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Does anyone know if there is a waiver process to the payment protection requirements in 28.102-1(b) (please see below).  28.102-1(a) references a waiver option, but (b) doesn't appear to, but given the small dollar amount I find it hard to believe there isn't one.  I'm still researching this and my legal office is my next stop, but was hoping someone here might have a quick answer - thanks!!!

Mike 

28.102-1 General.
(a) 40 U.S.C. chapter 31, subchapter III, Bonds (formerly
known as the Miller Act), requires performance and payment
bonds for any construction contract exceeding $150,000,
except that this requirement may be waived—
(1) By the contracting officer for as much of the work
as is to be performed in a foreign country upon finding that it
is impracticable for the contractor to furnish such bond; or
(2) As otherwise authorized by the Bonds statute or
other law.
(b)(1) Pursuant to 40 U.S.C. 3132, for construction contracts
greater than $35,000, but not greater than $150,000, the
contracting officer shall select two or more of the following
payment protections, giving particular consideration to inclusion
of an irrevocable letter of credit as one of the selected
alternatives:

 

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Mike, are you looking for a waiver of payment protection for a contract for construction less than $150k that would be performed overseas, particularly on non US owned property?

As I recall, our overseas construction contracts generally required performance guarantees other than bonds, such as Bank Letters of Guarantees, in lieu of performance bonds.

Since persons or contractors, subs and suppliers can’t file mechanic liens on property owned by the US Government in the US or in US Territories, payment protections are required for such contracts over $150k to help protect workmen, subs and suppliers.  

The KO may be able to waive the amount or type of payment protection but not the requirement. 

So, what kind of a waiver are you seeking? Performance, Payment, both? Domestic or foreign locations? 

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I'm looking for a way to waive the payment protection requirement required in 28.102-1(b), for work at a domestic, government-owned property.  We have emergency repairs needed and don't want to delay the work waiting for a contractor to get payment protection (although I know in many cases a payment bond might take only 1-3 days to get, we want to streamline this as much as possible).  Since I've posted the above, my legal counsel has said they have found no way to waive this requirement.  I'm hoping someone might be able to say otherwise.    

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You don’t necessarily need a payment bond.  

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My thought is that there is no opportunity to waive when you consider the supporting USC as its wording unlike the Miller Act provides no language for waiver - reference 40 U.S. Code § 3132.  Seems payment protection "shall" be selected  from those available.   Saying this as first thought was that a individual deviation might be an option but FAR 1.402 appears to preclude the option  on the fact that the requirement  of 40 U.S. Code § 3132.  But then again there is the wiggle room of 1.402 as well.

Just my read anyway......

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On 1/17/2018 at 7:49 PM, C Culham said:

My thought is that there is no opportunity to waive when you consider the supporting USC as its wording unlike the Miller Act provides no language for waiver - reference 40 U.S. Code § 3132.  Seems payment protection "shall" be selected  from those available.   Saying this as first thought was that a individual deviation might be an option but FAR 1.402 appears to preclude the option  on the fact that the requirement  of 40 U.S. Code § 3132.  But then again there is the wiggle room of 1.402 as well.

Just my read anyway......

Thanks - our conclusion too was that we can't waive the requirement.  Thanks for everyone's time in responding.

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