The federal Miller Act was enacted by Congress to mandate, among other things, that payment bonds be furnished on federal construction projects so that persons supplying labor and materials would have an alternative remedy to assure payment, since such persons do not have mechanic’s lien rights against federal property. To that end, the Miller Act is considered a remedial statute and is liberally construed by courts to ensure that its purposes are given effect. Courts generally will override language intended to reduce or frustrate the statutory protections provided in the statute. A recent decision, Nagel Construction, Inc. v. Crest Construction & Excavating LLC, by the U.S. District Court for the Western District of Michigan provides an apt example.

The facts of the decision involved a sub-subcontractor, who was hired by an excavation subcontractor to provide certain services and materials for a construction project at an Air National Guard Base in Michigan. The general contractor for the project provided a performance and payment bond as required under the federal Miller Act. The sub-subcontractor completed its work on July 23, 2004 and submitted invoices of approximately $65,000.00 to the subcontractor, which were never paid. On October 20, 2004, the sub-subcontractor provided notice of claim on the payment bond to the general contractor, seeking payment for its unpaid invoices. The surety subsequently denied the bond claim on the grounds that notice was untimely, after which the sub-subcontractor initiated claims against the subcontractor, general contractor and the surety seeking damages. The sub-subcontractor then sought a motion for summary judgment on the bond claim.

As part of its defense to the motion, the surety argued that the sub-subcontractor failed to comply with an additional notice requirement made part of the payment bond through an amendment, which required compliance with the notice requirements of the Michigan public works bond statute. Michigan’s statute requires sub-subcontractor’s to provide notice within 30 days of starting work and 90 days of finishing work. The federal Miller Act, however, only requires one notice; the sub-subcontractor must provide notice to the general contractor within 90 days of its last work.

The Court granted the motion for summary judgment against the surety, ruling that the sub-subcontractor was not subject to the 30-day notice requirement as an additional condition on its Miller Act claim. The Court reasoned that “adding requirements to the Miller Act would be ‘particularly in appropriate,’ because it is remedial legislation ‘that should be read charitably to subcontractors.’” The Court also noted that sureties are free to assume greater liability than required by statute, but not less. “Here, a contract imposing additional burdens on sub-subcontractors, and affording more protection to the surety than the federal law contemplates would be a contract imposing less liability.”

The federal Miller Act and state little Miller Acts were intended by legislators to provide broad payment protections to subcontractors and suppliers working on public projects. As such, attempts to reduce those statutory protections for proper claimants will meet with disapproval from the courts.These materials are provided to NASBP members solely for educational and informational purposes. They are not to be considered the rendering of legal advice in specific cases or to create a lawyer-client relationship. Readers are responsible for obtaining legal advice from their own counsels, and should not act upon any information contained in these materials without such advice.

Commenting of the agreement, Foss noted its impact. “I am very pleased to sign this agreement on behalf of NASBP members, many of which serve ASA members as their insurance and surety brokers. NASBP has worked with ASA closely in the past on key construction and surety issues, but putting this agreement in place ensures that both organizations will pursue with the other a heightened level of cooperation, collaboration and information exchange in an effort to address current and future industry challenges and opportunities. This agreement is a proactive step benefiting our respective outreach, education and advocacy efforts.”

Nelson further added her thoughts on the new relationship. “Understanding the security provided by, and qualifications required for, surety bonding is critical for subcontractors, and this agreement will enhance education about these issues. Strengthening the flow of information between subcontractors and their contacts for surety bonding will benefit the whole construction industry. It will be exciting to see what ASA and NASBP can accomplish together through the collaborative efforts on education, communication and advocacy set forth in the partnering agreement.”

Already in the works between the organizations are plans for dissemination of articles, state legislative assistance efforts, and speaking opportunities. “These merely are first steps with much more that can be done between our organizations,” related Foss. “Our leaderships will meet in the near future which, I am confident, will set the path for a very productive and mutually rewarding relationship for NASBP and ASA.”

On September 30, 2005, the Federal Acquisition Regulation (FAR) Council announced the final rule addressing the acceptable forms of powers of attorneys (POAs) accompany bid bonds, which clarified that, not just ink (“wet”) signatures, but electronic, mechanically-applied and printed signatures were acceptable signatures on POAs accompanying bid bonds. This final rule was specific to bid bonds and did not address the form of the POAs for performance and payment bonds. At present, no regulation addresses the acceptable form of those POAs. Interestingly, printed POAs with printed or mechanically-applied signatures routinely were accepted until a series of confusing, somewhat contradictory, Comptroller General decisions were issued that cast doubt on those practices with respect to bid bonds. Those Comptroller General decisions did not address POAs accompanying performance and payment bonds.

While the form of acceptable signatures on POAs for bid bonds was made clear by the new FAR rule, in the absence of a similar rule for POAs accompanying performance and payment bonds, some federal contracting officers may feel that they should require “wet” signatures on POAs for final bonds. As reported by several NASBP members, such is the case for contracting officers in at least one regional office of the U.S. Army Corps of Engineers, where “wet” signatures were required on POAs accompanying performance and payment bonds on recent USACE construction projects in Alaska.

To assess the scope of “wet” signature requirements and to request consideration of the standards for POAs for bid bonds as the default standard for all POAs, representatives of NASBP, the Surety and Fidelity Association of America (SFAA), the American Insurance Association (AIA), and the Associated General Contractors of America (AGC), all members of the original coalition that worked to advocate for the FAR rule on POAs for bid bonds, met with headquarters officials of the USACE on Wednesday, July 12, 2006. At that meeting, USACE officials indicated that they had a strong interest in achieving consistency of treatment. USACE officials also stated that they would look into the matter and would survey all regional offices to ascertain current practices with respect to requirements for POAs accompanying performance and payment bonds. After conducting their review, USACE will provide a response to industry.

If you know of instances in which USACE contracting officers (or the contracting officers of other federal agencies) are requiring “wet” signatures on POAs accompanying final bonds, please forward that information, including the name of the federal agency, the contracting region, and a brief description of the project, to NASBP to the attention of Mark McCallum, General Counsel & Director of Government Relations, or e-mail at mmccallum@nasbp.org. Your information is this regard would be invaluable.

Florida passed a law in 2005 requiring all insurance agencies that conduct business in Florida (whether located in or out of the State of Florida) to apply to become licensed or registered by October 1, 2006. Further, every agency location must be licensed or registered with the Florida Department of Financial Services; a single license or registration is not sufficient under the new law to cover multiple agency locations. Failure to apply for licensure or registration before the deadline date may result in the imposition of a fine of up to $10,000.00. There is no fee for licensure or registration, and agencies may apply for licensure or registration online at https://aalf.fldfs.com. Additional information regarding the new insurance agency licensing law in Florida may be obtained online at http://www.fldfs.com/Agents/agencyRegLicInfo.htm.

REGIONS 10 & 11
September 7 – 9
The Westin Boston Waterfront
Boston, MA

Plan to join us in Boston for a spectacular New England Autumn weekend.  Historic tours, great sports, and world class shopping make Boston an ideal location for this year’s meeting.

Reserve hotel accommodations by contacting the brand new Westin Boston Waterfront directly at 617-532-4600 or 888-627-7115 before Monday, August 14 to receive the special NASBP room rate of $199 single/double (plus applicable taxes).  Even though the hotel cut-off date is August 14 to receive this rate the hotel room block may be filled before then so don’t wait to book your room.

Registration and program information for this meeting is now available on the NASBP website at Click here for more information.

REGIONS 1, 2 & 3
September 14 – 16
The Fairmont Waterfront Hotel
Vancouver, BC, CANADA

Where soaring mountains meet the sparkling ocean – Come to Vancouver for a unforgettable meeting location.

Hotel space is limited, so book your hotel reservation today by contacting the Fairmont Waterfront Hotel directly at 800-866-5577 or 604-691-1991.  The special NASBP rate of $239 CND/Standard room (approx. $191 USD) is only available until MONDAY, AUGUST 21.  Please remember that the NASBP room block could fill up prior to the August 21 cut-off date.  After August 21, reservations will be accepted on a space/rate available basis.

Traveling to Canada. Traveling to Canada requires more than a U.S. issued photo ID.

Please make sure you have either a passport or certified birth certificate to accompany your U.S. issued photo ID.  Visit this website for more information.

Registration and program information for this meeting is now available on the NASBP website at Click here for more information.

REGIONS 4, 5, 6 & 7
October 5 – 7
The Westin Riverwalk Hotel
San Antonio, TX

Texas charm and hospitality awaits you in San Antonio for this years Regions 4, 5, 6 & 7 Annual Meeting.  Great food, music, and strolling the famous Riverwalk are all on the agenda.

Reserve your hotel reservation today at the Westin Riverwalk Hotel by contacting the hotel directly at 210-224-6500 or 888-627-8396.  The special NASBP rate of $209 single/double is only available until MONDAY, SEPTEMBER 11.  Please remember that the NASBP room block could fill up prior to the September 11 cut-off date.  After September 11, reservations will be accepted on a space/rate available basis.

Registration and Program information – COMING SOON!

POSITIONS

     CNA SURETY CORPORATION, one of the largest U.S. surety companies, currently has Underwriting opportunities in the following locations:

·     Albany, NY – Underwriting Consultant

    RESPONSIBILITIES: Underwrites and services the most complex accounts in a branch office. Analyzes, evaluates and reviews new business with superiors as necessary. Responsible for producing new accounts from assigned group of agents/brokers or designated geographical area. Underwriting authority is determined by the Manager. May have responsibility for training and/or supervision of entry-level underwriters and/or support staff.

    REQUIREMENTS: College degree in Finance, Accounting, Business Administration or equivalent business experience required. Minimum of five years underwriting experience. Excellent verbal and written communication skills. Strong interpersonal skills with the ability to interact with both internal and external clients. Excellent planning and organization skills. Ability to use PC applications. 

·     Dallas, TX – Underwriting Specialist 

RESPONSIBILITIES: Responsible for producing new accounts and servicing existing bond accounts in a field office. Analyzes, evaluates and refers new and existing business to the Bond Manager or Territorial Underwriting Manager. Underwriting authority is determined by the Manager.

REQUIREMENTS: College degree in Finance, Accounting, Business Administration or equivalent business experience required. Minimum of two to four years underwriting experience. Excellent verbal and written communication skills. Strong interpersonal skills with the ability to interact with both internal and external clients. Excellent planning and organization skills. Ability to use PC applications.

·     Chicago, IL – Surety Claims Analyst 

Responsibilities:  Investigation, analysis, negotiation, and settlement of contract Surety bond claims.

Requirements:  Law degree, plus 3-5 years of Surety and/or a background in insurance, engineering or construction. Equivalent industry experience in lieu of JD will be considered.  Strong interpersonal and written/verbal communication skills are essential. Occasional overnight travel may be required.

Contact:  Lisa Young, Human Resources Coordinator, via e-mail lisa.young@cnasurety.com, or fax resume to 312-817-1759. Visit www.cnasurety.com for more company information. EOE

     NAS Surety Group is seeking Branch Managers in the following locations:

·    Manchester, NY and Itasca, IL

Exciting opportunities with a world-class company?

Position Description: Whether you enjoy the charm of New England or the excitement of the Chicagoland area, you’ll find the perfect opportunity with NAS Surety Group. We currently have two openings available, each for a Branch Manager to oversee the day-to-day operations of a regional office. While approving all contract surety bonds in excess of the underwriters and regional managers’ authority, you’ll be responsible for agency relationship management, underwriting, production, staff management, claim reviews and strategic planning for the region.

Qualifications: Your success in this challenging role demands:

·  Bachelor’s degree in a business-related field, with an emphasis on Finance or Accounting, or equivalent

·  At least 7 years of surety underwriting experience that includes 5 years of current contract surety underwriting

·  Strong competency in quantitative and financial analysis

·  Proficiency with MS Word and Excel

·  Proven ability to market for and obtain new business

·  Excellent interpersonal, verbal and written communication skills

·  Ability to travel 50% of the timeCompany Overview: 

NAS SURETY GROUP, a wholly-owned subsidiary of Swiss    Reinsurance, is the 12th largest writer of surety bonds in the United States and the largest writer of U.S. Custom Bonds with annual revenues exceeding $75 million. We offer a full complement of surety products, including bid bonds, performance and payment guarantees, supply bonds, and all types of commercial surety bonds, as well as exceptional career opportunities for driven professionals like you. 

Response Information:  For consideration, please contact Judith Gazaway, HR Consultant.  Fax: 630-227-4715. Email: .judith_gazaway@nassurety.com . Visit our Web site: www.nassurety.com

OLD REPUBLIC SURETY COMPANY has two opportunities for Surety Bond Field Underwriters:  One in its Indiana/Kentucky territory and another in the Northern California territory. 

Responsibilities:  Market both contract and non-contract surety and fidelity bonds, and underwrite renewals and submissions primarily in the assigned territory. Work from home, but travel the territory daily.

Requirements:  Several years of experience underwriting and marketing all types of surety bonds, strong analytical and communication skills, and knowledge of the business climate in the market area. Bachelor’s Degree or equivalent highly preferred. Includes company car and bonus programs.

Contact:  Janell Manson, Vice President Human Resources by e-mail at manson@orsurety.com or fax resume to 262/797-8874. Visit www.orsurety.com for more company information. EOE

     Selective Insurance Company of America is seeking a Bond Underwriter in Hunt Valley, MD. This position will report to the Senior Regional Bond Manager.

Purpose of Position:

To evaluate bond accounts submitted by producers, to market all three of our bond products to our producers, and to service/underwrite existing bond accounts.Description of Position:

A diverse and challenging bond underwriting position involving the development and use of skills necessary to underwrite surety bond accounts. The product lines include contract surety, commercial surety and fidelity. The review of financial statements and financial analysis of contractors and other business entities will be stressed through the use and interpretation of financial-based computer applications.

This position also entails outside marketing. Agency and account interaction is a critical aspect of this position.Qualifications (Skills) Required:

·    Experienced individual who has five plus years of bond writing experience; willing to consider lesser-experienced individual who has strong finance and accounting background

·    Exceptional time management skills

·    Excellent analytical, oral, and written communication skills

·    Exceptional marketing and customer-relation skills

·    Ability to work independently

Qualifications (Skills) Preferred:

·    Bachelors degree in accounting, finance, or economics or CPCU, AFSB, AAIF, or other designations

Previous experience working in a construction environment, accounting, auditing, or banking fieldContact:

Barbara Fragano via email at Barbara.fragano@selective.com. It is required that Selective employees express their interest in the position by contacting their supervisor/manager prior to responding to this job opportunity.

     United Fire Group is seeking a Senior Surety Underwriter – Bond Department in Cedar Rapids, IA.

DATE POSTED:  June 13, 2006

JOB SUMMARY:  Determine acceptability of surety submissions through analysis of financial statements, credit reports, bank letters and past history and to work toward a profitable and controlled level of growth by servicing the existing business and meeting or exceeding the Department annual goals and objectives.

ESSENTIAL JOB FUNCTIONS:

1.      Underwrite new surety submissions.  Gather information regarding financial status, credit standing, and organization profit to analyze and determine acceptability of risk.

2.      Update and keep files current. Request information regarding the risks from agents and principals.  Review and process information received.

3.      Interaction with professional NASBP member agents as well as other agents who do business with United Fire Group. Discuss new and renewal business and status of accounts.

4.      Travel is required. Must have valid drivers license.

5.      Review bond requests and new accounts that exceed the authority level of the bond underwriters in the team.

6.      Train newer underwriters and provide feedback on the performance of underwriters with less experience.

7.      Regular attendance.

8.      Perform other job duties as assigned.

SKILLS, KNOWLEDGE AND ABILITIES:
Must be able to make decisions, review financial statements, credit reports and maintain constant attention to detail. Must be able to analyze confidential financial information and follow guidelines in determining the renewal of contractor’s lines of credit. Documentation of files and the ability to obtain information is required in order to make proper decisions.

EDUCATION & EXPERIENCE:
Five-Ten year’s experience required. A four-year college degree required, with a major in Business Administration, Economics, Accounting or Finance preferred. Work toward an MBA program and a willingness to pursue AFSB and CPCU designations is a plus.

EQUIPMENT:
Personal computer, calculator, photocopy machine, fax machine and telephone. Also various reference materials, forms books, bond forms and contracts.

If you qualify and have interest in this position, please contact Sue Meeks in the Cedar Rapids office via FAX: 319/399-5463, OR E-MAIL: smeeks@unitedfiregroup.com.  

     CAPITOL INSURANCE COMPANIES is seeking a Commercial Surety & Fidelity Underwriter for its Madison (Middleton), WI office.

·     Responsibilities:  Under minimal supervision, this position accepts, rejects and reviews bond risks to achieve established underwriting profit and production goals. Also, this position suggests refinements in a risk in order to enable it to meet established underwriting standards.

·     Requirements:  Bachelor’s Degree, or equivalent, with minimum 3 to 5 years of experience working in the surety underwriting area. Candidates must have achieved or be working toward the AFSB or CPCU designations. Excellent communication, both written and oral, and analytical skills are required. This professional person must also possess the ability to work independently while functioning as part of the team. Must be able to travel and be comfortable working with Microsoft Windows, Word and Excel.

·     Contact:  Hayley Hellenbrand, Human Resources Specialist at 608/829-4282, e-mail jobs@capitolindemnity.com or fax resume to 608/829-7409. Visit www.capitolindemnity.com for more company information. EOE

NEW MEMBERS

InSource, Inc.
9500 S. Dadeland Boulevard, Ste. 200
Miami, FL 33156
Key Contact: Mr. William L. Parker
www.insource-inc.com

USI New England
12 Gill Street, Suite 5500
Woburn, MA 01801
Key Contact: Mr. Edward J. Mulcahy
www.usi.biz

Great leaders do more than achieve success. They share their knowledge with others, so that they, too, may succeed. The Surety Information Office (SIO) offers a popular resource called Why Do Contractors Fail? in several formats to help surety professionals share lessons learned with contractors and subcontractors, public and private owners, architects and engineers, and others to foster growth and success in construction:

Brochure
Order the brochure free via SIO’s online store.

HTML
Read the brochure online.

PDF
Download a PDF of the brochure.

PPT with Speaker Notes
Download the PowerPoint® presentation with speaker notes.