FAR 28.106-4—Contract clause.
Plain-English Summary
FAR 28.106-4 tells contracting officers which bond-related clauses must be included in solicitations and contracts when performance or payment bonds are required. It covers two specific clauses: FAR 52.228-2, Additional Bond Security, which is required whenever bonds are required, and FAR 52.228-12, Prospective Subcontractor Requests for Bonds, which is required when a payment bond will be furnished under the Miller Act bond framework in 40 U.S.C. chapter 31, subchapter III. The section also identifies an important exception: the 52.228-12 clause is not used for acquisitions of commercial products or commercial services as defined in FAR subpart 2.1. In practice, this section ensures the government can demand extra bond protection when needed and gives prospective subcontractors a formal way to request bond information on covered construction-type contracts. For contracting officers, the rule is a mandatory clause-insertion requirement, not a discretionary best practice. For contractors, it affects solicitation review, subcontracting communications, and compliance planning on bonded work.
Key Rules
Insert Additional Bond Security
When bonds are required, the contracting officer must include FAR 52.228-2, Additional Bond Security, in both the solicitation and the resulting contract. This clause gives the government a mechanism to require more bond protection if circumstances warrant it.
Insert Subcontractor Bond Clause
For contracts where a payment bond will be furnished under the statutory bond requirements in 40 U.S.C. chapter 31, subchapter III, the contracting officer must include FAR 52.228-12, Prospective Subcontractor Requests for Bonds. The clause supports subcontractors’ ability to request bond-related information on covered work.
Commercial Items Exception
The 52.228-12 clause is not required for acquisitions of commercial products or commercial services as defined in FAR subpart 2.1. This exception limits the clause to noncommercial acquisitions that fall within the statutory payment bond framework.
Mandatory Clause Inclusion
The section uses mandatory language: the contracting officer "shall" insert the clauses when the stated conditions are met. Failure to include the required clause can create compliance issues and may complicate administration of the contract.
Tie to Bonded Contracts
These requirements apply only in the context of contracts where bonds are required or where a payment bond will be furnished. The clause selection depends on the type of bond requirement and the nature of the acquisition.
Responsibilities
Contracting Officer
Determine whether bonds are required and, if so, insert FAR 52.228-2 in the solicitation and contract. For contracts where a payment bond will be furnished under the applicable statute, also insert FAR 52.228-12 unless the acquisition is for commercial products or commercial services.
Contractor
Review the solicitation for required bond clauses, understand any additional bond security obligations, and ensure subcontracting and bonding arrangements can support compliance with the contract terms.
Prospective Subcontractor
Use the rights provided by FAR 52.228-12, where applicable, to request bond information related to the covered contract and evaluate whether the prime contractor’s bonding arrangements affect subcontract performance risk.
Agency
Ensure acquisition planning and solicitation preparation reflect the correct bond requirements and that required clauses are consistently used in covered procurements.
Practical Implications
Contracting officers should verify both whether bonds are required and whether the procurement is commercial before selecting clauses; the wrong clause set can create avoidable compliance problems.
For construction and other bonded noncommercial work, subcontractors may rely on the 52.228-12 clause to obtain bond-related information, so omitting it can create disputes or administrative corrections.
Contractors should expect additional bonding scrutiny on covered contracts and should coordinate early with sureties, especially if the government may require additional bond security under 52.228-2.
The commercial products/commercial services exception is important: do not automatically add 52.228-12 to every contract involving a payment bond concept; confirm whether FAR subpart 2.1 applies.
Because the rule is mandatory, omission of the clause is not just a paperwork issue—it can affect enforceability, contract administration, and the parties’ understanding of bond-related rights and obligations.
Official Regulatory Text
(a) The contracting officer shall insert the clause at 52.228-2 , Additional Bond Security, in solicitations and contracts when bonds are required. (b) In accordance with secti on 806(a)(3) of Public Law 102-190, as amended by sections 2091 and 8105 of Public Law 103-355 ( 10 U.S.C. 4601 note prec.), the contracting officer shall insert the clause at 52.228-12 , Prospective Subcontractor Requests for Bonds, in solicitations and contracts with respect to which a payment bond will be furnished pursuant to 40 U.S.C chapter 31, subchapter III, Bonds (see 28.102-1 ), except for contracts for the acquisition of commercial products or commercial services as defined in subpart 2.1 .