CivilCovered

Guarantees · 3 min read

Performance guarantee versus insurance: the commercial difference

Insurance is designed to compensate the insured for a loss caused by an insured event, within the policy terms. A performance guarantee protects the employer: if the contractor defaults, the guarantee provider pays the employer and normally recovers that money from the contractor. A guarantee is a form of credit support, not insurance for the contractor, and a contractor who signs for one accepts a repayment obligation.

Who is protected, and who pays in the end

Insurance and guarantees compared
PointInsurancePerformance guarantee
Who is protectedThe insured, for the loss insuredThe employer (the beneficiary)
What triggers paymentAn insured event under the policy termsA demand that meets the guarantee wording, which may be on demand or conditional
Who pays in the endThe insurer, within limits and subject to the policy terms and excessThe contractor, normally, through reimbursement of the provider
Relationship to the contractorThe contractor is the policyholderThe contractor gives a counter-indemnity to the provider
Security requiredUsually none beyond premium and conditionsProviders may require security, sureties or collateral
Purpose in a contractManages accidental loss and liability risksGives the employer security against the contractor’s failure to perform
Typical exampleContractors All Risk, public liability, plantBid bond, performance guarantee, advance payment guarantee, retention guarantee

Repayment obligations

When a guarantee is called, the provider pays the employer according to the wording. It then looks to the contractor under the counter-indemnity the contractor signed. In practice that means that a call on the guarantee is a call on the contractor’s balance sheet, even though the provider paid first.

Whether the employer was entitled to make the demand is a separate question, to be dealt with under the contract and the guarantee wording. In some forms of guarantee, the provider must pay on a compliant demand even if the contractor disputes it, and the argument follows. That is why the wording matters so much.

On demand and conditional guarantees

On-demand style
The provider pays on a written demand that meets the wording, often without the employer having to prove default. This gives the employer fast access to security, and the contractor carries the risk of an improper demand.
Conditional style
Payment depends on stated conditions being met, such as proof of default or an adjudication or court outcome. This can offer the contractor more protection but may be less acceptable to some employers.

The employer’s contract documents often prescribe the wording. Departing from it may lead to the guarantee being rejected.

Why a contract may require both

Contracts often require insurance and security together because they address different risks. Insurance deals with accidental loss to the works and liability to third parties. Guarantees deal with the employer’s credit exposure to the contractor. Holding one does not replace the other. See insurance after winning a tender for how to handle both.

  • A Contractors All Risk policy does not secure the contractor’s performance of the contract.
  • A performance guarantee does not compensate the contractor for damage to the works.
  • Neither is a substitute for the contractor’s own financial planning.

Capacity, cost and planning

Providers decide how much security they will issue for a given contractor, and what they charge. Using capacity on one contract may limit what is available for the next. It is sensible to plan guarantees as part of the tendering decision, along with insurance and cash flow. See how to get construction tenders.

Common questions

Can insurance cover a guarantee that is called?

Not as a general rule. A guarantee is a credit arrangement between you and the provider. If it is called, you normally have to reimburse the provider, and a standard insurance policy does not pay that.

Is a performance bond the same as a performance guarantee?

People use the terms interchangeably. What matters is the actual wording: who the provider is, what triggers payment, the amount and the expiry.

What happens to the guarantee when the contract ends?

It ends according to its wording, which is often tied to practical completion or the end of the defects period. The original should be returned to the provider once it is no longer needed.

Why might a provider ask for director suretyships?

Because the provider’s recourse is against the contractor, and a small business may not hold enough assets of its own. Whether this applies is a decision for the provider.

Contract asks for both insurance and security?

Send us the clauses. We will help you see what is being asked for and what we can assist with.

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