FAR 28.105—Other types of bonds.
Plain-English Summary
FAR 28.105 addresses the use of bond types other than the standard bid, performance, and payment bonds when the Government is acquiring particular supplies or services. It gives the head of the contracting activity authority to approve these alternative bonds, which the section identifies as including advance payment bonds and patent infringement bonds. The purpose is to give agencies flexibility to protect the Government’s interests when a procurement presents risks that are not adequately covered by the usual bond forms. In practice, this means a contracting office cannot simply decide on its own to require an unusual bond; the decision must be tied to the specific acquisition and approved at the proper organizational level. For contractors, this section matters because it can add financial security obligations beyond the normal bonding requirements and may affect pricing, financing, and proposal strategy. For contracting officers, it is a reminder to use these instruments selectively and only when justified by the nature of the supply or service being acquired.
Key Rules
Approval by HCA
The head of the contracting activity may approve the use of other types of bonds. This means the authority to require these bonds is not automatic at the contracting officer level and must come from the proper approving official.
Tied to specific acquisitions
These bonds may be used in connection with acquiring particular supplies or services. The requirement should be based on the needs and risks of the specific procurement, not imposed as a general practice.
Examples of other bonds
The section specifically identifies advance payment bonds and patent infringement bonds as examples of other types of bonds. These examples show the kinds of risks the Government may seek to protect against when standard bonds are not enough.
Protecting Government interests
The practical purpose of these bonds is to provide additional security where the Government faces special financial or legal exposure. They are meant to reduce risk in situations involving advance payments or potential patent liability.
Responsibilities
Head of the Contracting Activity
Review and approve the use of other types of bonds when the acquisition of particular supplies or services warrants additional protection. Ensure the decision is appropriate to the procurement and consistent with agency needs.
Contracting Officer
Identify when a procurement may require an alternative bond type, document the need, and obtain the required HCA approval before including the bond requirement in the solicitation or contract.
Contractor
Understand and comply with any approved alternative bond requirement, including arranging the necessary financial backing or surety support and factoring the cost and administrative burden into its proposal or performance planning.
Agency
Use alternative bonds only when justified by the acquisition and ensure internal controls are in place so that unusual bond requirements are properly reviewed and approved.
Practical Implications
This section is a control point: if a contracting office wants an advance payment bond or patent infringement bond, it needs the right approval before the requirement is imposed.
Contractors should watch solicitations carefully for nonstandard bond clauses, because these can affect cash flow, financing arrangements, and the cost of bidding.
A common pitfall is treating alternative bonds as routine boilerplate; FAR 28.105 makes clear they are exceptional and tied to specific procurement needs.
Another risk is failing to coordinate early with legal, finance, and surety resources, which can delay award or make a proposal noncompetitive.
For contracting officers, the key day-to-day issue is documenting why the standard bond structure is insufficient and ensuring the approval authority is properly exercised before solicitation release.
Official Regulatory Text
The head of the contracting activity may approve using other types of bonds in connection with acquiring particular supplies or services. These types include advance payment bonds and patent infringement bonds.