§103D-324  Contract performance and payment
bonds.  (a)  Unless the policy board determines otherwise by rules, the
following bonds or security shall be delivered to the purchasing agency and
shall become binding on the parties upon the execution of the contract if the
contract which is awarded exceeds $25,000 and is for construction, or the
purchasing agency secures the approval of the chief procurement officer:



(1)  A performance bond in a form prescribed by the
rules of the policy board, executed by a surety company authorized to do
business in this State or otherwise secured in a manner satisfactory to the
purchasing agency, in an amount equal to one hundred per cent of the price
specified in the contract;



(2)  A payment bond in a form prescribed by the rules
of the policy board, executed by a surety company authorized to do business in
this State or otherwise secured in a manner satisfactory to the purchasing
agency, for the protection of all persons supplying labor and material to the
contractor for the performance of the work provided for in the contract.  The
bond shall be in an amount equal to one hundred per cent of the price specified
in the contract; or



(3)  A performance and payment bond which satisfies
all of the requirements of paragraphs (1) and (2).



(b)  The policy board may adopt rules that
authorize the head of a purchasing agency to reduce the amount of performance
and payment bonds.



(c)  Nothing in this section shall be construed
to limit the authority of the chief procurement officer to require a
performance bond or other security in addition to those bonds, or in
circumstances other than specified in subsection (a).



(d)  Every person who has furnished labor or
material to the contractor for the work provided in the contract, in respect of
which a payment bond or a performance and payment bond is furnished under this
section, and who has not been paid amounts due therefor before the expiration
of a period of ninety days after the day on which the last of the labor was
done or performed or material was furnished or supplied, for which such a claim
is made, may institute an action for the amount, or balance thereof, unpaid at
the time of the institution of the action against the contractor and its
sureties, on the payment bond or the performance and payment bond, and have
their rights and claims adjudicated in the action, and judgment rendered
thereon; subject to the State's priority on the bonds.  If the full amount of
the liability of the sureties on the payment bond is insufficient to pay the
full amount of the claims, then, after paying the full amount due the State,
the remainder shall be distributed pro rata among the claimants.



As a condition precedent to any such suit,
written notice shall be given to contractor and surety, within ninety days from
the date on which the person did or performed the last labor or furnished or
supplied the last of the material for which claim is made, stating with
substantial accuracy the amount claimed and the name of the party to whom the
material was furnished or supplied or for whom the labor was done or performed.



The written notice shall be served by
registered or certified mailing of the notice, to the contractor and surety, at
any place they maintain an office or conduct their business, or in any manner
authorized by law to serve summons.



(e)  Every suit instituted under subsection (d)
shall be brought in the circuit court of the circuit in which the project is
located, but no such suit shall be commenced after the expiration of one year
after the day on which the last of the labor was performed or material was
supplied for the work provided in the contract.  The obligee named in the bond
need not be joined as a party in any such suit.



The terms "labor" and
"material" have the same meanings in this section as the terms are
used in section 507-41. [L Sp 1993, c 8, pt of §2; am L 1997, c 349, §2 and c
352, §23]



 



Note



 



  L 1997, c 349 amendment applies to all contracts awarded
after July 1, 1997.  L 1997, c 349, §4.