FAR 28.101-2—Solicitation provision or contract clause.
Plain-English Summary
FAR 28.101-2 tells contracting officers when and how to use the bid guarantee solicitation provision or contract clause, and how to set the required guarantee amount. It covers insertion of a provision or clause substantially the same as FAR 52.228-1, Bid Guarantee, whenever a solicitation or contract requires a bid guarantee or similar guarantee, and it explains when that provision may be modified for specific situations. Those situations include setting a return period for executed bonds other than 10 days, using the provision in construction solicitations where only separate bid bonds are acceptable, using it in negotiated procurements, and using it in service contracts with options for extended performance. The section also requires the contracting officer to determine the bid guarantee amount and ties that amount to the need to protect the Government if the successful bidder fails to execute required contract documents and bonds. Practically, this section ensures the solicitation clearly states the guarantee requirement, the form it must take, and the financial exposure the Government is trying to cover, so bidders know exactly what is expected and agencies can enforce the requirement consistently.
Key Rules
Use the bid guarantee clause
When a solicitation or contract requires a bid guarantee or similar guarantee, the contracting officer must insert a provision or clause substantially the same as FAR 52.228-1, Bid Guarantee. This is the baseline requirement for telling offerors what guarantee is needed and what happens if the successful bidder does not follow through.
Clause may be tailored
The contracting officer may modify the provision for certain situations, including changing the time allowed to return executed bonds, limiting construction solicitations to separate bid bonds when required by FAR 28.101-1(b), using the provision in negotiated procurements, and using it in service contracts with options for extended performance. Any modification should still preserve the core purpose of the clause.
Contracting officer sets amount
The contracting officer must determine the bid guarantee amount for insertion in the provision at FAR 52.228-1. The amount must be sufficient to protect the Government from loss if the successful bidder fails to execute the required contractual documents and bonds.
Minimum and maximum limits
The bid guarantee amount must be at least 20 percent of the bid price and may not exceed $3 million. If the guarantee is stated as a percentage, the solicitation may also state a maximum dollar limitation to make the cap clear to bidders.
Purpose is Government protection
The guarantee is not just a formality; it is intended to protect the Government against loss caused by a bidder who wins but then refuses or fails to sign the contract or provide required performance and payment bonds. The amount should be set with that risk in mind.
Responsibilities
Contracting Officer
Insert a provision or clause substantially the same as FAR 52.228-1 whenever a bid guarantee or similar guarantee is required; modify the provision only as appropriate for the listed situations; determine the bid guarantee amount; ensure the amount is at least 20 percent of the bid price and does not exceed $3 million; and state any maximum dollar limitation when the guarantee is expressed as a percentage.
Agency
Ensure procurement policies and solicitation templates support proper use of the bid guarantee provision and any authorized modifications, especially for construction, negotiated procurements, and service contracts with options.
Bidders/Offerors
Review the solicitation carefully, provide the required bid guarantee in the stated form and amount, and be prepared to execute the required contract documents and bonds if selected.
Practical Implications
This section is a drafting rule as much as a risk-control rule: if the solicitation requires a bid guarantee, the clause must be there and the amount must be set correctly.
A common pitfall is using the wrong clause language or failing to tailor the provision when the procurement context calls for a modification, such as construction or negotiated acquisitions.
Another frequent issue is miscalculating the guarantee amount or forgetting the 20 percent minimum and $3 million maximum, which can create solicitation defects or enforcement problems.
Contracting officers should make sure the solicitation clearly states whether the guarantee is a percentage, a dollar amount, or both, and whether a cap applies.
Offerors should watch for the bond return period and any special construction or service-contract requirements, because missing those details can lead to rejection or default-type consequences if the awardee does not execute the follow-on documents.
Official Regulatory Text
(a) The contracting officer shall insert a provision or clause substantially the same as the provision at 52.228-1 , Bid Guarantee, in solicitations or contracts that require a bid guarantee or similar guarantee. For example, the contracting officer may modify this provision- (1) To set a period of time that is other than 10 days for the return of executed bonds; (2) For use in connection with construction solicitations when the agency has specified that only separate bid bonds are acceptable in accordance with 28.101-1 (b); (3) For use in solicitations for negotiated contracts; or (4) For use in service contracts containing options for extended performance. (b) The contracting officer shall determine the amount of the bid guarantee for insertion in the provision at 52.228-1 (see 28.102-2 (a)). The amount shall be adequate to protect the Government from loss should the successful bidder fail to execute further contractual documents and bonds as required. The bid guarantee amount shall be at least 20 percent of the bid price but shall not exceed $3 million. When the penal sum is expressed as a percentage, a maximum dollar limitation may be stated.