surely, (surety) would not have issued the surety bonds if it did not have the authority to protect itself through the selection of the successor contractor.

Generally under this line of cases, a Surety does not have to show prejudice before being discharged under the Bond. Performance Bond A312-2010, however, requires a Surety to show that it has been prejudiced by the Owner’s actions if proper notice was not given to the Surety under Paragraph 3.1.  What constitutes actual prejudice is unclear.  A Surety may be prejudiced if it was not given an opportunity to participate and mitigate its damages.  This standard could then be read in conjunction with current case law.  As the Dragon court states a Surety is entitled to mitigate its damages and it would not have issued the surety bonds if it did not have the authority to protect itself.  Or it may be that a Surety must show quantifiable damages in order to demonstrate prejudice.  Overall, it remains to be seen how the Courts will interpret this section, given existing case law, if the Bond, like its counterpart, is widely adopted. 

* Because I can’t end our flashback to 1984 without a bit of reminiscing, the #1 movie was Beverly Hills Cop, the most popular fiction was The Talisman, the most popular non-fiction was Iacocca: An Autobiography,  and the most popular television show…..Dynasty (should have been the Cosby Show!).