FAR 52.228-16 - 52.228-16 Performance and Payment Bonds—Other Than Construction.
Current Status
DEVIATION ACTIVE
WARNING: This clause is affected by 1 active class deviation. Use the deviation text, NOT the standard clause text from the eCFR.
| Last Checked | 2026-03-11 19:40 UTC |
| Authoritative Source | https://www.ecfr.gov/current/title-48/section-52.228-16 |
Active Class Deviations
2020-O0016 - Class Deviation 2020-O0016 â Original Documents, Signatures, Seals, and Notarization
Effective: None
Effect: SUBSTITUTE
Substitute clause 52.228-16
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Standard Clause Text (eCFR)
As prescribed in 28.103-4, insert a clause substantially as follows: Performance and Payment BondsâOther Than Construction (NOV 2006) (a) Definitions. As used in this clauseâ
Original contract price means the award price of the contract or, for requirements contracts, the price payable for the estimated quantity; or, for indefinite-quantity contracts, the price payable for the specified minimum quantity. Original contract price does not include the price of any options, except those options exercised at the time of contract award. (b) The Contractor shall furnish a performance bond (Standard Form 1418) for the protection of the Government in an amount equal to ___ percent of the original contract price and a payment bond (Standard Form 1416) in an amount equal to ___ percent of the original contract price. (c) The Contractor shall furnish all executed bonds, including any necessary reinsurance agreements, to the Contracting Officer, within __ days, but in any event, before starting work. (d) The Government may require additional performance and payment bond protection if the contract price is increased. The Government may secure the additional protection by directing the Contractor to increase the penal amount of the existing bonds or to obtain additional bonds. (e) The bonds shall be in the form of firm commitment, supported by corporate sureties whose names appear on the list contained in Treasury Department Circular 570, individual sureties, or by other acceptable security such as postal money order, certified check, cashier's check, irrevocable letter of credit, or, in accordance with Treasury Department regulations, certain bonds or notes of the United States. Treasury Circular 570 is published in the Federal Register, or may be obtained from the U.S. Department of the Treasury, Financial Management Service, Surety Bond Branch, 3700 East West Highway, Room 6F01, Hyattsville, MD 20782. Or via the internet at http://www.fms.treas.gov/c570/. (End of clause) Alternate I (JUL 2000). As prescribed in 28.103-4, substitute the following paragraphs (b) and (d) for paragraphs (b) and (d) of the basic clause: (b) The Contractor shall furnish a performance bond (Standard Form 1418) for the protection to the Government in an amount equal to ___ percent of the original contract price. (d) The Government may require additional performance bond protection if the contract price is increased. The Government may secure the additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond. [61 FR 39214, July 26, 1996, as amended at 65 FR 46071, July 26, 2000; 71 FR 67780, Nov. 22, 2006]
As Modified by Deviation
52.228-16, Performance and Payment Bonds—Other than Construction (DEVIATION 2020-O0016), which removes requirements for seals on Standard Forms. When processing assignment of claims per FAR subpart 32.8— A copy of the assignment instrument is acceptable, in lieu of a true copy of the assignment instrument as required by FAR 32.802(e); and Electronic signatures by responsible parties and electronic filing of assignment instruments and notices of assignments as outlined in attachments 1 and 2 are acceptable, in lieu of the requirements at FAR 32.805 and DFARS 232.805. When executing novation agreements and change-of-name agreements per FAR part 42— Copies of the documents listed at FAR 42.1204(f) are acceptable in lieu of authenticated or certified copies; and Novation Agreements as described at FAR 42.1204(i) and Change-of-Name Agreements as described at FAR 42.1205(b) do not require corporate seals. This class deviation remains in effect until rescinded. My point of contact is Larry McLaury, who is available by telephone at 703-697-6710 or by email at Larry.j.mclaury2.civ@mail.mil. Kim Herrington Acting Principal Director, Defense Pricing and Contracting Attachments:
As stated 2 Attachment 1 Class Deviation 2020-O0016 Original Documents, Signatures, Seals, and Notarization Changes to the text are indicated by a change bar in the right-hand margin. FEDERAL ACQUISITION REGULATION PART 28—BONDS AND INSURANCE * * * * * 28.002 Policy. (DEVIATION 2020-O0016) For purposes of this part, electronic signatures and electronic, mechanically-applied, or printed dates may be used and shall be considered original signatures and dates, without regard to the order in which they were affixed. SUBPART 28.1—BONDS AND OTHER FINANCIAL PROTECTIONS * * * * * 28.106 Administration. 28.106-1 Bonds and bond-related forms. (DEVIATION 2020-O0016) The following Standard Forms (SF’s) and Optional Forms (OF’s), shall be used, except in foreign countries, when a bid bond, performance or payment bond, or an individual surety is required. The bond forms shall be used as indicated in the instruction portion of each form, except that a seal is not required. For SF 28 also see 28.203(b). * * * * * 28.106-8 Payment to subcontractors or suppliers. (DEVIATION 2020-O0016) The contracting officer will only authorize payment to subcontractors or suppliers from an ILC (or any other cash equivalent security) upon a judicial determination of the rights of the parties, a signed statement by the contractor that the payment is due and owed, or a signed agreement between the parties as to amount due and owed. * * * * * SUBPART 28.2 – SURETIES AND OTHER SECURITY FOR BONDS * * * * * Page 1 of 13 Attachment 1 Class Deviation 2020-O0016
Original Documents, Signatures, Seals, and Notarization Changes to the text are indicated by a change bar in the right-hand margin. 28.203 Acceptability of individual sureties. (DEVIATION 2020- O0016) * * * * * (b) An individual surety must execute the bond, and the unencumbered value of the assets (exclusive of all outstanding pledges for other bond obligations) pledged by the individual surety, must equal or exceed the penal amount of each bond. The individual surety shall provide a security interest in accordance with 28.203-1 and execute the Standard Form 28, except that the words “being duly sworn, depose and say” on the Standard Form 28 are replaced with the word “affirm” and such Standard Form 28 is not required to be sworn and notarized. One individual surety is adequate support for a bond, provided the unencumbered value of the assets pledged by that individual surety equal or exceed the amount of the bond. An offeror may submit up to three individual sureties for each bond, in which case the pledged assets, when combined, must equal or exceed the penal amount of the bond. Each individual must accept both joint and several liability to the extent of the penal amount of the bond. * * * * * 28.203-5 Release of lien. (DEVIATION 2020-O0016) (a) After consultation with legal counsel, the contracting officer shall release the security interest on the individual surety’s assets using the Optional Form 90, Release of Lien on Real Property, or Optional Form 91, Release of Personal Property from Escrow, or a similar release as soon as possible consistent with the conditions in subparagraphs (a)(1) and (2) of this subsection. A surety’s assets pledged in support of a payment bond may be released to a subcontractor or supplier upon Government receipt of a Federal district court judgment, or a sworn statement by the subcontractor or supplier that the claim is correct along with a written authorization of the release signed by the surety saying that it approves of such release. * * * * * PART 32 – CONTRACT FINANCING Page 2 of 13 Attachment 1 Class Deviation 2020-O0016 Original Documents, Signatures, Seals, and Notarization Changes to the text are indicated by a change bar in the right-hand margin. * * * * * SUBPART 32.8 – ASS...
Full Current Text
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52.228-16 Performance and Payment BondsâOther Than Construction. As prescribed in 28.103-4, insert a clause substantially as follows: Performance and Payment BondsâOther Than Construction (NOV 2006) (a) Definitions. As used in this clauseâ Original contract price means the award price of the contract or, for requirements contracts, the price payable for the estimated quantity; or, for indefinite-quantity contracts, the price payable for the specified minimum quantity. Original contract price does not include the price of any options, except those options exercised at the time of contract award. (b) The Contractor shall furnish a performance bond (Standard Form 1418) for the protection of the Government in an amount equal to ___ percent of the original contract price and a payment bond (Standard Form 1416) in an amount equal to ___ percent of the original contract price. (c) The Contractor shall furnish all executed bonds, including any necessary reinsurance agreements, to the Contracting Officer, within __ days, but in any event, before starting work. (d) The Government may require additional performance and payment bond protection if the contract price is increased. The Government may secure the additional protection by directing the Contractor to increase the penal amount of the existing bonds or to obtain additional bonds. (e) The bonds shall be in the form of firm commitment, supported by corporate sureties whose names appear on the list contained in Treasury Department Circular 570, individual sureties, or by other acceptable security such as postal money order, certified check, cashier's check, irrevocable letter of credit, or, in accordance with Treasury Department regulations, certain bonds or notes of the United States. Treasury Circular 570 is published in the Federal Register, or may be obtained from the U.S. Department of the Treasury, Financial Management Service, Surety Bond Branch, 3700 East West Highway, Room 6F01, Hyattsville, MD 20782. Or via the internet at http://www.fms.treas.gov/c570/. (End of clause) Alternate I (JUL 2000). As prescribed in 28.103-4, substitute the following paragraphs (b) and (d) for paragraphs (b) and (d) of the basic clause: (b) The Contractor shall furnish a performance bond (Standard Form 1418) for the protection to the Government in an amount equal to ___ percent of the original contract price. (d) The Government may require additional performance bond protection if the contract price is increased. The Government may secure the additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond. [61 FR 39214, July 26, 1996, as amended at 65 FR 46071, July 26, 2000; 71 FR 67780, Nov. 22, 2006]