Phoenix Partner, David Kash and Bruce Kahn of Berkley Surety, Co-Author Article,
“The A312 Performance Bond in Not a Blank Check”.
Featured in the IADC Journal, October 2021.
The A312 Performance Bond is commonly used in private commercial construction and even on public jobs. It is considered a standard form as it was created with the cooperation of owners, contractors, architects and sureties. Many courts have held that the terms are unambiguous and that it contains conditions precedent that must be satisfied in order to trigger a surety’s performance options. If those conditions are not strictly complied with it can lead to the bond being held null and void or the surety being discharged by the court. An owner or obligee faces that risk if itself performs with its own replacement contractors and then merely sends the bill to the surety.