A bond is a written instrument executed for the benefit of the Postal Service
as security for the Supplier's obligations, and to assure payment of any
bonded loss. Bonds (other than bonds required for construction contracts)
and performance guarantees should only be obtained when needed to
protect the interest of the Postal Service. The purchase plan must describe
and explain any requirements for bonds and performance guarantees.
A bond is executed by an offeror or supplier identified in the instrument as the
principal, together with a second party identified as the surety. The surety is
an individual or corporation legally liable for another's debt, default, or failure
to satisfy a contractual obligation. Clause 7-2: Additional Bond Security must
be included in all contracts for which a bond is required.
There are several kinds of bonds used by the Postal Service:
• Annual bond
• Patent infringement bond
• Fidelity bond
• Contract Postal Unit bonds
• Performance bond
• Payment bond
Annual bonds are a single bond in place of separate bonds to secure all of a
Supplier's obligations under contracts entered into during a specific fiscal
Patent infringement bonds are given as security for a Supplier's obligations
under a patent clause. A patent infringement bond may be required under a
contract containing a patent indemnity clause if a performance bond is not
obtained. The penal amount must be the minimum necessary to protect the
Postal Service's interest. Clause 7-1: Patent Infringement Bond
Requirements must be included in the contract if the Supplier may be
required to submit a patent infringement bond.
A fidelity bond is used to assure the faithful performance of an employee's
duties to his or her employer and the employer's clients. The bond is used to
cover losses such as employee thefts or embezzlements. A fidelity bond in
an amount sufficient to protect the interest of the Postal Service may be
required for any contract that requires Supplier employees to handle Postal
Service funds. When a fidelity bond is required, Provision 7-3: Fidelity Bond
Requirements must be included in the request for proposals (RFP), and the
amount must be reviewed periodically to ensure that the Postal Service's
interest is adequately protected.
Contract Postal Unit Bonds impose obligations on a Supplier similar to those
required under performance, payment, and fidelity bonds.
A performance bond is a bond given as security for the Supplier's obligations
under a contract. Performance bonds may be required only if the Contracting
Officer determines that performance bonding is essential to the interest of the
Postal Service. Examples of situations that require performance bonds
• A contract provides for the use of Postal Service property or
funds in contract performance
• A Supplier has sold all its assets to, or merged with, another firm
and the Postal Service needs assurance of the new firm's
• The product or service is not scheduled for first delivery until at
least 12 months after contract award, and substantial progress
payments are contemplated
The penal amount of the performance bond must be the minimum needed to
protect the Postal Service's interest. A penal amount is the amount specified
in a bond (expressed in terms of dollars or a percentage of the contract price)
as the maximum payment for which the surety is obligated. If it is determined
that performance bonding is essential to the interest of the Postal Service,
Provision 7-1: Performance Bond Requirements should be included in the
RFPs for non-construction contracts. If the penal amount is less than 100% of
the contract price, the provision must be modified accordingly.
Annual performance bonds may be used only for contracts other than
construction contracts. The penal amount of such a bond may not be more
than the total amount of all contracts secured by the bond.
A payment bond assures payment of all persons supplying labor and material
under a contract. Payment bonds may be required only if the Contracting
Officer determines that payment bonding is essential to the interest of the
Postal Service. Examples of situations that require payment bonds include:
• A contract is for supplies or services unique to the Postal Service
that can be obtained only from a source that is not the producer
of the supplies or services;
• A Supplier has sold all its assets to, or merged with another firm
and the Postal Service needs assurance of the new firm's
• Supplies requiring substantial production costs are not scheduled
for first delivery until several months after contract award, and no
progress payments are contemplated; or
• Uninterrupted provision of the supplies or services is essential to
the continued operation of Postal Service functions.
The penal amount of the payment bond must be the minimum needed to
protect the Postal Service's interest. If it is determined that payment bonding
is essential to the interest of the Postal Service, Provision 7-2: Payment
Bond Requirements should be included in RFPs for non-construction
Annual payment bonds may be used only for contracts other than
construction contracts. The penal amount of such a bond must be sufficient
to cover the bonded portions of the contracts awarded.
The Miller Act (40 U.S.C. 2701-270f) requires performance and payment
bonds or alternate payment protection for any construction, alteration, or
repair of any public building or public work valued at over $25,000. For
construction contracts greater than $25,000 but less than $100,000, the
Contracting Officer must select a payment bond or one or more of the
following payment protections, giving consideration to inclusion of an
irrevocable letter of credit as one of the selected alternatives:
• An irrevocable letter of credit - a written commitment by a
federally insured financial institution to pay all or part of a stated
amount of money on demand by the Postal Service until the
expiration date of the letter. The letter of credit cannot be revoked
• Certificates of deposit - the Supplier deposits certificates of
deposit from a federally insured financial institution with the
Contracting Officer, in an expectable form, executable by the
• Tripartite escrow agreement - the prime Supplier establishes an
escrow account in a federally insured financial institution and
enters into a tripartite escrow agreement with the financial
institution, as escrow agent, and all of the suppliers of labor and
material. The escrow agreement must establish the terms of
payment under the contract and of resolution of disputes among
parties. The Postal Service makes payments to the Supplier's
escrow account, and the escrow agent distributes the agreement,
or triggers the disputes resolution procedures if required.
• Assets - United States bonds or notes with a maturity date less
than five (5) years from the date of the contract, together with an
agreement authorizing collection or sale in the event of default
(the par value of the bonds or notes must be at least equal to the
penal amount of the bond); or certified check, cashier's check,
bank draft, postal money order, or currency (deposit must be at
least equal to the penal amount of the surety bond, and payable
solely to the order of the Untied States Postal Service).
Additional information on construction contract bonds can be found in
Handbook P-2: Design and Construction Purchasing Practices.
In lieu of any bond (other than a payment bond for a construction contract),
the Supplier may deposit certain kinds of assets with the Postal Service
instead of furnishing a bond.
The only assets acceptable in place of a surety bond are:
• United States bonds or notes with a maturity date less than 5
years from the date of the contract, together with an agreement
authorizing collection or sale in the event of default (the par value
of the bonds or notes must be at least equal to the penal amount
of the bond)
• A certified check, cashier's check, bank draft, postal money order,
or currency (the deposit must be at least equal to the penal
amount of the surety bond, and payable solely to the order of the
Untied States Postal Service)
When the Supplier pledges assets instead of providing a surety bond, the
Supplier must complete the bond form as principal, and the bond form must
describe the assets pledged. The Contracting Officer must deposit currency,
checks, and drafts with the information service center, with instructions to
hold the funds for the benefit of the Supplier. A perpetual inventory of all
deposited items must be kept by the senior contracting official at the
For all purchases involving the furnishing of a bond (other than payment
bonds for construction contracts), include Provision 7-4: Deposit of Assets
Requirements in the RFP. Clause 7-3: Deposit of Assets Instead of Surety
Bonds must be included in every contract requiring a bond for which assets
may be deposited in lieu of bonds.
Prescribed formats for bonds, as well as guidance and procedures, can be
found in the relevant handbook. When there is no prescribed format for a
bond (as when a patent infringement or fidelity bond is required), a suitable
commercial bond form may be used, or an appropriate format may be
prepared with the assistance of Legal Counsel.
An original signed copy of any bond must be retained in the RFP and
contract file. Bonds signed by persons acting in a representative capacity
must be accompanied by proof that the agent is authorized to act in that
capacity. Proof may be a notarized power of attorney, or a properly executed
corporate certificate or resolution, attested to by the corporate secretary.
When a partnership is a principal, the names of all members of the firm must
be listed in the bond, following the trade name of the firm (if any) and the
phrase "a partnership composed of." When a corporation is a principal, the
state of incorporation must be listed.
Unless an annual bond is accepted, performance or payment bonds must be
dated after the date of the contract.
Consent of surety is an acknowledgment by a surety that its bond continues
to apply to the contract as modified. When a contract modification increases
the contract price, the Supplier and the surety must execute a consent of
surety to increase the penal amount, and submit it to the Contracting Officer.
When more than one surety's consent is required, each surety must execute
When an increased bond amount is obtained from a party other than the
original surety, the original surety must execute a consent of surety. Novation
agreements require the execution of a consent of surety.
The Postal Service does not accept individual sureties. Bonds must be
supported by acceptable corporate sureties, or by assets acceptable as
security for the Supplier's obligation. Any corporate surety offered for a bond
furnished the Postal Service must appear on the list contained in Treasury
Department Circular 570. The amount of the bond may not exceed the
underwriting limit stated for the surety in that list.
Irrevocable letter of credit (ILC) is a written commitment by a federally
insured financial institution to pay all or part of a stated amount of money on
demand by the Postal Service until the expiration date of the letter. The letter
of credit cannot be revoked or conditioned.
Any offeror or supplier required to furnish a bond has the option to furnish a
bond secured by an ILC in an amount equal to the penal sum required to be
secured. A separate ILC is required for each bond. The ILC must be
irrevocable, unconditional, expire only 90 days following final payment or until
completion of any warranty period for performance bonds only, and be issued
by an acceptable federally insured financial institution. ILCs over $5 million
must be confirmed by another acceptable financial institution that had letter of
credit business of at least $25 million in the past year.
To draw on the ILC, the Contracting Officer will use a sight draft and present it
with the ILC to the issuing financial institution or the confirming financial
institution (if any). If the supplier does not furnish an acceptable ILC, or other
acceptable substitute, at least 30 days before an ILC's scheduled expiration,
the Contracting Officer shall immediately draw on the ILC. If, after the period
of performance of a contract where ILCs are used to support payment bonds,
there are outstanding claims against the payment bond, the Contracting
Officer will draw on the ILC prior to the expiration date of the ILC to cover
The ILC must be issued or confirmed by a federally insured financial
institution rated investment grade or better. The supplier shall provide the
Contracting Officer a credit rating that indicates the financial institution has
the required rating(s) as of the date of issuance of the ILC. If the Contracting
Officer learns that a financial institution's ratings has dropped below the
required level, the Contracting Officer will give the supplier 30 days to
substitute an acceptable ILC or will draw on the ILC using a sight draft.
When the contract performance period is extended, the Contracting Officer
will require the Supplier to provide an ILC with an appropriately extended
maturity that meets the expiration requirements of 90 days following final
payment; or until completion of any warranty period for performance bonds
A copy of all correspondence relating to contract modification, termination,
renewal, or nonperformance must be provided to each surety, with proof of
delivery requested. Additional information on contract performance and
payment must be provided to sureties upon request.
When a payment bond has been provided, the Contracting Officer may
furnish the name and address of the surety or sureties to persons who have
furnished, or have been requested to furnish, labor or materials for use in
performing the contract. The Contracting Officer may furnish additional
general information on such matters as the progress of the work, the
payments made, and the estimated percentage of completion.
If there is a failure to perform, the Contracting Officer must send each surety
a copy of any notice of impending termination, demand for adequate
assurances, assessment of liquidated or other damages, or other formal
notice of failure to perform under the contract, with a notice that the surety
may be liable for damages suffered by the Postal Service.
If a Supplier's failure to perform necessitates a claim against a surety, the
Contracting Officer must give the surety written notice of the amount of and
reasons for the claim. If the surety refuses to pay or does not respond, the
Contracting Officer must obtain procedural assistance from assigned Legal
Counsel. The Contracting Officer will only authorize payment from an ILC (or
any other cash equivalent security) upon a judicial determination of the rights
of the parties, a signed notarized statement by the Supplier that the payment
is due and owed, or a signed agreement between parties as to the amount
due and owed.
Because of the surety's liability for damages resulting from a Supplier's
default, the surety has certain rights and interests in the completion of the
contract work and the application of any undisbursed funds. Before
terminating a contract for default, the Contracting Officer must consider any
proposal by the surety for completion of the work. The surety should be
permitted to complete the work unless the Contracting Officer has reason to
believe that the persons or firms proposed by the surety to complete the work
are not competent or qualified.
Because of the possibility of conflicting demands for the defaulting Supplier's
unpaid earnings (including retained percentages and unpaid progress
payments), the surety may condition its offer of completion upon the
execution of a takeover agreement establishing the surety's right to payment
from the unpaid earnings. If so, and with the concurrence of the Vice
President, Supply Management (VP, SM), the Contracting Officer may enter
into such an agreement with the surety in writing after the effective date of
contract termination. The Contracting Officer should consider including the
defaulting Supplier as a party to the agreement in order to preclude any
disagreement on the Supplier's residual rights.
The agreement must provide that the surety will complete the work according
to all contract terms and conditions, and that the Postal Service will pay the
surety the balance of the contract price unpaid at termination, but not more
than the surety's costs and expenses, subject to the following conditions:
• Any unpaid earnings of the defaulting Supplier, including retained
percentages and progress payments for work accomplished
before termination, are subject to debts owed the Postal Service
by the Supplier, except to the extent that the unpaid earnings are
required to pay the completing surety the actual costs and
expenses it incurs in completing the work, exclusive of the
surety's payments and obligations under the payment bond given
in connection with the contract.
• The agreement may not waive or release the Postal Service's
right to liquidated damages for any delay in completion of the
work that is not excusable under the contract.
• If the contract proceeds have been assigned to a financing
institution, the surety may not be paid from unpaid earnings
unless the assignee consents to the payment in writing.
• The surety may be reimbursed for discharging its liabilities under
the payment bond of the defaulting Supplier only when:
- There is mutual agreement among the Postal Service, the
defaulting Supplier, and the surety;
- The Postal Service Board of Contract Appeals makes a
final determination of the amount due; or
- A court of competent jurisdiction orders payment
Upon Supplier completion of all contract obligations, the Contracting Officer
must issue a Certificate of Completion to any surety. The certificate's terms
may not release the surety from any obligation under a payment bond. When
the Supplier has deposited assets instead of providing a surety on a payment
bond, the Contracting Officer must refund the assets, with accrued interest,
within 90 days after final completion of contract performance, unless notice of
a claim is received during the 90-day period. If a claim is received, the assets
may be released only with the agreement of the claimant or by order of a
court of competent jurisdiction.
Assets deposited to secure any other bond may be refunded, with accrued
interest, upon final completion and receipt of the Supplier's release. Upon
request, the Contracting Officer will furnish a Certificate of Substantial
Completion to sureties of a construction Supplier if the project is substantially
complete (usable for the purpose intended). If the Contracting Officer is
uncertain whether the project is substantially complete, the advice of
assigned Legal Counsel must be obtained.
Suppliers may be required to carry insurance only when necessary to protect
the interest of the Postal Service. Examples of situations appropriate for
• It is desirable to use the facilities and service of the insurance
industry (for example, safety protection and claim services);
• Insurance is necessary or desirable in connection with contract
performance (for example, in transportation of valuable Postal
Service property); or
• Commingling of property or other contract conditions makes
insurance reasonably necessary for protection of the parties'
The Postal Service is not usually concerned with the insurance carried by
fixed-price Suppliers, except in special circumstances such as the following:
• The Supplier, or a segregated operation of the Supplier, is
engaged primarily in work for the Postal Service
• Postal Service property of substantial value is involved
• The contract work required is performed within a Postal Service
• The Postal Service agrees to assume risks for which the Supplier
ordinarily obtains commercial insurance
In circumstances such as those described above, these types and amounts
of liability insurance may be required:
• Workers' compensation and employers' liability insurance
• General liability insurance
• Automobile Liability Insurance
• Self Insurance
Compliance with applicable workers' compensation and occupational disease
statutes is required, and employers' liability coverage must be obtained when
available. In jurisdictions where occupational disease is not compensable by
law, the supplier must carry insurance for occupational disease under the
employers' liability section of the insurance policy.
The Supplier must carry bodily injury liability insurance, with minimum limits
of $100,000 per person and $500,000 per accident, on a comprehensive form
of policy. The Contracting Officer, at his or her discretion, may require higher
limits of insurance coverage. Clause 7-4: Insurance should be amended to
reflect the higher levels of insurance coverage. The Supplier must carry
property damage liability insurance in an amount determined by the
Contracting Officer when the nature of the contract operations warrants it, or
when those operations are not separable from the Supplier's commercial
The Supplier must carry automobile liability insurance on a comprehensive
form of policy that provides for bodily injury and property damage liability
covering the operation of all automobiles used in contract performance.
Minimum limits of $100,000 per person and $500,000 per accident for bodily
injury and $100,000 per accident for property damage must be carried. The
Contracting Officer, at his or her discretion, may require higher limits of
insurance coverage. Clause 7-4: Insurance should be amended to reflect the
higher levels of insurance coverage.
A qualified program of self-insurance covering any kind of liability may be
approved in place of any type of insurance when found to be in the interest of
the Postal Service. However, in a jurisdiction where workers' compensation
does not completely cover employers' liability to employees, a program of
self-insurance for workers' compensation may be approved only if:
• The Supplier also maintains an approved program of
self-insurance for any employer's liability that is not covered; or
• The supplier has shown that the combined cost to the Postal
Service of self-insurance for workers' compensation and
commercial insurance for employers' liability will not exceed the
cost of covering both kinds of risks by commercial insurance.
Suppliers providing the following categories of professional services must
carry errors and omissions (malpractice) insurance:
• Fiscal agents.
• Medical doctors and dentists.
Insurance coverage for these practitioners should be at least $200,000,
unless the Contracting Officer determines that a different limit is needed to
protect the interests of the Postal Service. The Contracting Officer may waive
the requirement for errors and omissions insurance in whole or in part, with
the concurrence of Legal Counsel.
The Contracting Officer may require other professional services Suppliers to
carry errors and omissions insurance when in the interest of the Postal
When insurance is required, it may be provided either by specific insurance
policies or by the Supplier's existing insurance policies. When existing
policies are used, they must be amended to make the Postal Service a loss
payee. Clause 7-4: Insurance must be included when a Supplier is required
to carry insurance. Clause 7-5: Errors and Omissions must be included when
errors and omissions insurance is required.
When insurance (other than errors and omissions insurance issued on an
occurrence basis) is required by the contract, the insurance policy must
contain an endorsement to the effect that a cancellation of or material change
in the policy that adversely affects the interest of the Postal Service will not
be effective until at least 30 days after written notice of the cancellation or
change is given to the Contracting Officer.
Contract tax problems are essentially legal in nature and vary widely. Specific
tax questions must be resolved by reference to the applicable contract terms
and pertinent tax laws and regulations. Therefore, when tax questions arise,
Contracting Officers must request assistance from assigned Legal Counsel.
To ensure consistent treatment within the Postal Service, the Senior Legal
Counsel, Contract Protests and Policies, must be consulted before
negotiating with any taxing authority for the purpose of:
• Determining whether a tax is valid or applicable; or
• Obtaining exemption from, or refund of, a tax.
Usually, suppliers are responsible for settling tax applicability questions in
consultation with authorities, independent of Postal Service involvement.
When the constitutional immunity of the Postal Service from state or local
taxation is at issue, however, suppliers should be discouraged from
negotiating independently with taxing authorities, and assigned Legal
Counsel should be consulted, if the contract is either:
• A cost-reimbursement contract; or
• A fixed-price contract containing a tax escalation clause.
Federal excise taxes are levied on the sale or use of particular supplies and
services. Subtitle D of the Internal Revenue Code of 1954, Miscellaneous
Excise Taxes, 26 U.S.C. 4041 et seq., and its implementing regulations, Title
26 Code of Federal Regulations (CFR) 40-299, cover miscellaneous federal
excise tax requirements. Questions on federal excise taxes should be
directed to Legal Counsel. The most common excise taxes are:
• Manufacturers' excise taxes imposed on certain motor vehicle
articles, tires and inner tubes, gasoline, lubricating oils, coal,
firearms, shells, and cartridges sold by manufacturers, producers,
or importers; and
• Special fuels excise taxes imposed at the retail level on diesel
fuel and special motor fuels.
No federal manufacturers' or special fuels excise taxes are imposed when
the supplies are for any of the following:
• Shipment to a U.S. possession or Puerto Rico, or for export.
Shipment or export must occur within 6 months of the time when
title passes to the Postal Service. When the exemption is
claimed, the words "for export or shipment to a possession" must
appear on the contract or purchase document, and the
Contracting Officer must furnish the seller proof of export or
shipment to a possession (see 26 CFR 48.4041-12).
• Further manufacture, or resale for further manufacture (this
exemption does not include tires and inner tubes, however) (see
• Emergency vehicles (see 26 U.S.C. 4064(a) and 4064(b)(1)(c)).
Contracting Officers must solicit price proposals on a tax-exclusive basis
when it is known that the Postal Service is exempt from federal excise taxes
and the exemption is at least $100. Proposals must be solicited on a
tax-inclusive basis when no exemption exists or the exemption is less
State and local taxes means taxes levied by the states, the District of
Columbia, Puerto Rico, possessions of the United States, or their political
Although the Postal Service, as an establishment of the federal government,
is constitutionally immune from state and local taxes imposed directly on it,
the applicability of particular taxes is a legal question often requiring the
advice and assistance of Legal Counsel. The applicability of a tax in a postal
transaction may depend on the nature of the tax and whether its legal
incidence, as opposed to its economic burden, is on the Postal Service as
purchaser. In many instances in which the Postal Service is not
constitutionally exempt, it may take advantage of statutory exemptions
provided by state or local law.
Prime Suppliers and subcontractors may not normally be designated as
agents of the Postal Service for the purpose of claiming exemption from state
and local taxes. Such designation, when appropriate, must be accomplished
in the RFP, and only after coordination with assigned Legal Counsel.
Whenever a state or locality asserts its right to tax Postal Service property
directly or to tax a Supplier's possession or use of, or interest in, Postal
Service property, the Contracting Officer must obtain advice from assigned
Legal Counsel concerning the appropriate course of action.
Under paragraph k of Clause 4-1: General Terms and Conditions or if the
contract includes Clause 7-6: Federal, State and Local Taxes, Clause 7-7:
Federal, State, and Local Taxes (Short Form), or Clause 7-8: Federal, State,
and Local Taxes (Noncompetitive Contract), it is the Supplier's responsibility
to determine to what extent state and local taxes are applicable to its
proposal. The Contracting Officer should make no representations
concerning the applicability of any state or local tax, and the Postal Service
should have no involvement in resolving any dispute between the Supplier
and a taxing authority concerning tax applicability.
As an exception, regarding fixed-price contracts, the Postal Service must,
upon the Supplier's request, furnish the Supplier evidence to establish
exemption from any specified tax if a reasonable basis for the exemption
exists. When requested, the Contracting Officer may furnish such evidence
under cost-reimbursement contracts. Evidence may also be furnished upon
request under other contracts that contain no tax provision if the Supplier (a)
certifies that the contract price does not include the tax or, if the transaction
or property is granted an exemption, (b) consents to a reduction in the
Evidence of exemption may include:
• A copy of the contract.
• Copies of other documents (such as purchase orders, shipping
documents, or invoices) identifying the Postal Service as the
• A U.S. Tax Exemption Certificate (Standard Form 1094).
• A state or local form indicating that the supplies or services are
for the exclusive use of the Postal Service or the federal
• Any other state or locally required document for establishing
• Shipping documents indicating that shipments are in interstate or
The resolution of tax issues requiring special consideration must be
coordinated with Legal Counsel in the course of RFP preparation. The
following are examples of state and local tax issues that may require special
• When there is a reasonable question of the applicability or
allocability of a tax, or when the applicability of a tax is in
litigation, the contract may:
- State that the contract price includes or excludes the
particular tax and is subject to adjustment upon resolution
of the tax question; or
- Require the Supplier to take specific actions regarding
payment, non-payment, refund, protest, or other treatment
of the tax.
• When the applicability of state and local taxes depends on the
place and terms of delivery, and the effect of tax on the contract
price will be substantial, alternative places of delivery and
contract terms should be considered in light of tax consequences.
• When leased equipment is to be obtained under an
indefinite-delivery contract, the Supplier's property may be
subject to a wide variety of state and local property, use, or other
taxes. Because these taxes can vary considerably from
jurisdiction to jurisdiction, use Clause 7-9, State and Local Taxes
(Indefinite Delivery Equipment Rental), to relieve the Supplier of
uncertainty about tax consequences in this situation.
Provision 7-1: Performance Bond Requirements
Provision 7-2: Payment Bond Requirements
Provision 7-3: Fidelity Bond Requirements
Provision 7-4: Deposit of Asset Requirements
Provision 7-5: Alternative Payment Protections
Clause 4-1: General Terms and Conditions
Clause 7-1: Patent Infringement Bond Requirements
Clause 7-2: Additional Bond Security
Clause 7-3: Deposit of Assets Instead of Surety Bonds
Clause 7-4: Insurance
Clause 7-5: Errors and Omissions
Clause 7-6: Federal, State, and Local Taxes
Clause 7-7: Federal, State, and Local Taxes (Short Form)
Clause 7-8: Federal, State, and Local Taxes (Noncompetitive Contract
Clause 7-9: State and Local Taxes (Indefinite Delivery Equipment Rental)