§ 694b. Surety bond guarantees
(a)
Authority of Administration to guarantee surety against loss from principal’s breach of bond
(1)
(A)
The Administration may, upon such terms and conditions as it may prescribe, guarantee and enter into commitments to guarantee any surety against loss resulting from a breach of the terms of a bid bond, payment bond, performance bond, or bonds ancillary thereto, by a principal on any total work order or contract amount at the time of bond execution that does not exceed $5,000,000.
(2)
The terms and conditions of said guarantees and commitments may vary from surety to surety on the basis of the Administration’s experience with the particular surety.
(3)
The Administration may authorize any surety, without further administration approval, to issue, monitor, and service such bonds subject to the Administration’s guarantee.
(4)
No such guarantee may be issued, unless—
(B)
the bond is required in order for such person to bid on a contract, or to serve as a prime contractor or subcontractor thereon;
(5)
(A)
The Administration shall promptly act upon an application from a surety to participate in the Preferred Surety Bond Guarantee Program, authorized by paragraph (3), in accordance with criteria and procedures established in regulations pursuant to subsection (d) of this section.
(B)
The Administration is authorized to reduce the allotment of bond guarantee authority or terminate the participation of a surety in the Preferred Surety Bond Guarantee Program based on the rate of participation of such surety during the 4 most recent fiscal year quarters compared to the median rate of participation by the other sureties in the program.
(b)
Indemnification of surety against loss from avoiding breach
Subject to the provisions of this section, in connection with the issuance by the Administration of a guarantee to a surety as provided by subsection (a) of this section, the Administration may agree to indemnify such surety against a loss sustained by such surety in avoiding or attempting to avoid a breach of the terms of a bond guaranteed by the Administration pursuant to subsection (a) of this section: Provided, however—
(1)
prior to making any payment under this subsection, the Administration shall first determine that a breach of the terms of such bond was imminent;
(2)
a surety must obtain approval from the Administration prior to making any payments pursuant to this subsection unless the surety is participating under the authority of subsection (a)(3) of this section; and
(3)
no payment by the Administration pursuant to this subsection shall exceed 10 per centum of the contract price unless the Administrator determines that a greater payment should be made as a result of a finding by the Administrator that the surety’s loss sustained in avoiding or attempting to avoid such breach was necessary and reasonable.
In no event shall the Administration pay a surety pursuant to this subsection an amount exceeding the guaranteed share of the bond available to such surety pursuant to subsection (a) of this section.
(c)
Limitation of liability
Any guarantee or agreement to indemnify under this section shall obligate the Administration to pay to the surety a sum—
(1)
not to exceed 70 per centum of the loss incurred and paid by a surety authorized to issue bonds subject to the Administration’s guarantee under subsection (a)(3) of this section;
(2)
not to exceed 90 per centum of the loss incurred and paid in the case of a surety requiring the Administration’s specific approval for the issuance of such bond, but in no event may the Administration make any duplicate payment pursuant to subsection (b) of this section or any other subsection;
(3)
equal to 90 per centum of the loss incurred and paid in the case of a surety requiring the administration’s [1] specific approval for the issuance of a bond, if—
(d)
Regulations
The Administration may establish and periodically review regulations for participating sureties which shall require such sureties to meet Administration standards for underwriting, claim practices, and loss ratios.
(e)
Reimbursement of surety; conditions
Pursuant to any such guarantee or agreement, the Administration shall reimburse the surety, as provided in subsection (c) of this section, except that the Administration shall be relieved of liability (in whole or in part within the discretion of the Administration) if—
(1)
the surety obtained such guarantee or agreement, or applied for such reinbursement,[2] by fraud or material misrepresentation,
(f)
Procedure for reimbursement
The Administration may, upon such terms and conditions as it may prescribe, adopt a procedure for reimbursing a surety for its paid losses billed each month, based upon prior monthly payments to such surety, with subsequent adjustments after such disbursement.
(g)
Audit
(1)
Each participating surety shall make reports to the Administration at such times and in such form as the Administration may require.
(h)
Administrative provisions
The Administration shall administer this part on a prudent and economically justifiable basis and establish such fee or fees for small business concerns and premium or premiums for sureties as it deems reasonable and necessary, to be payable at such time and under such conditions as may be determined by the Administration.
(i)
Powers of Administration respecting loans
The provisions of section
693 of this title shall apply in the administration of this section.
(k)
4 Bonds with prior approval
For bonds made or executed with the prior approval of the Administration, the Administration shall not deny liability to a surety based upon material information that was provided as part of the guaranty application.
[1] So in original. Probably should be capitalized.
[2] So in original. Probably should be “reimbursement,”.
[3] So in original. Probably should be followed by “or”.
[4] So in original. No subsec. (j) has been enacted.