2026 Law and Ethics Update: Property and Casualty

ABC Contractors is bidding on a large infrastructure project to build a new highway. The project owner requires ABC Contractors to obtain a performance bond to ensure that the project will be completed according to the terms of the contract.

Character: The surety will assess the character of ABC Contractors by looking at their reputation, track record, and experience in completing similar projects. They may review past performance on projects, the company’s history of meeting deadlines, and any relevant certifications or industry awards. For example, if ABC Contractors has successfully completed several highway construction projects on time and within budget in the past, this demonstrates “good character”.

Capital: The surety will evaluate ABC Contractors’ financial strength and stability. This includes assessing the company’s liquidity, profitability, and overall financial health. The surety may review financial statements, cash flow projections, and other financial metrics to determine if ABC Contractors has the necessary financial resources to complete the project. For example, if ABC Contractors has a strong balance sheet, adequate cash reserves, and a history of profitability, this demonstrates sufficient capital.

Capacity: The surety will assess ABC Contractors’ ability to complete the project based on their resources, equipment, personnel, and expertise. This includes evaluating the company’s technical capabilities, project management skills, and workforce availability. The surety may review resumes of key personnel, equipment inventories, and project plans to ensure that ABC Contractors has the capacity to undertake the project. For example, if ABC Contractors has a skilled workforce, modern equipment, and a detailed construction plan in place, this demonstrates sufficient capacity.

Collateral: The surety may require collateral to mitigate the risk of issuing the performance bond to ABC Contractors. Collateral could include assets such as real estate, equipment, or cash that the company pledges as security for the bond. For example, if ABC Contractors owns valuable construction equipment or property, they may offer these assets as collateral to secure the bond.

XYZ Construction is a relatively new company that has won a bid to construct a large commercial building. However, due to its limited financial history and the size of the project, the project owner requires XYZ Construction to obtain a performance bond. The surety company conducting the underwriting process determines that XYZ Construction lacks sufficient capital and financial stability to secure the bond solely based on their financial standing. Therefore, the surety requires collateral as a form of security before issuing the bond.

Collateral Requirement: The surety company requests XYZ Construction to provide collateral to secure the performance bond. In this case, the collateral could be in the form of liquid assets, such as cash or marketable securities, or tangible assets, such as equipment or real estate. The purpose of collateral is to provide the surety with an additional source of funds in case XYZ Construction fails to fulfill its obligations under the contract.                           

Assessment of Collateral: XYZ Construction offers a piece of commercial real estate that it owns as collateral for the performance bond. The surety company conducts an assessment of the property to determine its value and suitability as collateral. This assessment may involve hiring a third-party appraiser to evaluate the property’s market value and conducting due diligence to ensure that the property is free from any encumbrances or legal issues.

Underwriting Process: The surety company also evaluates other aspects of XYZ Construction’s financial health, such as its cash flow, liquidity, and profitability, as part of the underwriting process. Additionally, the surety may require XYZ Construction to provide a personal indemnity agreement or obtain an indemnitor—a financially strong individual or entity who agrees to be responsible for fulfilling XYZ Construction’s obligations under the bond in case of default.

Joint Control Mechanism: In some cases, the surety may require the implementation of joint control mechanisms to mitigate risks associated with issuing the bond. For example, the surety may require that payments under the contract be made jointly to XYZ Construction and the project owner or that funds be deposited into a joint control account managed by both parties.