(a) When the total amount of construction contracts awarded for any one project exceeds three hundred thousand dollars ($300,000), a performance and payment bond as set forth in (1) and (2) is required by the contracting body from any contractor or construction manager at risk with a contract more than fifty thousand dollars ($50,000); provided that, for State departments, State agencies, and The University of North Carolina and its constituent institutions, a performance and payment bond is required in accordance with this subsection if the total amount of construction contracts awarded for any one project exceeds five hundred thousand dollars ($500,000). In the discretion of the contracting body, a performance and payment bond may be required on any construction contract as follows:
(1) A performance bond in the amount of one hundred percent (100%) of the construction contract amount, conditioned upon the faithful performance of the contract in accordance with the plans, specifications and conditions of the contract. Such bond shall be solely for the protection of the contracting body that is constructing the project.
(2) A payment bond in the amount of one hundred percent (100%) of the construction contract amount, conditioned upon the prompt payment for all labor or materials for which a contractor or subcontractor is liable. The payment bond shall be solely for the protection of the persons furnishing materials or performing labor for which a contractor, subcontractor, or construction manager at risk is liable.
(b) The performance bond and the payment bond shall be executed by one or more surety companies legally authorized to do business in the State of North Carolina and shall become effective upon the awarding of the construction contract. (1973, c. 1194, s. 1; 1983, c. 818; 1987 (Reg. Sess., 1988), c. 1108, s. 10; 1995, c. 367, s. 3; 2001-496, s. 7; 2010-148, s. 1.)
Notes of Decisions
James River Equip., Inc. v. Tharpe's Excavating, Inc., 634 S.E.2d 548 (N.C. Ct. App. 2006).
· cites it 10× “” N.C. Gen. Stat. § 44A-26. Our Courts have noted that such statutes provide a surety bond to provide the functional equivalent of a materialmen’s lien, which is available to those engaged in private construction, but not in public construction projects.”
Elec. Supply Co. of Durham, Inc. v. Swain Elec. Co., 403 S.E.2d 291 (N.C. 1991).
· cites it 6× “See N.C.G.S. § 44A-26 (1989). Together, plaintiff and amicus note that better supervision by such contractors and the relatively infrequent occurrence of a first-tier subcontractor becoming insolvent during construction will minimize the need for payment bonds, which concededly…”
S. Seeding Serv., Inc. v. W.C. English, Inc., 719 S.E.2d 211 (N.C. Ct. App. 2011).
· cites it 12× “As required by N.C. Gen. Stat. § 44A-26, APAC executed a Contract Payment Bond (the “payment bond”) with NCDOT in the amount of $101,558,741.”
James River Equip., Inc. v. Mecklenburg Utils., Inc., 634 S.E.2d 557 (N.C. Ct. App. 2006).
· cites it 4× “Here, plaintiff asserts claims as assignee of Tharpe’s, who was also a subcontractor under N.C. Gen. Stat. § 44A-26. For the reasons discussed in James River I, we affirm the trial court’s dismissal of *419 this claim as to defendant Board and we reverse as to defendant…”
Pyco Supply Co. v. Am. Centennial Ins., 364 S.E.2d 380 (N.C. 1988).
· cites it 3× “In all cases of public construction for which a payment bond is required under N.C.G.S. § 44A-26, the provisions of the Model Payment and Performance Bond Act, N.”
S. Seeding Serv., Inc. v. W.C. English, Inc., 735 S.E.2d 829 (N.C. Ct. App. 2012).
· cites it 2× “APAC in turn executed a Contract Payment Bond with NCDOT, as required by N.C. Gen. Stat. § 44A-26, which guaranteed payment to all subcontractors and material suppliers on the Project.”
Noland Co., Inc. v. Poovey, 295 S.E.2d 238 (N.C. Ct. App. 1982).
“G.S. 44A-26. Bonds required. —(a) A contracting body shall require of any contractor who is awarded a construction contract .”
Aetna Cas. & Sur. Co. v. Alpha Mech., Inc., 9 F. Supp. 2d 585 (W.D.N.C. 1998).
“It is not clear whether § 44A-26 insulates sureties who step in to manage a project, at least in part to minimize their exposure on a bond, from liability for damages that they in fact cause to co-primes of their principals.”
Mci Constructors, Inc. v. Hazen & Sawyer, Pc, 310 F. Supp. 2d 754 (M.D.N.C. 2004).
· cites it 3× “N.C. Gen.Stat. § 44A-26 (2003) ("[The performance bond] shall be solely for the protection of the contracting body that is constructing the project.”
Great Am. Ins. Co. v. Global Team Elec., LLC (W.D.N.C. 2020).
· cites it 2× “See N.C. Gen. Stat. § 44A-26. Such bonds were required for construction contracts for the Merancas Phase IV Classroom Building project at Central Piedmont Community College (“CPCC”), and GTE requested that Plaintiff execute bonds on GTE’s behalf for the CPCC project.”
Great Am. Ins. Co. v. Global Team Elec., LLC (W.D.N.C. 2020).
· cites it 2× “See N.C. Gen. Stat. § 44A-26. Such bonds were required for construction contracts for the Merancas Phase IV Classroom Building project at Central Piedmont Community College (“CPCC”), and GTE requested that Plaintiff execute bonds on GTE’s behalf for the CPCC project.”
— N.C. Gen. Stat. § 44A-26(a) — 2 cases
S. Seeding Serv., Inc. v. W.C. English, Inc., 719 S.E.2d 211 (N.C. Ct. App. 2011).
“As required by N.C. Gen. Stat. § 44A-26, APAC executed a Contract Payment Bond (the “payment bond”) with NCDOT in the amount of $101,558,741.”
Mci Constructors, Inc. v. Hazen & Sawyer, Pc, 310 F. Supp. 2d 754 (M.D.N.C. 2004).
“N.C. Gen.Stat. § 44A-26 (2003) ("[The performance bond] shall be solely for the protection of the contracting body that is constructing the project.”
— N.C. Gen. Stat. § 44A-26(a)(2) — 4 cases
S. Seeding Serv., Inc. v. W.C. English, Inc., 719 S.E.2d 211 (N.C. Ct. App. 2011).
“As required by N.C. Gen. Stat. § 44A-26, APAC executed a Contract Payment Bond (the “payment bond”) with NCDOT in the amount of $101,558,741.”
James River Equip., Inc. v. Tharpe's Excavating, Inc., 634 S.E.2d 548 (N.C. Ct. App. 2006).
“” N.C. Gen. Stat. § 44A-26. Our Courts have noted that such statutes provide a surety bond to provide the functional equivalent of a materialmen’s lien, which is available to those engaged in private construction, but not in public construction projects.”
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