FAR 28.103-4—Contract clause.
Plain-English Summary
FAR 28.103-4 tells contracting officers how to write the solicitation and contract clause when a non-construction acquisition requires surety protection through bonds. It covers four main subjects: inserting the proper clause from FAR 52.228-16, deciding when the clause applies because both payment and performance bonds are required, setting the bond amounts, and establishing the deadline for the contractor to return executed bonds. It also addresses use of Alternate I when only a performance bond is needed. In practice, this section ensures the Government has enforceable financial protection against contractor default and unpaid subcontractors or suppliers, while giving the contracting officer discretion to tailor bond amounts to the risk of the acquisition. The rule matters because the bond clause is not automatic in every contract; it must be deliberately included and properly completed so the Government’s protection is legally effective and commercially workable.
Key Rules
Insert the proper clause
When a solicitation or contract requires both payment and performance bonds, the contracting officer must include a clause substantially the same as FAR 52.228-16, Performance and Payment Bonds-Other than Construction. The clause must be used in the solicitation and the resulting contract so the bonding requirement is clearly stated and enforceable.
Set bond amounts
The contracting officer must determine the amount of each bond to be inserted in the clause. The amounts must be adequate to protect the Government’s interest, which means they should be based on the acquisition’s risk and the level of protection needed rather than a fixed default amount.
Allow time for bond return
The contracting officer must establish a period for the contractor to return executed bonds. The normal period is 10 days, but the contracting officer may adjust it as appropriate for the procurement and the circumstances.
Use Alternate I when only performance bond is needed
If the acquisition requires only a performance bond and not a payment bond, the contracting officer must use Alternate I to the clause. This ensures the clause matches the actual bonding requirement and avoids imposing unnecessary payment-bond obligations.
Match clause to requirement
The bonding clause must reflect the exact bond structure required by the solicitation. Using the wrong version or failing to tailor the clause can create ambiguity, delay award, or weaken the Government’s ability to enforce the bond requirement.
Responsibilities
Contracting Officer
Insert the appropriate FAR 52.228-16 clause in the solicitation and contract, determine the amount of each required bond, ensure the amounts adequately protect the Government’s interest, set the deadline for return of executed bonds, and use Alternate I when only a performance bond is required.
Contractor
Provide the required executed bonds within the time set by the contracting officer and ensure the bonds meet the stated amount and form requirements.
Surety/Guarantor
Issue the payment and/or performance bonds in the required form and amount so the contractor can satisfy the contract’s bonding condition.
Agency
Support acquisition planning and risk assessment so the contracting officer can set bond requirements and amounts that are appropriate for the procurement.
Practical Implications
This section is a drafting rule as much as a risk-control rule: if the clause is not inserted correctly, the Government may lose the protection it intended to obtain.
The contracting officer must make a judgment call on bond amounts; using a boilerplate amount without considering the acquisition risk can underprotect the Government or overburden the contractor.
The 10-day return period is a default, not a hard mandate, so officers should confirm whether the procurement schedule or bonding market conditions justify a different timeframe.
Using the wrong clause version is a common pitfall: if only performance bonding is needed, Alternate I should be used rather than the full payment-and-performance version.
Contractors should be prepared to secure surety support early, because failure to return executed bonds on time can delay award or create post-award compliance problems.
Official Regulatory Text
The contracting officer shall insert a clause substantially the same as the clause at 52.228-16 , Performance and Payment Bonds-Other than Construction, in solicitations and contracts that contain a requirement for both payment and performance bonds. The contracting officer shall determine the amount of each bond for insertion in the clause. The amount shall be adequate to protect the interest of the Government. The contracting officer shall also set a period of time (normally 10 days) for return of executed bonds. AlternateI shall be used when only performance bonds are required.